After spying illegally for 17 years UK intelligence seeks new powers

The U.K. Investigatory Powers Tribunal ruled that the U.K.'s secret bulk collection by the GCHQ between 1998 and near the end of 2015 violated Article 8 of the European Convention on Human Rights and was never approved as legal by the U.K. parliament.

The GCHQ is the Government Communications Headquarters. The program was first revealed by Edward Snowden. Key points in the Tribunal findings can be found here. The program, or rather programs, allowed the U.K. surveillance agency, the GCHQ, to build up a detailed database of communications with little to no oversight. The bulk collection included a whole year's worth of call data and location records from every cell phone in the U.K. The collection had been kept secret from the public and beyond the reach of the courts. If it were not for the revelations of Edward Snowden the data collection probably would never have been revealed. Snowden is in Russia at present. If he returns to the U.S. he would no doubt face criminal charges. Although some have urged that Snowden be pardoned this seems highly unlikely.

In November last year, the GCHQ program was changed so as to make it legal and to reveal more about the underlying policies. However, the underlying operations continue. No one appears to have been held accountable for the illegality of the earlier operations. The official response of the government to the Tribunal ruling manages to ignore all the damaging aspects of the report:The official public response from the government didn’t touch on the 17 years of unlawful practice, but merely declared it was “pleased the tribunal has confirmed the current lawfulness of the existing bulk communications data and bulk personal dataset regimes”. While underplaying the significance of this ruling, the government is ebullient about how Theresa May’s investigatory powers bill – more commonly known as the snooper’s charter – will usher in a new era of transparency, honesty and rigorous oversight.

The government also appears to have supplemented its former " neither confirm nor deny" policy when questioned about surveillance programs by a policy of never apologizing about the programs and explaining as little as possible when they are revealed.

As noted, the U.K. parliament is now faced with the Investigatory Powers Bill which although it has some minor improvements such as error reporting it has no provisions for notifying people if their data is being used and thus perhaps misused. There is no right to seek redress for misuse either. The new bill in effect "enshrines in law the powers of bulk surveillance that led to the collection of our data."

64 Labour members of the House of Lords supported the Conservative bill to expand state surveillance powers. The peers explained that they were protecting an amendment to the bill which the House of Lords passed that web-browsing activities should not be given to police except for offences that carry a penalty of less than 12 months rather than six as in the original bill.

An attempt by Liberal Democrats to delete powers to order the collection and storage of new internet connection records was defeated by a vote of 75 for to 292 against. The actions of the Labour peers contrasted with that of the Labour shadow home secretary Diane Abbott who said that the bill was "draconian" and that the Tribunal report showed why the bill needed to be amended: “The latest ruling from the investigatory powers tribunal should be a sharp reminder that we should not lightly hand over powers to the security services and police and that greater accountability is needed. The government’s bill needs amending in all these areas.” Her reaction shows that Labour may be changing its stance as it had merely abstained on second reading of the bill.

Another article on the Tribunal report claims that M15, the U.K. domestic counter-intelligence and security agency, was involved in the spying as well. The article notes that the intelligence community had several opportunities to notify parliament of its activities but failed to do so.

Privacy International, a U.K.-based advocacy group, maintains that the new U.K. bill still has inadequate safeguards including notifying victims of any misuse of the data collection. The group called the Tribunal report "one of the most significant indictments of the secret use of the Government's mass surveillance powers since Edward Snowden first began exposing the extent of U.S. and U.K. spying in 2013." Millie Graham Wood, Legal Officer at Privacy International said:"There are huge risks associated with the use of bulk communications data. It facilitates the almost instantaneous cataloguing of entire populations' personal data. It is unacceptable that it is only through litigation by a charity that we have learnt the extent of these powers and how they are used. The public and Parliament deserve an explanation as to why everyone's data was collected for over a decade without oversight in place and confirmation that unlawfully obtained personal data will be destroyed."Yet there is no apology or even mention of the misdeeds in the U.K. Home Office statement about the report:The powers available to the security and intelligence agencies play a vital role in protecting the U.K. and its citizens. We are therefore pleased the tribunal has confirmed the current lawfulness of the existing bulk communications data and bulk personal dataset regimes."

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