GCHQ Snooping Deemed Unlawful By Watchdog

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Surveillance watchdog rules GCHQ bulk data collection is unlawful, but says no evidence that agency misused the system

The surveillance capabilities of the UK’s top secret eavesdropping agency have suffered a setback after ruling by this country’s surveillance watchdog.

The Investigatory Powers Tribunal said that successive foreign secretaries had delegated powers that allowed GCHQ to access vast amounts of personal data from telecoms companies without oversight.

The watchdog found this was unlawful for more than a decade, in what could be a setback for the eavesdropping capabilities of the Cheltenham-based spy agency.

Breaking the law

For those that don’t know, the Investigatory Powers Tribunal (IPT) is the oversight body that handles complaints against UK intelligence agencies including MI5, MI6 and GCHQ.

Last October the data-sharing practices of government surveillance agencies was accused of breaking privacy law as they were not subject to sufficient oversight. This was the point made by Privacy International, which was pursuing a legal action against the government’s surveillance regime.

It told the IPT that the system of oversight established by the Regulation of Investigatory Powers (RIPA) Act in 2000 was a “blatant failure”.

And now it seems that the IPT “unanimously” agrees with Privacy International, about GCHQ’s bulk data collection practices.

“… that in relation to many directions made prior to October 2016 by the Foreign Secretary to Communications Service Providers to provide BCD to GCHQ, they were not in accordance with law,” the IPT stated.

However the IPT ruling, which is full of legal arguments, also found there was no evidence GCHQ had misused the system.

Flawed system?

Privacy International’s solicitor Millie Graham Wood told the BBC that the ruling was “proof positive” that the system set up to protect personal data was flawed.

“The foreign secretary was supposed to protect access to our data by personally authorising what is necessary and proportionate for telecommunications companies to provide to the agencies,” Graham Wood is quoted as saying.

“The way that these directions were drafted risked nullifying that safeguard by delegating that power to GCHQ – a violation that went undetected by the system of commissioners for years and was seemingly consented to by all of the telecommunications companies affected.”

Government response

“We welcome today’s judgement that the security and intelligence agencies’ powers are proportionate and comply with the European Convention on Human Rights,” a government spokesperson was quoted by the BBC as saying.

“The security and intelligence agencies are subject to a strict legal framework and robust independent oversight,” the spokesperson said. “We are proud of the work they do to keep the UK safe within these parameters.”

Privacy International continues to challenge the government surveillance practices as legitimised by RIPA (Regulation of Investigatory Powers Act in 2000) and last year’s Investigatory Powers (IP) Act as illegal.

A separate challenge brought before the European Court of Justice (ECJ) resulted in a ruling in December that only the “targeted retention of that data solely for the purpose of fighting serious crime” was permissible.

The IPT said in June last year that it was considering referring Privacy International’s case to the ECJ.

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Author: Tom Jowitt
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