Earlier Friday the Investigatory Powers Tribunal (IPT) in the UK ruled that the UK’s Government Communications Headquarters' (GCHQ) access to information intercepted online by the US National Security Agency (NSA) was unlawful up until December 2014. The Investigatory Powers Tribunal was established in October 2000 under the Regulation of Investigatory Powers Act 2000 (‘RIPA’) to enable UK citizens to reveal cases where they believed their human rights have been violated by illegal UK government surveillance. On foot of allegations by former NSA contractor Edward Snowden that GCHQ had agreements in place with the NSA which enabled GCHQ to have access to the data gathered and held by the NSA on UK citizens, a number of civil liberties groups such as Privacy International and Liberty brought a case to the IPT.
For the first time in its history the IPT found against the UK’s intelligence and security services and ruled that “The regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities … contravened Articles 8 or 10” of the European convention on human rights. Under the European convention on human rights, which all members of the European Union must adhere to, Article 8 is the Right to respect for private and family life, and states “Everyone has the right to respect for his private and family life, his home and his correspondence “ and that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of other”. While Article 10 refers to the right to Freedom of Expression and states that “Everyone has the right to respect for his private and family life, his home and his correspondence”
Today’s ruling follows an earlier ruling in December which found the overall program was lawful except for a lack of transparency. It was this lack of transparency over the intelligence sharing regime between GCHQ and the National Security Agency which the IPT ruled to be unlawful. The IPT notes that since its December findings the GCHQ has now addressed lack of transparency and is now compliant.
James Welch, the Legal Director for Liberty, said “We now know that, by keeping the public in the dark about their secret dealings with the National Security Agency, GCHQ acted unlawfully and violated our rights”. However, while many may view this as a victory against mass surveillance by government agencies it is important to remember that the IPT ruling has simply added more transparency onto the information sharing between the two agencies. Indeed, James Welch "The tribunal believes the limited safeguards revealed during last year's legal proceedings are an adequate protection of our privacy. We disagree, and will be taking our fight to the European Court of Human Rights."
So while not an empirical victory for privacy advocates, today’s ruling is a welcome reminder to those who say “Privacy is dead, get over it” that privacy is still alive and fighting.