UK's Secretive Court Says Intelligence Sharing Between NSA And GCHQ Was Unlawful In The Past -- But Now It Isn't

from the power-of-transparency dept

Fri, Feb 6th 2015 9:33am — Glyn Moody

Techdirt has written about the Investigatory Powers Tribunal (IPT), which reviews complaints about surveillance in the UK, a number of times, noting that in addition to being secretive, it is pretty toothless, and generally approves of everything that the UK's secret services get up to. Against that background, a ruling released today by the IPT is pretty surprising: British intelligence services acted unlawfully in accessing millions of people's personal communications collected by the NSA, the Investigatory Powers Tribunal ruled today. The decision marks the first time that the Tribunal, the only UK court empowered to oversee GHCQ, MI5 and MI6, has ever ruled against the intelligence and security services in its 15 year history.

The Tribunal declared that intelligence sharing between the United States and the United Kingdom was unlawful prior to December 2014, because the rules governing the UK’s access to the NSA’s PRISM and UPSTREAM programmes were secret. It was only due to revelations made during the course of this case, which relied almost entirely on documents disclosed by NSA whistleblower Edward Snowden, that the intelligence sharing relationship became subject to public scrutiny.
As that explanation by Privacy International -- one of four claimants in this case -- mentions, the IPT found that sharing intelligence between the NSA and GCHQ was illegal, but now isn't. Here's why: In a previous December 2014 ruling, the IPT held that GCHQ's access to NSA data was lawful from that time onward because certain of the secret policies governing the US-UK intelligence relationship were made public during Privacy International's case against the security services. Yet that belated disclosure could not remedy the lack of transparency regarding the UK-US sharing prior to December 2014, meaning that all UK access to NSA intelligence material was unlawful before the Court’s judgement.
Rather bizarrely, the complaint about GCHQ's illegal actions in the past has made subsequent actions legal, at least according to the IPT. Two of the claimants in the case now hope to build on this judgment by asking the IPT to confirm that communications were collected unlawfully before December 2014, and to demand their deletion. Parallel to that, they also intend to appeal against the ruling that since then, intelligence sharing between the NSA and GCHQ has been legal: While we welcome today's decision, Privacy International and Bytes for All disagree with the tribunal's earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ's activities lawful as of December 2014. Both organisations will shortly lodge an application with the European Court of Human Rights challenging the tribunal's December 2014 decision.
So the battle to bring GCHQ's massive surveillance program under control, with proper safeguards for the public and meaningful oversight, continues. But at least a first victory has been gained from an unexpectedly helpful IPT.

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Filed Under: data sharing, gchq, investigatory powers tribunal, ipt, nsa, privacy, surveillance, uk
Companies: privacy international

19 Comments

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That One Guy (profile), 6 Feb 2015 @ 8:19am

Rubber stamps in robes
The decision marks the first time that the Tribunal, the only UK court empowered to oversee GHCQ, MI5 and MI6, has ever ruled against the intelligence and security services in its 15 year history.

Fifteen years, and all of one finding against(sorta) those they are tasked with overseeing.

With a record like that, it's pretty clear that they don't see their job as overseeing anything, and instead believe that their sole purpose is to provide cover for anything the three agencies might do, to provide legal 'justifications', no matter how thin or absurd.

And really, it's entirely possible, almost certain in fact, that that is their real purpose, to provide a thin veneer of legality for the government agencies that they are tasked with 'overseeing', much like the FISA 'court' in the US, which serves the same function.
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Ninja (profile), 6 Feb 2015 @ 8:45am

Re: Rubber stamps in robes
No! You got it wrong, it's just the intelligence services are behaving good and doing everything according to their secret interpretations of the law. Silly.
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That One Guy (profile), 6 Feb 2015 @ 9:53am

Re: Re: Rubber stamps in robes
Ah yes, gotta love those secret laws and secret interpretations of the laws.

'No see, everything we're doing is legal, honest, we just can't show you how our actions are legal, as the laws and interpretations that make it so are secret, classified, or both, so you just have to trust us on it.'
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Anonymous Coward, 6 Feb 2015 @ 10:05am

How long before they say murder and genocide were bad but are now okay to use an extreme example.
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That One Guy (profile), 6 Feb 2015 @ 10:10am

Re:
'Extreme'? The USG went from condemning torture to claiming that there's nothing wrong with it(when the US is the one doing it anyway), so that example isn't quite as extreme as it may seem.
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Anonymous Coward, 6 Feb 2015 @ 10:19am

We broke the law...
So we 'fixed' the law... move along!
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Anonymous Coward, 6 Feb 2015 @ 10:23am

Re: Re:
That's why he had to go to genocide to get an extreme example.
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Anonymous Coward, 6 Feb 2015 @ 10:52am

Re: Re: Re:
And with the rhetorics of the far right even that doesn't seem too extreme. We are nearing a class-based anarchy: Have the right connections and you are above any law. Btw. Money is an indicator, but not a guarantee for connections.
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Duke (profile), 6 Feb 2015 @ 10:56am

Text of the ruling..
The actual text of the ruling is here, for anyone interested.

