Human rights and the interception of communications

06/01/2015

Liberty (The National Council of Civil Liberties) and others v Government Communications Headquarters and others [2014] UKIPTrib 13_77-H, [2014] All ER (D) 156 (Dec)

In December 2014, the Investigatory Powers Tribunal (IPT) ruled that the current interception systems used by UK security services do not breach human rights.

How did this case come about?

The case was brought in the wake of the Snowden revelations, which caused public concern that the US and UK governments were routinely intercepting, collecting and sharing large volumes of communications content and data, including from their own and each other’s citizens. It was perceived at the time, and argued by the claimants, that the collection was indiscriminate. The thrust of the claimant’s case was that this interception, collection and sharing was–whether or not the collection was indiscriminate, but particularly if so–unlawful. The arguments as to lawfulness focused upon the requirement in ECHR, art 8(2) that there shall be no interference by a public authority (in this case ‘the security services’–MI5, MI6 and GCHQ) with the right to respect for an individual’s private life, including his correspondence, except as is in accordance with the law.

The primary question was therefore: Were there adequate systems of legal safeguards in the area of covert interception of communications to make the security services’ reliance upon ECHR, art 8(2) meaningful, and therefore valid? An analogous case in relation to ECHR, art 10(2) was also put and considered by the tribunal. The secondary question is: If there are such adequate safeguards, are they being properly implemented in fact?

The IPT answered the primary question in the affirmative, and concluded that there was, at least in respect of the systems governing the two aspects of communication interception examined by it, no contravention of ECHR, arts 8 or 10. A further case of indirect discrimination contrary to ECHR, art 14 was also put and dismissed. As to the secondary question, that will now be looked into by the IPT almost entirely in secret.

What is the significance of the ruling?

This case represents the legal responses of several of the most prominent relevant pressure groups and NGOs to the central Snowden revelation–namely that the UK and US governments run very substantial programmes of communication interception and may share the material so derived. The claimants made sustained and very critical submissions which for the most part were entertained and given serious and detailed consideration by the IPT.
The IPT itself, through its function and procedures and its independence, provides an important plank in the raft of statutory, regulatory and other provisions that together make up the system by which covert surveillance by the government is to be held in check, so this ruling constitutes an important element in the legitimisation of the interception programmes it considered.

The IPT is able to receive evidence and submissions on both an open and a closed basis. It has done so in this case, looking at the legislative and regulatory framework as it is available to the public, as well as examining in closed sessions those secret arrangements said to be ‘below the waterline’. Following that exercise, the IPT ruled that the intercept programmes are lawful and ‘human rights compliant’. In the course of reaching that conclusion, the IPT satisfied itself that–contrary to the received impression in some quarters following Snowden that the intelligence services are permitted to obtain communications and associated data by interception at will–this is not the case.

What grounds did the IPT give for holding that the interception systems did not breach human rights?

The case examined the legal framework governing two aspects of the collection and handling of communications content and data by the UK government and security services:

Prism
Material obtained by the US National Security Agency (NSA) pursuant to its Prism programme (and also possibly pursuant to another programme called Upstream) which was then shared with UK security services.

Regulation of Investigatory Powers Act 2000, s 8(4) (RIPA 2000)
The operation by the UK security services of warrants under RIPA 2000, s 8(4) (RIPA 2000). Section 8(4) provides that UK agencies may themselves intercept ‘external communications’, which is to say communications sent or received outside the British Islands, but crucially also along with internal communications, provided only that the interception of internal communications is necessary in order to enable the warrant to intercept the external communications. The claimant’s concern in relation to RIPA 2000, art 8(4) was that the security services were vacuuming up the communications of UK citizens, and that the proviso in RIPA 2000, s 8(4) was insufficient protection, allowing internal as well as external communications to be intercepted and read.

Broadly speaking, the IPT’s reasoning in respect of both issues was that there were adequate safeguards in place to ensure compliance with the law, and that those safeguards were sufficiently foreseeable by and available to the public. After considering the secret arrangements (those ‘below the waterline’) the IPT was satisfied that they, along with the duties already conferred on the security services by their own governing legislation, the Data Protection Act 1988, the Human Rights Act 1998 and RIPA 2000, were sufficient to ensure compliance with ECHR, arts 8 and 10.

