UK spy agencies sharing bulk personal data with foreign allies was legal, says court

Yes, that thing they've never publicly admitted they do


A privacy rights org this week lost an appeal [PDF] in a case about the sharing of Bulk Personal Datasets (BPDs) of UK residents by MI5, MI6, and GCHQ with foreign intelligence agencies.

The British agencies have never stated, in public, whether any of them have shared BPDs with foreign intelligence agencies – they have a so-called "neither confirm nor deny" (NCND) policy – but the judgment noted it "proceeds on the assumption that sharing has taken place."

The true position, as noted by Queen's Bench Division president Dame Victoria Sharp in the judgement, was revealed to the defendant in its closed hearings.

The defendant in the case was the Investigatory Powers Tribunal (IPT), a secret, independent body established under the controversial Regulation of Investigatory Powers Act 2000 (RIPA).

The decision means a contested part of a 2018 ruling by the IPT will stand: that safeguards and rules around data collection between 2015 to 2017 by the state agencies meant that sharing that data was legal – "compatible with article 8 of the European Convention of Human Rights."

Dismissing Privacy International's claim for judicial review, the Queen's Bench Division judgement stated that this was despite the Tribunal identifying "serious errors that had been made by GCHQ."

According to the judgement:

The Tribunal... considered a significant amount of written and oral evidence. It was dissatisfied with the way in which the evidence emerged from GCHQ. This involved, on a number of occasions, statements made by GCHQ having "to be subsequently corrected" as a result of "re-thinking or double-checking."

Among other things, the IPT and spy agency regulator the Investigatory Powers Commissioner (IPCO), part of the new regime as of 2017, are supposed to have oversight of the conduct of the Security Service (MI5), the Secret Intelligence Service (MI6), and the Government Communications Headquarters (GCHQ), the signals intelligence unit famously housed in a doughnut-shaped building in Cheltenham that may or may not have employed a Register writer in its time.

Tom de la Mare QC, for Privacy International, challenged the application of NCND over whether BPDs had been shared by GCHQ with foreign agencies, pointing out that was untenable given the content of IPCO's 2019 report, which refers to a "fact-led review of the sharing that has taken place in the past" and talks about making changes in the future.

Before March 2015, the UK's spy agencies never publicly admitted they used BPDs, which the judgement characterized as a dataset that "contains personal data about individuals, the majority of whom are unlikely to be of intelligence interest, and that is incorporated into an analytical system and used for intelligence purposes. Typically, such datasets are very large, too large to be processed manually."

(The Register has heard industry talk of which database vendor's software is used to host the datasets, but hasn't seen enough evidence to repeat them here.)

The IPT ruled in 2016 that bulk collection of personal data by GCHQ and MI5 between 1998 and 2015 was illegal, with the post-2015 cases considering the transfer of data to other bodies. The main reason the data transfers were illegal? Because the public was unaware of them, and therefore there could logically be "no statutory oversight."

In this week's judgement, the court notes evidence given by MI5 in the 2016 tribunal hearing in its own defense, stating that it is "relevant to note that as BPDs are searched electronically there was inevitably significantly less intrusion into individuals' privacy, as any data which has not produced a 'hit' will not be viewed by the human operator of the system, but only searched electronically."

It also noted "correspondence with IPCO in which 'amber warnings' were given and 'criticisms' expressed" during the 2017/18 IPT hearings.

GCHQ Benhall doughnut aerial view

INSIDE GCHQ: Welcome to Cheltenham's cottage industry

READ MORE

Part of the reason why the tribunal's 2018 judgment was given "in closed" or "not published or disclosed to the claimant" was because the IPT considered it "damaging to the interests of national security."

Quis custodiet ipsos custodes

Last year The Register exclusively revealed that, according to a Home Office report, MI5's storage of personal data on espionage subjects was still facing "legal compliance risk" issues despite years of warnings from regulator IPCO.

Answering the question of whether MI5's data holdings are "now legally compliant," a Home Office report published on June 7 last year said MI5's "implementation of mitigations" for "identified risks" was still under way.

Every year the Investigatory Powers Commissioner has to make an annual report on the use of covert investigatory powers by public authorities. The 2020 report was quietly published [PDF] in January this year.

