2014: Rights’ Victory over Surveillance – The story of the victory over the Government Communications Headquarters (GCHQ) of the United Kingdom (UK)

– By Muhammad Arsalan Ashraf, Research Associate, Bytes for All, Pakistan –

The right to privacy is a fundamental human right, and is central to the maintenance of democratic societies. Significant to human dignity, the right to privacy reinforces Freedom of Expression (FoE), right to information, and Freedom of Assembly and Association (FoAA). This right is explicitly recognised under the international human rights regime; for example Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

From the perspective of human rights and justice, these thoughts serve as the absolute foundation of privacy practice and policy. In reality, this is not the case. Powerful Governments that project their countries as global benchmarks of human rights, justice and equality are often found in gross violation of their own principles and ideals, let alone international standards.

Digital surveillance enables state and non-state actors to infringe on the privacy of individuals, organisations and Governments, which affects other fundamental rights; such as when the surveillance of human rights defenders (HRDs) or journalists leads to self-censorship, which is the worst form of censorship. Surveillance may only be justified when it is prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued.[1]

Background

The Government Communications Headquarters (GCHQ) is a British intelligence and security organisation responsible for providing signals intelligence (SIGINT) and information assurance to the British Government and armed forces. Based in ‘The Doughnut’, in the suburbs of Cheltenham, it operates under the formal direction of the Joint Intelligence Committee (JIC) alongside the Security Service (MI5), the Secret Intelligence Service (MI6) and Defence Intelligence (DI).

After the National Security Agency (NSA) – of the USA – scandal broke in early June 2013 and the Guardian newspaper reported that the NSA was collecting the telephone records of tens of millions of Americans, the UK-based charity Privacy International (PI) studied the operations of GCHQ closely and found that the UK intelligence service had infected millions of devices to spy on citizens and gather personal data.

To be able to address these violations and demand an explanation from the Government, it is not possible to just file a complaint, like with a regular court. It is necessary to apply to a secretive judicial body called the Investigatory Powers Tribunal (IPT). The IPT has exclusive jurisdiction over the mass surveillance programmes of the Government and other public bodies, making it the only judicial body with the power to investigate the conduct of MI5, MI6 and the GCHQ. The IPT will only rule whether a surveillance is lawful. There is no avenue to appeal, other than to take a case to the European Court of Human Rights.

Actions

A 30-page legal complaint[2] was filed with the IPT by PI along with other groups including Bytes for All (B4A), Pakistan, American Civil Liberties Union, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights (EIPR), the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, and the Legal Resources Centre in South Africa.

The PI-led alliance took the stance that the Snowden[3] leaks contained ample evidence about GCHQ spying on people in clear violation of the European Convention on Human Rights.[4] The convention’s Article 8 guarantees the right to privacy and Article 10 the right to FoE, freedom to hold opinion and to receive and impart information and ideas without interference by public authorities, and regardless of frontiers.

Bytes for All Role

B4A is a human rights organisation and a research think tank with a focus on Information and Communication Technologies (ICTs). B4A played an active role in facilitating PI in this case and joined the global advocacy campaign
for the safeguard of rights. The objective was to hold the United Kingdom (UK) Government accountable for spying on Pakistani data generated by the Government of Pakistan, companies and individuals. The momentum gained through the joint initiatives of PI and B4A was further intensified by Amnesty International and the National Council of Civil Liberties (Liberty)[5] when they agreed to become complainants in this case.

Ruling paves the way to the European Court of Human Rights

In February 2015[6], the IPT ruled that GCHQ acted unlawfully in accessing millions of private communications collected by the NSA up until December 2014. It marked the first time that the Tribunal ever ruled against the intelligence and security services in its 15 year history.

GCHQ’s mass surveillance systems violated the fundamental rights of non-governmental organisations (NGOs) in two separate ways, according to the IPT. In the first instance, EIPR’s communications were intercepted, accessed and then unlawfully retained for materially longer than permitted. In the second, LRC’s communications were intercepted, and then unlawfully selected for examination in contravention of GCHQ’s secret procedures that were not followed in this case. Over the past decade, GCHQ and the NSA have been engaged in an illegal mass surveillance sharing programme that has affected millions of people around the world.

In April 2015, PI and several other human rights organisations sued the UK Government in the European Court of Human Rights for employing mass surveillance methods for illegal spying on individuals within its borders and around the world. This petition filed by PI, B4A, Amnesty International, Liberty, and other partners was in response to the ruling by the IPT.

The case has already been appealed in the European Court of Human Rights on the points of law that we felt were unjust. Courts can take a while, so it is likely that no hearing and final judgment will be made until 2016.

Many aspects of the decision of the IPT remain unclear. Due to concerns about national security, more details about why it was deemed necessary and proportionate to spy on the civil liberties organisations were not made public. Likewise, further details surrounding the errors made by GCHQ, including what caused them or whether they have been fixed, remain a secret.

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Muhammad Arsalan Ashraf is working as Research Associate in Bytes for All, Pakistan. He works on various projects including digital safety and security. His twitter is @arsalanashraff.

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