UK comms regulator Ofcom can't be ordered to ignore its legal duties, the High Court has ruled, paving the way for GSM gateway operators to claim compensation after Home Office ministers and mandarins destroyed their businesses.
VIP Communications Ltd won its judicial review against the Home Office last week while the country was closing down for Easter. It successfully argued that a ministerial direction banning cheap call gateways was ultra vires – outside the government's legal powers.
Cheap call? Hardly. GSM gateway judicial review to settle whether UK Home Sec can legally push comms watchdog aroundREAD MORE
"If a statute is to confer upon a member of the Executive the power to override a duty in other primary legislation," said Mr Justice Morris in his judgment of 17 April, summarising VIP Communications' legal arguments, "then clear and specific words are required." He went on to rule that there were no such words allowing security minister Ben Wallace to ban GSM gateways, as he did in 2017.
The Home Office's lawyers argued before the Administrative Court that Ofcom, as the regulator in charge of the technical aspects of GSM gateways, "is also under a duty to act in accordance with directions given by the Secretary of State." Mr Justice Morris ruled that section 5 of the Communications Act 2003 could not, in this case, be read as overriding Ofcom's duties under section 8(4) of the Wireless Telegraphy Act 2006.
The full judgment, 100 paragraphs of dense legalese and interpretation, is here.
This case has a long history going back to the early 2000s, when GSM gateways were originally banned because they were claimed to cause "harmful interference" to mobile networks. Developments in EU law meant the UK could no longer, legally, keep the ban in force and so Ofcom reluctantly let it drop in 2017 while urging the Home Office to use its powers and overrule the regulator, egged on by anonymous lobbying from the Home Office Investigatory Powers Unit.
Stranger still was the personal involvement and lobbying of the Home Office's Permanent Secretary, Sir Philip Rutnam, over a matter well below his paygrade. The Register has since learnt that Rutnam worked for the Radio Communications Agency, one of Ofcom's predecessors, and may have been involved with the original decision to ban gateways in the early 2000s on the grounds they caused "harmful interference" to mobile networks, something later thrown out (some years ago now) by the courts.
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GSM gateways were common features of the 1990s and early 2000s telephone landscape. At the time, phone companies charged eye-wateringly high sums for overseas calls. In those dreary pre-Skype and pre-WhatsApp days, if you wanted instant contact with loved ones the phone was your only option. GSM gateways themselves, banks of SIM cards, worked a bit like a modern VPN does for an internet connection: you call the gateway, then once connected you enter the overseas number you want to be connected to. Government officials have claimed they frustrate surveillance by spy agencies and others because identifying caller data is not forwarded through the gateway, making it difficult to eavesdrop on a particular call going overseas.
A Home Office spokeswoman told The Register about the latest judgment: "We have been clear that the operation of commercial multi-user gateways can have the impact of masking the identities of suspected terrorists and criminals which threatens our national security. We will consider the judgment and our response carefully."
Former GSM gateway operator Daniel Mahony, who spent nearly eight years languishing on bail as the State frantically tried its best to get a conviction against him for the crime of operating a gateway, told us:
"I lost almost a decade of my life on bail for something that wasn't an offence, not to mention the ruined livelihoods of other gateway operators. As a result, all UK citizens paid an artificially high price for years to call a mobile phone."
If Mr Justice Morris's judgment is appealed, The Register will be covering it. Either way, the outcome is likely to be expensive for the Home Office. ®