Legal Analysis Requested By Members Of Parliament Says GCHQ Surveillance Is Illegal Too

from the well,-look-at-that... dept

We’ve seen a few times now how legal analysis suggests that the NSA’s surveillance activities are clearly illegal. However, over in the UK, the government has appeared to be even more protective of the surveillance by GCHQ, and even more insistent that the activities have been legal. While there’s a thriving debate going on in the US, many UK officials seem to have pushed back on even the possibility of a similar debate — and there has been little suggestion of reform. While it’s still unclear how much reform there will be of the NSA, the UK government hasn’t indicated even an openness to the idea.

But now, similar to the recent PCLOB report in the US, a legal analysis of the GCHQ, written at the request of a bunch of Members of Parliament, has argued that much of what GCHQ is doing is illegal under UK law:

In a 32-page opinion, the leading public law barrister Jemima Stratford QC raises a series of concerns about the legality and proportionality of GCHQ’s work, and the lack of safeguards for protecting privacy.

It makes clear the Regulation of Investigatory Powers Act 2000 (Ripa), the British law used to sanction much of GCHQ’s activity, has been left behind by advances in technology. The advice warns:

  • Ripa does not allow mass interception of contents of communications between two people in the UK, even if messages are routed via a transatlantic cable.
  • The interception of bulk metadata – such as phone numbers and email addresses – is a “disproportionate interference” with Article 8 of the ECHR.
  • The current framework for the retention, use and destruction of metadata is inadequate and likely to be unlawful.
  • If the government knows it is transferring data that may be used for drone strikes against non-combatants in countries such as Yemen and Pakistan, that is probably unlawful.
  • The power given to ministers to sanction GCHQ’s interception of messages abroad “is very probably unlawful”.

There’s a lot more in the report, described at that Guardian link above, which is well worth reading. It makes you wonder how much longer the UK government can pretend that everything is perfectly fine with the GCHQ’s activities.

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Comments on “Legal Analysis Requested By Members Of Parliament Says GCHQ Surveillance Is Illegal Too”

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Rikuo (profile) says:

Re: Re: Re: Re:

I respond with this
“The Protestant “heir of the body” of Sophia, Electress of Hanover succeeds to the Throne.”
I grant you though, that the term Protestant doesn’t have to automatically = Church of England, just a member of a Christian denomination that isn’t Catholic or Eastern Orthodox. However, the Supreme Governor of the Church of England can only ever be the monarch (although again, this doesn’t then automatically mean that the monarch must be Anglican, only that the supreme governor must be the monarch).

So yes, I’ll have to say we were both right. Upon reading that wiki, it does say a lot about not marrying or being Roman Catholic, but at the same time, it would be practically impossible (due to politics and tradition) for someone who is not Anglican to be the UK’s monarch (imagine if a member of the royal family who was a Baptist, Methodist or Pentecostal were to seriously try to succeed to the throne.

DannyB (profile) says:

Re: Re:

They’ll ignore it regardless of whether there is a reaction from the citizenry.

What I think both the US and UK are doing is to first request an analysis of their surveillance which then firmly establishes that it is illegal. Once it is clearly illegal, the government doubles down on it codifying the current (or worse) practices into law.

Then watch the citizenry for a reaction. Any reaction is clearly the work of terrorists. And pirates.

Anonymous Coward says:

from what i read, there has been a ‘fast track’ so a legal challenge can be performed against the UK government over this very issue. bear in mind that, although a different subject, the UK has just introduced a new law, nicknamed the ‘gagging law’ which limits the donations given, for example, to parties in election years.
not just in the USA but in the UK as well, to name but two, democracy is gradually being eroded and replaced with a mixture that suits the government that is in power at the moment, but will inevitably affect future governments as well. it needs to be stopped. governments are put in power by the people. if the elections are rigged, as in some 3rd world countries for example, we will end up in real trouble. what all governments should remember is that they are there to serve the people, not the people serve them. there has been major unrest in the world for a couple of years now, all caused by governments that ignore what the people want, whilst doing everything possible that business wants. Egypt and Syria are good examples. this is spreading and has done so in the Ukraine atm. all other countries need to be aware that they could easily be next and that the laws they are implementing to stop crowds gathering, mass protests etc will not work. eventually, the people will have their way or there will be no way at all!!

Private Fraser says:

a reason for voting YES to scottish independence

is that we might get a constitution (imagine!) that might be able to stop this sort of thing. Theresa May has already said that she won’t share security info with an independent scotland so there is hope that we could have a government that does not spy that much on us.

ssgbs8 says:

Curious about one detail

The title of this blog reflects what I originally assumed when I read the Guardian article last night, but as I read on, I became curious. Was this report actually commissioned by MPs?

Or was it commissioned by e.g. the Guardian and, to quote the Guardian:

has been “given to MPs”

has “been provided to MPs”

“has been sent to the 46 members of the all-party parliamentary group on drones”

and will be provided (by Tom Watson MP who has reason to be sympathetic to the Guardian) to the parliamentary intelligence and security committee.

I am hopeful that this is a report officially requested by MPs for MPs but I can’t see where the Guardian article actually says that. If not, I think the article might be written to be deliberately ambiguous on that detail.

Anonymous Coward says:

Re: Re:

Pff. Illegal under EU law is too common to be bothersome. Sure, EU may sue and something may have to be done about it in 10 years, but 10 years is quite a while. It is far worse that they have been sued in the ECHR (not part of EU). ECHR is a lot more damaging to leave than EU given the popular backlash you can expect from blatantly trampling human rights!

Just Sayin' says:

It's an opinion, not a fact

It’s a legal opinion, not a confirmed fact. That is to say that without an actual case in a court of law, the opinion is just that, one side of an argument and not both.

Moreover, let’s consider reality here (Techdirt style, natch).

Technology allows for this type of interception. By default, all phone call meta data is recorded, especially when you talk about wireless phones. The wireless companies pretty much need the information to bill usage and for planning of their business (new cell sites, amount of data used, etc). Technology allows this, in the same manner that technology allows you to copy a DVD or to rootkit your phone.

Now, the only thing that would stop the authorities is that “it’s illegal”. Yet, that same moral imperative doesn’t seem to come into play when talking about hacking, piracy, unauthorized use of IP, and so on.

Technology allows for wholesale spying. The internet isn’t a series of private rooms, it’s a huge stadium filled with people passing notes to each other, and using people in the middle to pass the notes for them. That the government spy agencies have figured out to get most of the note passers to also send them a copy shouldn’t come as a surprise to anyone. The methods used permit it.

It’s a truly importanht thing that you must consider here. Technology allows it. The internet is designed that way. Everything you do (or almost) has a third (and fourth, and often more) party involved. From using gmail to hosting a website, someone else is always in the game. You are always passing the note to someone who passes it on for you.

One of the underlying themes of techdirt is piracy is unavoidable because technology allows it. Then you get upset when the government uses what technology allows. Why?

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