Those ‘below the waterline’ arrangements are sufficiently accessible to the public because–although themselves secret–they are sufficiently signposted by the statutory framework in which they sit. Furthermore, those arrangements that are below the waterline (as well as those above it) are subject to oversight, by the Interception of Communications Commissioner who is a former Lord Justice of Appeal, the Parliamentary Intelligence and Security Committee currently chaired by a former Foreign Secretary, and the IPT itself.

Has the case given any indication as to the limits of surveillance that would be allowed before they were found to breach human rights?

Yes. The IPT took the opportunity to set out some clear conclusions on this issue (at para [160]). In summary, it would always be unlawful for the security services to deliberately circumvent the requirements of UK law by looking to another state to effectively do its information gathering for it. Indiscriminate trawling for information by interception would also be unlawful. Intercepted material may only be retained for as long as is necessary for the lawful purpose for which it was obtained, and the security services are accountable for all intercepted information which they receive and retain by any means.

Throughout its judgment the IPT reiterated the principles of sufficiency of accessibility and foreseeability as minimum safeguards in relation to the regulatory apparatus bearing upon the state’s discretion where interception is concerned.

What has the general surveillance debate told us about the interaction between human rights and the actions of the state?

The broader human rights law impact of this case is not clear. The judgment is careful to operate within the bounds of well-established European Court of Human Rights (ECtHR) jurisprudence and does not purport to create any new law. What is more, because of the security services’ policy (unchallenged in this case) of ‘neither confirm nor deny’, there were no findings of fact–the parties and the tribunal proceeded upon certain agreed putative factual scenarios, with the respondents neither confirming nor denying that they in fact pertained.

What is potentially of interest is that, from the internal guidance and procedure posited or disclosed, it appears that even in the operation of their secret arrangements the security services are aware of–and try to reflect in those arrangements–the need to try and strike a proportionate balance between on the one hand the state’s duty to protect its citizens from terrorism and/or other serious crime, and on the other the private rights of citizens to privacy and freedom of expression. It was this attempt to build in these human rights principles to the security services’ ‘below the line’ policies that enabled the IPT to declare as lawful the arrangements to which it has been privy. It remains to be seen whether the security services have in fact managed to uphold those lawful policies in practice–this is what the IPT will now consider.

Is this the final word on the matter?

No. The claimants have said they will appeal the judgment to the ECtHR. Responding to the ruling James Welch, legal director for Liberty, said:
‘So a secretive court thinks that secret safeguards shown to it in secret are an adequate protection of our privacy. The IPT cannot grasp why so many of us are deeply troubled about GCHQ’s [RIPA 2000, s 8(4)] operation: a seemingly unfettered power to rifle through our on-line communications.’

It should also be noted that there are a number of instances in the judgment where either the judge has suggested or the security services themselves have expressed a willingness to consider that some or more of the arrangements currently operating below the waterline be made public. Doing so may conceivably lead to more challenges to the decisions those arrangements are intended to regulate.

Finally there is currently before the IPT a case arising out of a private civil law action, Belhaj and another v Straw MP and others (United Nations Special Rapporteur on Torture and others intervening) [2014] EWCA Civ 1394, [2014] All ER (D) 337 (Oct) in which it came to light that the security services may have been intercepting communications between the parties and their lawyers, which communications were otherwise covered by legal professional privilege (LPP).

The LPP issue was raised in the case under discussion by Amnesty, but given its centrality to the Belhaj case, the issue was hived off and will be determined in due course. The security services have disclosed on an open basis in the Belhaj litigation before the IPT–which is still at a preliminary stage–redacted and gisted versions of their internal policies which arguably go beyond what was openly available to the claimants in this case. So it seems that there is a creeping move towards greater openness as far as the hitherto secret arrangements are concerned.

Jonathan Price was interviewed by Alex Heshmaty.

This article was first published on Lexis®PSL Public Law on 6 January 2015.

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