Monday, February 09, 2015

IPT on mass surveillance - it's alright now, move along...

On Friday last, Investigatory Powers Tribunal (IPT) ruled, in Liberty & Ors v The Secretary of State for Foreign and Commonwealth Affairs & Others (Case No: IPT/13/77/H), that the UK government had been breaking the law, for an indeterminate number of years, in the context of intelligence sharing operations between the NSA and GCHQ.

Basically the tribunal said mass surveillance was illegal when we didn't know about it. But now we do, as a result of some documents the government were obliged to release during this case, it's entirely fine and hunky-dory. It's perfectly grand, as an old friend of mine used to say. The documents don't tell us about the mass surveillance but they provide "a sufficient signposting of the rules or arrangements insofar as they are not disclosed".


There is... er... might be... mass surveillance er in theory.

If there... er... were mass surveillance, it is under control because there are rules.

We're not telling you the rules.

They are secret.

But trust us, there are rules, aka "adequate arrangements in place for the purpose of ensuring" respect for privacy and freedom of expression under articles 8 and 10 respectively of the European Convention on Human Rights (ECHR).

And we have "a sufficient signposting of the rules or arrangements insofar as they are not disclosed".

Don't worry your fluffy little head about it citizen friend. The good guys are in charge.

So, because the government have finally agreed to tell us there are rules governing mass surveillance, something the IPT ordered them to do following submissions from Liberty & others last summer, and the IPT is satisfied everything is ok, even though it may not have been, er... technically, before they er... agreed to tell us there were rules.

And oh, they were only guilty of not telling us there were rules but now they are not guilty of anything because they have told us there are rules.

We're not, however, allowed to know what the rules are...

The government and intelligence services never comment on matters of national security (except to spread fear and hang on wasn't that the terrorists' intent), other than with the standard boilerplate,
“All of the work of the brave men and women in the intelligence and security services is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary and proportionate ...”
So move along... nothing to see...

From the IPT order on Friday:
"(i) THAT prior to the disclosures made and referred to in the First Judgment and the Second Judgment, the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or (on the Claimants’ case) Upstream, contravened Articles 8 or 10 ECHR, but
(ii) THAT it now complies with the said Articles."
It's the first time since it was established in 2000 that the secretive tribunal has formally ruled that the intelligence services acted outside the law. Liberty, Privacy International and Amnesty, who had funded the legal challenge, were keen to note the decision as a historic victory but nevertheless only a small step on the road to reigning in mass surveillance. They plan now to pursue the case to the European Court of Human Rights.

The IPT had previously ruled, in December 2014, that the intelligence sharing had not contravened Articles 8 or 10 of the European Convention on Human Rights.

Friday's decision was more of a technical than a substantive victory for the civil rights groups. Indeed GCHQ expressed their pleasure at the decision in a statement,
"The judgment reaffirms the IPT’s main December ruling which found strongly in favour of the Government. The Court ruled that the legal frameworks governing both the bulk interception regime (found in section 8(4) of the Regulation of Investigatory Powers Act or RIPA), and the intelligence-sharing regime, were fully compatible with human rights, in particular the right to privacy.
The judgment focuses primarily on a discrete and purely historical issue – whether those legal frameworks were also fully compatible at a point before these legal proceedings began.
It confirms the UK’s bulk interception regime was fully compliant with the right to privacy at all times, both before and at the time of the legal proceedings.
A GCHQ spokesperson said: "We are pleased that the Court has once again ruled that the UK’s bulk interception regime is fully lawful. It follows the Court’s clear rejection of accusations of ‘mass surveillance’ in their December judgment."
They went on to dismiss the loss as a technical blip,
"The IPT has, however, found against the Government in one small respect in relation to the historic intelligence-sharing legal regime. The Court has ruled that the public disclosure of two paragraphs of additional detail, voluntarily disclosed by the Government during the litigation, were essential to make the public regime sufficiently foreseeable and therefore fully compatible with the European Convention of Human Rights. They found that to the extent that these two paragraphs were not previously in the public domain, the intelligence-sharing regime prior to that point was in contravention of human rights law.
But the judgment does not in any way suggest that important safeguards protecting privacy were not in place at all relevant times. It does not require GCHQ to change what it does to protect national security in any way."
So who's got the real bragging rights - Liberty & co or GCHQ? Well in a sense they both do. Liberty & co get to say it's historic since the IPT have never ruled against the government before. The Guardian as a bonus get to take out some justifiable angst on their UK mainstream media fellow travellers, who have been undermining their reporting on mass surveillance at every turn.  GCHQ and the government get to say don't worry about it, minor blip, all fixed, nothing to see here anymore, move along.

So everyone wins, right?


As long as the mass surveillance that has become normalised in the past 15 years continues, everyone loses.

Update: some links on the case shared on Twitter on Friday last.

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