UK's Secretive Court Says Intelligence Sharing Between NSA And GCHQ Was Unlawful In The Past -- But Now It Isn't
from the power-of-transparency dept
British intelligence services acted unlawfully in accessing millions of people's personal communications collected by the NSA, the Investigatory Powers Tribunal ruled today. The decision marks the first time that the Tribunal, the only UK court empowered to oversee GHCQ, MI5 and MI6, has ever ruled against the intelligence and security services in its 15 year history.As that explanation by Privacy International -- one of four claimants in this case -- mentions, the IPT found that sharing intelligence between the NSA and GCHQ was illegal, but now isn't. Here's why:
The Tribunal declared that intelligence sharing between the United States and the United Kingdom was unlawful prior to December 2014, because the rules governing the UK’s access to the NSA’s PRISM and UPSTREAM programmes were secret. It was only due to revelations made during the course of this case, which relied almost entirely on documents disclosed by NSA whistleblower Edward Snowden, that the intelligence sharing relationship became subject to public scrutiny.
In a previous December 2014 ruling, the IPT held that GCHQ's access to NSA data was lawful from that time onward because certain of the secret policies governing the US-UK intelligence relationship were made public during Privacy International's case against the security services. Yet that belated disclosure could not remedy the lack of transparency regarding the UK-US sharing prior to December 2014, meaning that all UK access to NSA intelligence material was unlawful before the Court’s judgement.Rather bizarrely, the complaint about GCHQ's illegal actions in the past has made subsequent actions legal, at least according to the IPT. Two of the claimants in the case now hope to build on this judgment by asking the IPT to confirm that communications were collected unlawfully before December 2014, and to demand their deletion. Parallel to that, they also intend to appeal against the ruling that since then, intelligence sharing between the NSA and GCHQ has been legal:
While we welcome today's decision, Privacy International and Bytes for All disagree with the tribunal's earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ's activities lawful as of December 2014. Both organisations will shortly lodge an application with the European Court of Human Rights challenging the tribunal's December 2014 decision.So the battle to bring GCHQ's massive surveillance program under control, with proper safeguards for the public and meaningful oversight, continues. But at least a first victory has been gained from an unexpectedly helpful IPT.
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+