The UK’s Investigatory Powers Tribunal (IPT) ruled Friday that GCHQ’s mass surveillance TEMPORA program is legal ... in principle.
The IPT said that (again, in principle) British spooks are entitled to carry out mass surveillance of all fibre optic cables entering or leaving the UK under the 2000 RIPA law.
It made the ruling following a case brought against the secret services by Privacy International, Liberty, and Amnesty International following revelations last year by NSA loud-mouth Edward Snowden.
The secretive tribunal – which is supposed to keep intelligence agencies in check – was not in the business of verifying the Snowden leaks. Instead, it carried out its investigation "upon the basis of assuming the relevant allegations to be derived from Mr Snowden’s leaks to be true".
This is standard practice for the tribunal. Likewise the claimants did not need to prove their privacy had been breached in order for the tribunal to consider the principle of the case. “[This] enables claimants to bring claims without having the kind of arguable case which they would need to pursue a case in the High Court,” explains the IPT ruling.
However, after six days of hearings - five in open court and one in secret behind closed doors - the tribunal has asked for more information about whether receiving bulk intercepted material from foreign intelligence agencies (such as the NSA) has been lawful until up now.
TEMPORA as disclosed by Snowden intercepts internet traffic via fibre optic cables going into and out of the UK. However, the UK government will “neither confirm nor deny” its existence, making it difficult for the tribunal to discover if the mass surveillance program to tap undersea cables was proportionate.
“The Snowden revelations ... have led to the impression that the law permits the intelligence services carte blanche to do what they will. We are satisfied that this is not the case,” said the ruling.
The tribunal also found that there was no problem in sharing intelligence with the US National Security Agency, or accessing information obtained through the NSA’s PRISM programme. However, it relied on secret government policies in reaching this decision.
Privacy International and co-claimant Bytes for All will now challenge the IPT’s ruling at the European Court of Human Rights (ECHR), because although the tribunal found that “signposting” such policies to the general public is sufficient, the ECHR usually requires that the rules and procedures be public.
According to Privacy International: “The policies reveal that the government considers it justifiable to engage in mass surveillance of every Facebook, Twitter, YouTube and Google user in the country, even if there is no suspicion that the user has committed any offence, by secretly redefining Britons’ use of them as 'external communications'.”
Privacy International deputy director Eric King said: “Today's decision by the IPT that this is business as usual is a worrying sign for us all. The idea that previously secret documents, signposting other still secret documents, can justify this scale of intrusion is just not good enough, and not what society should accept from a democracy based on the rule of law."
According to the claimants, the IPT has never ruled in favour of the claimants in any case against the intelligence or security services. ®