From what I can tell this only covered sharing between the NSA and GCHQ of stuff from Prism or Upstream. Because the US Government has admitted that these programmes exist, Liberty etc. were able to bring a case in reference to them - unlike the UK's programmes (e.g. Tempora).

GCHQ admitted to having the legal power to access information collected through Prism/Upstream, and it was this power for which the limits on it weren't sufficiently clear. It took this case for them to admit what the limits were and what the legal position was - although they maintain that they haven't ever actually collected data from these programmes.

This is interesting as it means that GCHQ had powers that were unlawful (even if they never used them) despite repeated reassurances from all over that they didn't. And that it was only because of the information provided by Edward Snowden that these have now become legal.

By seeking to reveal unlawful surveillance and data sharing, Snowden has managed ot legalise some of it.
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DannyB (profile), 6 Feb 2015 @ 11:20am

Re: We broke the law...
If they can make it legal going forward, why can't they make it legal retroactively? Call it amnesty or whatever they like.

If they really want to be innovative they would come up with an authority to make things illegal retroactively. Now that would be progress, towards, um, something.
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Anonymous Coward, 6 Feb 2015 @ 11:27am

A good first step BUT I have to say this IPT...Just because the veil of secrecy was forced off leaving their operations naked and bare DOES NOT mean it's magically now legal cause the data collected prior is still very much illegal.

The hoops agencies are willing to jump through to keep spying on their girl/boyfriends...
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Zonker, 6 Feb 2015 @ 11:41am

Secret acts of government agencies are illegal until challenged in court, at which point the now leaked secret acts automatically become legal.

Catch-22
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DaveK (profile), 6 Feb 2015 @ 12:10pm

Only the sharing was illegal?!
The whole damn mass surveillance program is illegal, but they ignored that bit.
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Anonymous Coward, 6 Feb 2015 @ 2:12pm

"UK's Secretive Court Says Intelligence Sharing Between NSA And GCHQ Was Unlawful In The Past -- But Now It Isn't"

Doesnt work that way, theres no get out of jail free card in this scenario and i suspect enough people feel that way for you not being able to continue doing this against people's will

What are you doing TODAY that illegal and the only reason your able to do it today, is the same reason you were able to do it back then.....SECRECY, bullshit get out of jail free national security "top secret" card

I dont think so.........imagine a stubborn dog with a bone, now imagine my tenacity on this view equalling that dogs tenacity.......why, because i genuinely think and feel what you're/their trying to do is so wrong

ive come to a recent revelation, one of the biggest reasons why i DETEST surveillance, is, its equivalent to "legal" digital stalking.......one you cant do ANYTHING about
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Anonymous Coward, 6 Feb 2015 @ 2:30pm

Since when did passing a law to grant authority AFTER the fact become acceptable....oh right, it has'nt

What illegalities are happening today that the authority to do so has not yet been granted........essentially this being an example

Feels more like a vibe to "cover their asses"

I dont consent to stupid deceptive laws, forced maybe, but not by consent
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Anonymous Coward, 6 Feb 2015 @ 3:05pm

Re: Re: Re: Re:
With asset forfeiture it is. If you lack connections and get rich, well then you must have done something illegal and the government will take your money. For the children, of course.
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That One Guy (profile), 6 Feb 2015 @ 7:53pm

Re: Re: We broke the law...
What makes you think they're not going to at least try and do exactly that?

'Yes it was illegal, but they thought what they were doing was legal, so it would be unfair to punish them for their actions, or force them to delete the data they collected.'
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That One Guy (profile), 6 Feb 2015 @ 8:30pm

Re: Text of the ruling..
By seeking to reveal unlawful surveillance and data sharing, Snowden has managed ot legalise some of it.

Only due to the GCHQ having a 'court' in their back pocket. In a sane world, with an actually adversary court providing oversight, the response to finding out that the agency you're providing oversight to is committing illegal actions would be 'You are ordered to stop your questionable actions immediately, and file with the court all evidence related to your actions so that we may determine the proper punishment', not 'Well, while it may have been a problem before, now it's okay.'
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Padpaw (profile), 6 Feb 2015 @ 8:33pm

On one hand we have the current system which is hopelessly corrupt and if we keep going this direction were probably going to end up with a V for vendetta style of government. It is probably the most widely known example I could use.

On the other hand if people rebel and fight back militantly, I highly doubt whoever is victorious will reform the countries as they used to be, but will instead create something new which may end up being even worse than what we have now.

So, do we put up with the corrupt governments, until they destroy us or themselves or do we fight back and destroy everything regardless of good intentions.
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