Interesting tidbits from the 2020 report:

  1. MI5's Bulk Oversight Panel, which normally sits monthly, replaced their face-to-face meetings with email comms during lockdown.
  2. All but one of the "temporary judicial commissioners" IPCO appointed under emergency coronavirus legislation were over 70. This meant that IPCO had to find 10 younger High Court or Court of Appeal judges, who were "not considered clinically vulnerable" and rope them into service. Six months later, when the restrictions were loosened, the elder judges went back to work.
  3. The most intriguing detail? The intelligence agencies were allowed to apply for a specific bulk personal data warrant to retain and examine a dataset which included health records (subject to approval by the Secretary of State).

    The overseer of secret spy powers added: "We are unable to publish any details of whether, and to what extent, this power was used."

  4. 108 bulk personal datasets were asked for (up from 101 in 2019) with each one approved.

Separately, the UK government last week settled two human rights claims brought under Articles 8 (right to privacy) and 10 (freedom of expression) of the European Convention on Human Rights, handing £1,000 apiece in costs to Bureau of Investigative Journalism global editor James Ball and NGO Human Rights Watch.

Why the ECHR?

Even though the UK has left the European Union, it is still a participant in the European Convention on Human Rights (ECHR). As Brit solicitors Reiss Edwards point out here, that commitment was established before the current Trade, and Cooperation Agreement was finalized at the end of 2020 and comes despite some of the uglier discourse around Brexit feeding on the idea that immigrants' human rights were a barrier to deporting some folks.

The British government does, however, plan to repeal the UK's own Human Rights Act, and last year made public its scheme to replace it with a Bill of Rights at some point.

Big Brother Watch's legal and policy officer, Madeleine Stone, commented on the move: "The government's cynical attempt to rewrite human rights law poses a serious threat to our right to privacy.

"Limiting the ability of courts to uphold 'qualified rights' means Article 8 rights could be drastically watered down.

"The Justice Secretary's plans would concentrate power in the hands of the executive and strip away vital protections contained within the Human Rights Act."

In the case, the UK government admitted that its surveillance regime prior to 2016 – where journalists' call records were accessed by cops to identify confidential sources – violated human rights laws. ®

Similar topics

Narrower topics


Other stories you might like

  • Quantum internet within grasp as scientists show off entanglement demo
    Teleportation of quantum information key to future secure data transfer

    Researchers in the Netherlands have shown they can transmit quantum information via an intermediary node, a feature necessary to make the so-called quantum internet possible.

    In recent years, scientists have argued that the quantum internet presents a more desirable network for transferring secure data, in addition to being necessary when connecting multiple quantum systems. All of this has been attracting investment from the US government, among others.

    Despite the promise, there are still vital elements missing for the creation of a functional quantum internet.

    Continue reading
  • Drone ship carrying yet more drones launches in China
    Zhuhai Cloud will carry 50 flying and diving machines it can control with minimal human assistance

    Chinese academics have christened an ocean research vessel that has a twist: it will sail the seas with a complement of aerial and ocean-going drones and no human crew.

    The Zhu Hai Yun, or Zhuhai Cloud, launched in Guangzhou after a year of construction. The 290-foot-long mothership can hit a top speed of 18 knots (about 20 miles per hour) and will carry 50 flying, surface, and submersible drones that launch and self-recover autonomously. 

    According to this blurb from the shipbuilder behind its construction, the Cloud will also be equipped with a variety of additional observational instruments "which can be deployed in batches in the target sea area, and carry out task-oriented adaptive networking to achieve three-dimensional view of specific targets." Most of the ship is an open deck where flying drones can land and be stored. The ship is also equipped with launch and recovery equipment for its aquatic craft. 

    Continue reading
  • Experts: AI should be recognized as inventors in patent law
    Plus: Police release deepfake of murdered teen in cold case, and more

    In-brief Governments around the world should pass intellectual property laws that grant rights to AI systems, two academics at the University of New South Wales in Australia argued.

    Alexandra George, and Toby Walsh, professors of law and AI, respectively, believe failing to recognize machines as inventors could have long-lasting impacts on economies and societies. 

    "If courts and governments decide that AI-made inventions cannot be patented, the implications could be huge," they wrote in a comment article published in Nature. "Funders and businesses would be less incentivized to pursue useful research using AI inventors when a return on their investment could be limited. Society could miss out on the development of worthwhile and life-saving inventions."

