UK Tribunal: Secret Policies on Surveillance Violate Human Rights

Written by Sarah St.Vincent

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On February 6, the UK’s Investigatory Powers Tribunal, which handles challenges to the country’s secret-surveillance programs, ruled that the intelligence agency GCHQ had violated human rights when it failed to tell the British public about the kinds of circumstances in which it could conduct warrantless mining of Internet users’ communications that had been collected by the US National Security Agency (NSA).  The NSA intercepts these communications pursuant to the controversial PRISM and Upstream programs, which it operates on the basis of Section 702 of the US’ Foreign Intelligence Surveillance Act—a set of provisions that CDT believes are urgently in need of reform.

It does establish unambiguously that intelligence agencies in Britain are not permitted to conduct surveillance based on laws or legal interpretations that are kept completely secret from the public

Although the ruling will not halt any of the surveillance programs that the NSA, GCHQ, or their “Five Eyes” partners are carrying out, it does establish unambiguously that intelligence agencies in Britain are not permitted to conduct surveillance based on laws or legal interpretations that are kept completely secret from the public.  In that respect, the case—which was brought by our colleagues at Liberty, Privacy International, Amnesty International, and other organizations—is highly significant and will likely lead to further litigation arguing that any data GCHQ collected from the NSA before this year must be deleted.

The tribunal’s decision hinges on a series of prior judgments by the European Court of Human Rights, which are binding on the UK.  Those judgments require that the domestic legal regime that governs surveillance “must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures.”  The tribunal found that prior to December 2014, when GCHQ revealed certain basic information about how its warrantless requests for data from the NSA would operate, the intelligence agency had failed to comply with this “foreseeability” requirement and was therefore in breach of the rights to privacy and free expression found in the European Convention on Human Rights.  (To read what the agency revealed about these warrantless requests, see paragraph 47 of this judgment.)   The tribunal further found, however, that GCHQ’s disclosures have now fixed this problem.  The body also previously concluded that the agency’s actual conduct or participation in some of the secret-surveillance programs that Edward Snowden revealed does not violate privacy or other human rights.

Intelligence agencies violate human rights when they operate on the basis of secret laws or completely classified legal interpretations.

Although far from being a sweeping condemnation of GCHQ or NSA behavior, the decision nevertheless represents a step forward, not least because this is reportedly the first time the body has ever upheld a complaint about secret national-security surveillance in the UK.  The decision also represents an acceptance—however minimal—that neither the collection nor the sharing of intelligence can lawfully be conducted in a “black box,” such that members of the public know nothing about the potential invasions of their privacy.  As the European Court has long since established, and as the tribunal has now accepted, intelligence agencies violate human rights when they operate on the basis of secret laws or completely classified legal interpretations.

Unfortunately for the British public, the policies that GCHQ has now disclosed are hardly reassuring: the Secretary of State for the Home Department, a member of the executive branch, is invested with the sole power to authorize these warrantless requests for data; no court order is involved.  (Incidentally, GCHQ claims that it has never actually sought to engage in this warrantless surveillance—at least not through the procedures it has revealed.)  Moreover, the intelligence agency’s powers to obtain and store data that the NSA has vacuumed up through either targeted or mass surveillance remain unchanged.  Meanwhile, its own intelligence collection practices continue to be fundamentally inconsistent with the European Convention, as CDT has pointed out.

The good news is that the claimants in this case are likely to ask the European Court to determine whether GCHQ’s participation in a range of abusive programs violates the Convention, as two other organizations have already done.  The Court has examined the surveillance regimes of many countries over the past four decades, and it is likely to find that at least some of the most egregious aspects of the UK’s programs violate human rights and need to be altered or discontinued.  Those of us who advocate against excessive surveillance in the US context can also take heart from the fact that—as this ruling shows—the NSA can insist on total secrecy, but courts in other countries do not have to agree.

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