The UK's only judicial body for hearing complaints against the intelligence services has ruled claimants must show why their communications are "potentially at risk" of being collected by the government's mass-surveillance activities.
On Monday the Investigatory Powers Tribunal (IPT) handed down its judgment which threatened to dismiss Britons' complaints against GCHQ, while also throwing out the applications of those whom it ruled were not protected by the European Convention on Human Rights (ECHR).
The applications were initially brought following a legal victory at the IPT which found that GCHQ had acted unlawfully in accessing personal communications collected by the NSA.
Following that case, Privacy International launched a campaign titled “Did GCHQ illegally spy on you?”, which sought to solicit applications from those affected by mass-surveillance activities, and resulted in 663 applications to the IPT.
In a bizarre and untimely judgment, which was handed down by the Tribunal today (PDF), those claimants have been told that the evidence they had submitted – namely, the IPT's own findings – was insufficient and they were each actually required to submit information as to why they were "potentially at risk."
Electing to hear the first ten applications it received "in order to enable issues to be addressed as to whether the claims should be investigated," the Tribunal explained that the cases "are not strictly test cases or even sample cases, but cases on the basis of which [it would be decided] whether any of the 663 cases should be considered."
Only six of those 10 claimants were deemed to have provided enough information for the IPT. This was thanks to their pro bono counsel, which had been unable to contact the other four ahead of the hearing. According to Scarlet Kim, the Legal Officer at Privacy International, the additional information requested was not particularly clear-cut.
As Kim told The Register, "I don't know who's potentially not at risk."
However, the tribunal stated it was "entirely satisfied that there is insufficient information in the standard form which is being used by all the other 657 Claimants (including the rest of the Ten) to justify" the hearing of their complaints.
Complaints against GCHQ's mass-surveillance activities will be dismissed unless they can be supplemented by evidence of the claimants' being surveilled, according to the UK's judicial body for hearing complaints against the intelligence services.
These other claimants have been asked to provide additional submissions as to why they were "potentially at risk" of being subject to mass-surveillance, and to do so within 28 days or their "claims will stand dismissed as unsustainable, that is frivolous within s.68(4) of RIPA."
In addition to this, the IPT has refused to hear the claims of those who are not resident in the UK, claiming that they are outside of the court's jurisdiction.
Privacy International has explained that it believes that all of the claims of unlawful surveillance should be allowed to proceed to the tribunal as, if the surveillance was conducted on British soil, it was subject to the ECHR and the victims of that human rights violation should be entitled to judicial relief despite their location.
Scarlet Kim said that "the Tribunal's refusal to recognise the human rights claims of non-UK residents is ill-founded. When a member state to the European Convention on Human Rights commits a human rights violation on its own territory - whether by unlawfully suppressing free speech rights, expropriating property, or conducting surveillance - the victims are entitled to judicial relief no matter where they live."
The Register was informed that this aspect of the judgment will be appealed in Strasbourg, at least by the two non-domestic claimants of the 663.
The Tribunal's "requirement that claimants submit further information on why they think they would be spied on before deciding whether to fully investigate their claims is unacceptable," added Kim.
"While we are pleased that the Tribunal will, if additional submissions are made, proceed to consider the domestic claims of persons asserting that the British intelligence agencies unlawfully collected their communications, the Tribunal's failure to provide adequate redress to all victims of illegal spying is concerning," Kim stated.
"An essential feature of any true democratic society is that covert breaches of the law are disclosed to the victims," she concluded: "The Tribunal's decision is yet another example of the lack of genuine and rigorous public scrutiny of the British intelligence services." ®