Rights groups openly challenge GCHQ

Rights groups openly challenge GCHQ in court

by KATIE COLLINS

In a rare public hearing of theInvestigatory Powers Tribunal, lawyers for Privacy International, Bytes 4 All, Liberty, Amnesty International and many other rights groups have challenged the government over the bulk collection of data for the first time ever in a UK court.

The NGOs and rights organisations have brought the case before the tribunal to challenge GCHQ's failure to provide a publicly accessible legal framework for intelligence-sharing operations in the US; in addition, the interception and storage of mass amounts of data carried by undersea fibre-optic cables through the Tempora programme.

The hearing today was primarily determining what would be argued when the case is played out in July, as well as what will and won't be able to be discussed in open courts.

The Tribunal will examine the actions of GCHQ to determine whether if the Tempora mass data surveillance operation exists, it operates within the law. The government will have to prove that the programme falls within the legal parameters of the Regulation of Investigatory Powers Act 2000, commonly referred to as RIPA.

The European Court of Human Rights has also orderedgovernment ministers to answer for GCHQ's actions, but the court will purely examine whether the Tempora programme exists and if it does, whether it violates fundamental human rights, as laid out in article 8 of the European Human Rights Convention. The Investigatory Powers Tribunal will examine the actions much more closely in the context of specific allegations -- specifically whether GCHQ's collection of bulk data in the UK breaches RIPA.

One of the disputes on which the case rests is that the government claims there is no difference between metadata and communications data. RIPA allows for the interception of some communications data, but if metadata does mean something different to communications data -- and many experts believe it does -- it means GCHQ's collection of any other types of data other than communications data may fall outside the legal parameters set out by RIPA. The terminology issue here is one of several that the legal representatives and Tribunal will have to agree upon before the case goes to court.

Another such issue is that while the Prism programme has been officially acknowledged, the UK government will not acknowledge the existence of the operation named Tempora, as detailed in the documents released by Edward Snowden. Mr Justice Burton suggested that it might be wise to define the operation in other terms, so that it could be discussed as a factual hypothetical, rather than deal with the inevitable roadblocks that will consistently be encountered if it is called by its code name. Tempora, he said, could be referred to as the "fibre-optic interception programme" for presentational purposes.

The legal representative for Amnesty International agreed that it might be best to change the way the programme is referred to, but said it was important the public were made aware of this. This would be to ease the legal process. 

In a statement following the hearing, a spokesperson for Privacy International told Wired.co.uk:

"While the IPT has a history of siding with Government, today the Tribunal expressed well-founded scepticism of several of the government's positions, which were built upon continued refusals to acknowledge the existence of the Tempora programme, despite the reams of material to the contrary that are now in the public domain.

"The Government's continuing insistence on neither confirming nor denying Tempora borders on the absurd and blocks us from having a full and robust debate about whether such mass surveillance is lawful."

There was also some jovial discussion in the hearing over the pronunciation of Tempora and whether the emphasis should be on the "Tem" or the "por". When called on to advise as to whether they were pronouncing the code name correctly, government counsel could neither confirm nor deny.

The right to neither confirm nor deny is a policy that means authorities are exempt from being obliged to provide a direct response in open court in order to protect sensitive information. It is likely GCHQ will use the neither confirm nor deny policy as a reason in persuading the Tribunal to have a closed hearing. Rights groups argue that the neither confirm nor deny policy is not a good reason to hold a closed hearing, because the "sensitive information" in this case -- referring of course to the existence and nature of Tempora -- has already been acknowledged in materials that have been widely circulated in the public domain.

"Given the great public interest in these matters, we hope the Tribunal will ultimately take a stand against the Government and consider our claims in open, rejecting the government's attempts to unilaterally maintain unjustified secrecy around activities that seriously imperil the human rights of individuals around the world," said a Privacy spokesperson.

The Tribunal has the responsibility of making sure the intelligence and security services operate within the law, and individuals who believe their rights may have been violated can bring their complaints before it. It is thought that the court has only ever on a couple of occasions found a case not in the agencies' favour and the Tribunal is under no obligation to explain or justify its rulings.

The organisations pursuing the case pushed to have this hearing in the open due to the significant public interest in the case. When it comes to the case itself, it's likely the court will hear all the open arguments first, then have a short closed session at the end of the open hearing in which will it will examine the sensitive information, before making a judgment.

"While today our arguments were heard in the open, the Tribunal indicated that it will likely hold secret hearings in this matter. If that happens, this process may serve only to further hide the truth of the Government's actions," said Privacy.

Mr Justice Burton said that the open hearing will be used to establish whether access and use of data is legal; then in a closed hearing, he said, they will examine whether GCHQ has accessed and used data in legally or not. Burton said that he wants to clarify in open court exactly what actions can be legally taken.

"We need to know using verbs -- intercepting, accessing, storing," he said. It is a "minimalist set of premises", he acknowledged, but they also need to determine whether these actions "are lawful, or whether they are lawful if proportionate".

The trial will begin in July.

http://www.wired.co.uk/news/archive/2014-02/14/ipt-public-hearing-gchq-tempora