Legal Issues

by Glyn Moody

Filed Under:
gchq, legal challenges, nsa, surveillance, uk

Legal Challenges To Spying Mount In UK

from the hitting-them-where-it-hurts dept

It's taken a while for Europeans to recover from the discovery that they are being spied upon by the NSA (with some help from its friends at GCHQ and elsewhere) pretty much everywhere online and all the time, but finally the legal fightback is beginning to gather pace, at least in the UK. Things got moving in October, with a case filed at the European Court of Human Rights:
The UK spy agency GCHQ is facing a legal challenge in the European courts over claims that its mass online surveillance programmes have breached the privacy of tens of millions of people across the UK and Europe.

Three campaign groups -- Big Brother Watch, the Open Rights Group and English PEN -- together with the German internet activist Constanze Kurz, have filed papers at the European court of human rights alleging that the collection of vast amounts of data, including the content of emails and social media messages, by Britain's spy agencies is illegal.
More recently, Amnesty International also brought a case against the UK government:
The human rights group Amnesty International has announced it is taking legal action against the UK government over concerns its communications have been illegally accessed by UK intelligence services.

In the latest of a series of legal challenges sparked by the revelations based on documents released by the whistleblower Edward Snowden, Amnesty said it was "highly likely" its emails and phone calls have been intercepted.
It has issued a claim at the Investigatory Powers Tribunal (IPT) arguing that the interception of its communications would be in breach of article 8 (right to privacy) and article 10 (right to freedom of expression) of the Human Rights Act.
The IPT reviews complaints about the UK's secret services, but is largely toothless. The same is true of the European Court of Human Rights: a win there would be welcome, but largely symbolic, since the UK government would probably ignore it as it has other such judgments from this court. That's what makes the third legal challenge different:
A British citizen's UK court action will test the legal right of Microsoft to disclose private data on UK citizens to the US electronic spying organisation, the National Security Agency (NSA).

The case will shine a light on the legality of top secret US court orders which require US technology companies to disclose details of foreign users' private communications.

Kevin Cahill, a British journalist, has brought the case in the Lord Mayor's and City of London County Court. The case centres on Cahill's belief that Microsoft breached the security of his email account.

Cahill argues that, by obeying orders that are legally binding only in the United States, Microsoft has contravened British law -- the Data Protection Act in particular.
The Computer Weekly report quoted above explains that the legal action is against three of the companies involved in the NSA spying: Microsoft, Google and Facebook. Cahill wants the court to compel them to reveal the orders made under the US Foreign Intelligence Surveillance Act (FISA), and to pay him damages of around $1600 (each, presumably.)

As the UK human rights lawyer Geoffrey Robertson is quoted as saying, if successful, this case could have far-reaching consequences not just for Microsoft, Google and Facebook, but for any US company that aids the NSA in this way:

"Microsoft allegedly betrayed its customers by providing their personal information, without their consent, to the NSA," said Robertson.

"This would constitute a serious breach of the British Data Protection Act, by an American company putting its allegiance to America above its legal duties to its British customers."
Naturally, that would place the US companies concerned in a difficult position: forced by US law to disclose information to the NSA, but liable to pay compensation to millions of aggrieved UK citizens for contravening the country's Data Protection Act. And that's why the case is so important: once companies start getting hit with fines in the UK, and perhaps elsewhere in Europe too, they might start pressing the US government even harder to rein in the NSA's activities.

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  1. icon
    btrussell (profile), 12 Dec 2013 @ 12:09pm

    "...once companies start getting hit with fines in the UK, and perhaps elsewhere in Europe too, they might start pressing the US government even harder to rein in the NSA's activities."

    They will need to increase the budget for the NSA to pay these fines so that the companies will continue to co-operate.

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