A victory in the Investigatory Powers Tribunal. Or is it?

Yesterday’s big privacy headline was all about the mass data breach at the US insurance firm Anthem… today’s is about the Investigatory Powers Tribunal (IPT) ruling against GCHQ. For the first time since it was established in 2000, the IPT has ruled against an intelligence agency; GCHQ’s interception regime under the PRISM and UPSTREAM programs, it says, violated articles 8 (privacy) and 10 (freedom of expression) of the European Convention on Human Rights, and as a consequence, was unlawful from 2007 to 2014.

So far, so good: a succinct, clear and definitive ruling. And hats off, by the way to Privacy International, Amnesty International, Liberty, the ACLU, Bytes4All and others who stood up for citizens’ rights under the ECHR, getting this ruling despite the government’s ingrained unwillingness to release any data about governance of the intelligence services’ activities.  So unwilling are they that, even in the context of the Tribunal, they refuse to admit the existence of the TEMPORA program so clearly described in documents disclosed by Edward Snowden. As the Tribunal president puts it in the judgment:

“The alleged conduct itself is not admitted by the Respondents. It falls to be considered as a result of allegations made by Mr Edward Snowden, a former contractor for the National Security Agency (“NSA”) of the United States, by whom a very substantial quantity of documentation has been leaked and much put into the public domain.”

They only admit the existence of PRISM because – in the words of the senior civil servant concerned – “it has been expressly avowed by the executive branch of the US government”.

A huge victory, then? Regrettably not. GCHQ’s mass surveillance program continues exactly as before, and this ruling will not affect its operation in any way. There are two reasons why.

First, the IPT’s ruling of unlawfulness only applies to GCHQ’s actions up to December 2014. From then on, they are satisfied that the intercept regime is lawful.

Second, what was the basis for ruling the program unlawful from 2007 to 2014? It was that the ECHR requires any such interference with articles 8 and 10 to be conducted “in accordance with the law”; that, in turn, means it must not only have a basis in law, but that that legal basis must be sufficiently accessible and foreseeable to anyone potentially affected. In other words, this is not about whether the interception itself was acceptable: it’s about whether citizens were reasonably informed about the kinds of action to which the law is liable to give rise. The human rights basis for this is clear: justice and the rule of law cannot be served if citizens are governed by laws (or interpretations of those laws) that they cannot see.

So, what changed in December 2014?

Well, in the course of the Tribunal hearing, some evidence from the intelligence agencies was heard in the presence of the claimants, and some was heard behind closed session without them. This is part of the procedure for dealing with the special nature of intelligence-related hearings, where some of the relevant evidence is too sensitive to be discussed in open session. The claimants can be represented, in closed session, by a Special Advocate – but that was not the case in this hearing. The closed session is also attended by a Counsel to the Tribunal, whose role is to help the Tribunal, rather than represent the claimants. The Counsel is able to report back, in good faith, to the open session, such details as the intelligence services agree can safely be disclosed – this is to help reassure the claimants that the Tribunal is making its decision on a sound basis.

In this instance, the intelligence services explained, in closed session, some of the oversight mechanisms they apply in order to ensure that their interception activities are not indiscriminate or arbirtary. They agreed that some of that explanation could be taken back into the open session (and, as such, put into the public domain). It appears on page 26 of  the Tribunal’s December 2014 judgment, in paragraph 47. It sets out the conditions under which the intelligence services can request interception data from another country (such as the US) and the internal rules and safeguards that apply to the data received.

According to the judgment, the fact that these details are now in the public domain is enough to meet the ECHR’s requirement for foreseeability – a requirement which the European Court of Human Rights has expressed like this:

“in a system applicable to citizens generally … the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life” (Leander v Sweden, 1987)

In other words, it is the Tribunal’s judgment itself which, by including these details, renders GCHQ’s interception regime ‘foreseeable’ enough to comply with the ECHR. Although the Tribunal declined to admit it at the time, the logical corollary of this is that the interception regime was therefore not compliant in the absence of this explanation… and that is the substance of today’s judgment. Phew.

So, since nothing in the interception regime will change as a result, has the whole thing just been a huge waste of time?

No.

It is absolutely, vitally important that we should have legal means to challenge the policies and actions of our government and its agencies, whether those legal means are domestic (such as the IPT) or international (such as the ECHR). It’s to the credit of the claimants in this case that they were determined to exercise those legal means, and that they did so successfully.

It’s also important that the assertions of civil servants (such as Charles Farr), ministers (such as the Home Secretary) and those responsible for overseeing the intelligence services (such as Sir Malcolm Rifkind) be demonstrably open to challenge. All three of them repeatedly assured us that the surveillance regime was lawful, and all three of them have been shown to be wrong.

Where law enforcement and intelligence activities have to be carried out in secret, we rely entirely on the good faith and trustworthiness of those responsible for the governance regime. When they fall short – as they have done – we must have the means to find out, and call them to account.

We also have to learn lessons from this about the consequences of unlawful surveillance. The intelligence services now have seven years’ worth of surveillance data collected unlawfully. What are they going to do with it? That personal data is seven years’ worth of toothpaste that can’t be put back into the tube. At a time when the government keeps pressing, again and again, for increased powers of interception and surveillance, we should remind them, again and again, that mistakes here are indelible.

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