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Intercepts by GCHQ Violated Privacy Rights

  • June 28, 2015
  • Clayton Rice, Q.C.

On June 22, 2015, the British government’s intelligence monitoring agency released its ruling that the interception of private communications of two international human rights groups by the Government Communications Headquarters (GCHQ) was illegal and in breach of Article 8 of the European Convention on Human Rights (ECHR). Article 8(1) provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8(2) contains a proviso which states, in part, that there shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security or public safety.

In proceedings under the Regulation of Investigatory Powers Act (RIPA), the Investigatory Powers Tribunal (IPT) upheld complaints by the Egyptian Initiative for Personal Rights and the South African Legal Resources Centre that their communications were illegally retained and examined. The IPT made “no determination” on three other claims that included Privacy International, the American Civil Liberties Union and the Canadian Civil Liberties Association implying that their emails and telephone calls were not intercepted or, if they were, the intercepts were done by legal means. The tribunal expressed concern, at para. 18, that steps should be taken to ensure that “procedural breaches do not occur again” and emphasized that it would be making a “closed report” to the prime minister. (See: Egyptian Initiative for Personal Rights et al v. The Government Communications Headquarters et al, [2015] UKIPTrib 13 77-H 2; Case No.: IPT/13/168-173/H)

In respect of the complaint by the Egyptian Initiative for Personal Rights, the IPT found, at para. 14, that emails were “lawfully and proportionately” intercepted and accessed but that they were retained for “materially longer” than permitted. The tribunal therefore declared that the claimant’s right to privacy under Article 8 of the ECHR was breached. However, the emails were not accessed after the expiry of the retention time limit and the breach was therefore characterized as technical. The breach of Article 8 flowed from, “…the fact that retention of intercept in and of itself constitutes an interference with [the claimant’s] Article 8 rights, irrespective of what was done with it thereafter, and from the fact that such an interference can be justified if and only if it is “in accordance with the law“. GCHQ was therefore ordered to destroy the communications that were retained for longer than the retention time limit. The tribunal made no award of compensation because the claimant did not suffer “material detriment, damage or prejudice”.

Regarding the complaint of the South African Legal Resources Centre, the IPT found, at para. 15, that the interception of emails was “lawful and proportionate” but that “the procedure laid down by GCHQ’s internal policies for selection of communications for examination was not followed” in this case. This also constituted a breach of Article 8 of the ECHR for the same reasons. However, since no use had been made of the intercepted material, nor any record retained, the tribunal concluded that the claimant did not suffer “material detriment, damage or prejudice” as a result of the breach and the tribunal’s “open determination” constituted just satisfaction.

In an article titled Court Says GCHQ Spied On Human Rights NGOS, Acted Unlawfully dated June 22, 2015, Eric King, the deputy director of Privacy International, welcomed the ruling with these comments, at p. 2:

“If spying on human rights NGOs isn’t off limits for GCHQ, then what is? Clearly our spy agencies have lost their way. For too long they’ve been trusted with too much power, and too few rules for them to protect against abuse. How many more problems with GCHQ’s secret procedures have to be revealed for them to be brought under control?

Mass, suspicionless surveillance can never be justified. Secret internal safeguards were always a poor fix for a bigger problem, and today’s judgment shows that plain as day. If GCHQ cannot follow their own internal guidelines, why should they be trusted with some of the most intimate details of our lives?

Make no mistake, these internal failures will not be limited to just these instances. Trying to pass off such failings as ‘technical’, or significant changes in law as mere ‘clarifications’, has become a tiring defence for those who know the jig is up. The courts are helping to ensure that the sun is slowing setting on GCHQ’s Wild West ways. Now we need Parliament to step in to fix what should have been fixed a long time ago.”

In an article titled GCHQ’s surveillance of two human rights groups ruled illegal by tribunal contained in The Guardian edition of June 22, 2015, Owen Bowcott quoted Janet Love, the national director of the Legal Resources Centre, as stating that she was: “…deeply concerned to learn that communications of our organization have been subject to unlawful interception by GCHQ. As a public interest law firm, our communications are self-evidently confidential, and we consider this to be a serious breach of the rights of our organization and the individuals concerned. We can no longer accept the conduct of the intelligence services acting under a pernicious veil of secrecy, and we will be taking immediate action to try to establish more information.”

Mr. Bowcott also referred to the comments of James Welch, the legal director for Liberty, another one of the claimants, as saying: “Last year it was revealed that GCHQ were eavesdropping on sacrosanct lawyer-client conversations. Now we learn they’ve been spying on human rights groups. What kind of signal are British authorities sending to despotic regimes and those who risk their lives to challenge them all over the world? Who is being casual with human life now?” And Rachel Logan, the UK legal programme director for Amnesty International, also a complainant, was quoted as saying: “[This] raises the wider question as to why the UK intelligence services were intercepting the communications of these two highly regarded human rights NGOs at all. Knowing that your email has been read, or your calls have been listened to can stifle people into silence, leading to self-censorship. It is a clear interference with basic rights such as free expression and right to privacy.”

Mr. Bowcott went on to discuss the broader concern of civil liberties organizations that their private communications have been monitored under the GCHQ programme called Tempora which was disclosed by Edward Snowden. They also complain that information obtained by the US National Security Agency’s Prism and Upstream programmes may have been shared with British intelligence agencies in breach of British law.

The findings of the IPT in these claims are not insignificant. They may be added to the accumulation of revelations that GCHQ has operated in violation of its governing rules and procedures as well as Article 8 of the European Convention on Human Rights. Privacy International suggested that, at a time when there is an attempt to assess the level of accountability of British spy agencies, this case indicates that, “…the problems are worse than many feared, with the agency not even able to follow its own rules.”

The legal battle, then, between privacy activists and Britain’s spy agencies is far from over. As part of its campaign for surveillance reform, Privacy International has two other cases pending before the IPT. The first challenges GCHQ’s widespread hacking. This case is based on two complaints filed on behalf of Privacy International and seven worldwide internet service providers (https://www.privacyinternational.org/?q=node/468). The second objects to GCHQ’s bulk domestic spying program (https://www.privacyinternational.org/?q=node/594). I will comment on these rulings when they are released.

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