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.
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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.
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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:
- MI5's Bulk Oversight Panel, which normally sits monthly, replaced their face-to-face meetings with email comms during lockdown.
- 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.
- 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."
- 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. ®