Safeguards surrounding GCHQ‘s collection of vast quantities of online data are inadequate and do not conform to the law, a tribunal hearing complaints about mass surveillance has been told.
The groundbreaking case against the monitoring agency and the government at the investigatory powers tribunal (IPT) is the result of revelations by the US whistleblower Edward Snowden.
It has been brought by Privacy International, Liberty, Amnesty International, the American Civil Liberties Union and a number of other overseas human rights groups.
Matthew Ryder QC, for Liberty and other human rights groups, told the tribunal: “Our challenge is against the legal framework which we say is inadequate and not in accordance with the law.
“Tempora is a UK alleged government programme [which] involves the collection of vast amounts of information flowing through fibre-optic cables … It may be that [the government has] crossed a Rubicon and decided that [mass] data-gathering exercises are something [it] should try out – but you can’t have it under the existing regime.”
A written submission to the tribunal from Privacy International asks whether it is right “that the government can issue a general warrant for the universal search, seizure and sophisticated automatic analysis of communications and their sharing with foreign governments.
“[The case] is also about the government’s ability to obtain virtually all communications of UK residents from the intelligence services of other states without requiring any warrant at all and subject only to a general power to act ‘in the interests of national security’.”
The legal challenge is the first of dozens of GCHQ-related claims to be examined in detail by the IPT, which hears complaints against British intelligence agencies and government bodies that carry out surveillance under the Regulation of Investigatory Powers Act (Ripa).
The civil liberties organisations are concerned that their private communications have been monitored under GCHQ’s electronic surveillance programme Tempora, whose existence was revealed by Snowden. They also complain that information obtained through the NSA’s Prism and upstream programmes may have been shared with the British intelligence services, sidestepping protections provided by the UK legal system.
The chairman of the tribunal, Mr Justice Burton, asked lawyers for the government whether intelligence-sharing with the United States – where information was intercepted overseas by foreign agencies – complied with the right to privacy and family life under article 8 of the European convention on human rights.
James Eadie QC, for the government, said he believed the process was compliant with the convention but sought time for further clarification.
Burton said the IPT was unusual in hearing evidence on the basis of assumed facts. “The whole shooting match is being assumed for the purpose of today,” he added.
Written submissions for the government accept that under the “alleged” Tempora operation, “the claimants’ [the civil liberty organisations’] communications might in principle have been intercepted in the UK … and at least some of those intercepted communications might in principle have been read, looked at or listened [to].”
There are four other members of the tribunal, along with Burton: Robert Seabrook QC, Christopher Gardner QC, chief justice of the British Indian Ocean Territory, Geoffrey Rivlin QC and Mrs Justice Carr, a high court judge.