Brit cyber-spies: Fancy meeting outside court to talk about evidence?

Regulator: Excuse me, I'm an independent body

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Blighty's surveillance nerve-centre GCHQ has asked its independent oversight body to consider working together to decide what evidence to submit to court, saying it would make the process "more efficient".

The suggestion was set out in a letter to UK Investigatory Powers Commissioner Adrian Fulford, dated November 8 and released today as part of evidence in an ongoing case between Privacy International and the spy agencies, handled by the Investigatory Powers Tribunal (IPT).

In the letter, the director of legal affairs for GCHQ – whose name is redacted – said the idea had occurred to the body during the ongoing case, where the campaign group is challenging the legality of the spy agencies' data slurping.

The proposals in the letter are couched in particularly verbose language, but boil down to asking whether Fulford's office (IPCO), GCHQ and possibly other government bodies, could set up a process, outside the courts, to discuss evidence.

The letter said that it "might be useful" for GCHQ "and perhaps the other agencies or wider government" to have a system that would "manage any circumstances where a piece of litigation... could raise issues in relation to oversight activity".

It does acknowledge that IPCO is an independent body, and so suggested a "transparent process" with the aim of "making our submission of evidence and presentation of facts or issues before the IPT... more efficient by reducing the risk of unnecessary misunderstandings and reducing the list of issues before the IPT".

Privacy International described the proposals as "disturbing" and a "brazen attempt to undermine the independence" of IPCO, which only started work in September.

It said the idea would amount to IPCO "cooperating with the government during legal actions against the government itself" and condemned what it deemed to be an attempt to take part of the proceedings outside the courts.

"GCHQ is in effect suggesting to the IPCO, 'can we agree your evidence before you give it to the Tribunal, so we avoid anything we don't like?'" said Millie Graham-Wood, Privacy International solicitor.

Fulford himself seemed less than impressed with the idea, saying that he did "not believe this would be appropriate", while pointing out that it was not his office's job to reduce the IPT's to-do list.

I am required to give the Tribunal all such documents, information and other assistance, including my opinion, as the Tribunal may require and I do not anticipate any situation where that engagement could be the subject of any form of prior agreement, however transparent, especially with a party which is subject to my oversight.

I would also say that it is not for my office to attempt to reduce the list of issues before the Tribunal but, rather, comply with our statutory obligations and provide a wholly independent assessment of the material before us.

Fulford also knocked back a second proposal from GCHQ, which asked if it was possible to "explore" options for "resolving any factual issues" in relation to current cases.

The commissioner said he was content with the process for dealing with minor factual issues, and that it was for the IPT to consider the significance of bigger differences, and therefore did "not believe it would be appropriate to explore options to resolve those".

Fulford added that he viewed independence as "a crucial aspect of the work of my office, and this factor has significantly underpinned my response to your suggestion".

In addition to rebuffing GCHQ's proposals, Fulford also made both letters public – GCHQ had noted only at the end of its letter that it would be "happy" to make the letter public "if that was thought to be appropriate".

His apparent commitment to transparency and willingness to stand up to GCHQ indicates that the new body might have more teeth than previous oversight bodies, something hinted at in previous exchanges brought to light during the hearing.

It was also noted by Graham-Wood. "If GCHQ believes these are acceptable propositions to make to its new independent regulator, one can only wonder, what did they do under the previous regulatory regime?

"We are pleased to see the new Commissioner doing his job by expressing in clear terms that his role is to provide a wholly independent assessment of the material before the IPT. Long may it last." ®

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