    Continue reading
  • SEC probes Musk for not properly disclosing Twitter stake
    Meanwhile, social network's board rejects resignation of one its directors

    America's financial watchdog is investigating whether Elon Musk adequately disclosed his purchase of Twitter shares last month, just as his bid to take over the social media company hangs in the balance. 

    A letter [PDF] from the SEC addressed to the tech billionaire said he "[did] not appear" to have filed the proper form detailing his 9.2 percent stake in Twitter "required 10 days from the date of acquisition," and asked him to provide more information. Musk's shares made him one of Twitter's largest shareholders. The letter is dated April 4, and was shared this week by the regulator.

    Musk quickly moved to try and buy the whole company outright in a deal initially worth over $44 billion. Musk sold a chunk of his shares in Tesla worth $8.4 billion and bagged another $7.14 billion from investors to help finance the $21 billion he promised to put forward for the deal. The remaining $25.5 billion bill was secured via debt financing by Morgan Stanley, Bank of America, Barclays, and others. But the takeover is not going smoothly.

    Continue reading
  • Cloud security unicorn cuts 20% of staff after raising $1.3b
    Time to play blame bingo: Markets? Profits? Too much growth? Russia? Space aliens?

    Cloud security company Lacework has laid off 20 percent of its employees, just months after two record-breaking funding rounds pushed its valuation to $8.3 billion.

    A spokesperson wouldn't confirm the total number of employees affected, though told The Register that the "widely speculated number on Twitter is a significant overestimate."

    The company, as of March, counted more than 1,000 employees, which would push the jobs lost above 200. And the widely reported number on Twitter is about 300 employees. The biz, based in Silicon Valley, was founded in 2015.

    Continue reading
  • Talos names eight deadly sins in widely used industrial software
    Entire swaths of gear relies on vulnerability-laden Open Automation Software (OAS)

    A researcher at Cisco's Talos threat intelligence team found eight vulnerabilities in the Open Automation Software (OAS) platform that, if exploited, could enable a bad actor to access a device and run code on a targeted system.

    The OAS platform is widely used by a range of industrial enterprises, essentially facilitating the transfer of data within an IT environment between hardware and software and playing a central role in organizations' industrial Internet of Things (IIoT) efforts. It touches a range of devices, including PLCs and OPCs and IoT devices, as well as custom applications and APIs, databases and edge systems.

    Companies like Volvo, General Dynamics, JBT Aerotech and wind-turbine maker AES are among the users of the OAS platform.

    Continue reading
  • Despite global uncertainty, $500m hit doesn't rattle Nvidia execs
    CEO acknowledges impact of war, pandemic but says fundamentals ‘are really good’

    Nvidia is expecting a $500 million hit to its global datacenter and consumer business in the second quarter due to COVID lockdowns in China and Russia's invasion of Ukraine. Despite those and other macroeconomic concerns, executives are still optimistic about future prospects.

    "The full impact and duration of the war in Ukraine and COVID lockdowns in China is difficult to predict. However, the impact of our technology and our market opportunities remain unchanged," said Jensen Huang, Nvidia's CEO and co-founder, during the company's first-quarter earnings call.

    Those two statements might sound a little contradictory, including to some investors, particularly following the stock selloff yesterday after concerns over Russia and China prompted Nvidia to issue lower-than-expected guidance for second-quarter revenue.

    Continue reading
  • Another AI supercomputer from HPE: Champollion lands in France
    That's the second in a week following similar system in Munich also aimed at researchers

    HPE is lifting the lid on a new AI supercomputer – the second this week – aimed at building and training larger machine learning models to underpin research.

    Based at HPE's Center of Excellence in Grenoble, France, the new supercomputer is to be named Champollion after the French scholar who made advances in deciphering Egyptian hieroglyphs in the 19th century. It was built in partnership with Nvidia using AMD-based Apollo computer nodes fitted with Nvidia's A100 GPUs.

    Champollion brings together HPC and purpose-built AI technologies to train machine learning models at scale and unlock results faster, HPE said. HPE already provides HPC and AI resources from its Grenoble facilities for customers, and the broader research community to access, and said it plans to provide access to Champollion for scientists and engineers globally to accelerate testing of their AI models and research.

    Continue reading

Biting the hand that feeds IT © 1998–2022