Sharing mass surveillance data was illegal but is now OK, UK tribunal rules

British intelligence agency GCHQ is pleased that the UK's bulk interception regime is now lawful

The sharing of mass surveillance data between U.S. and U.K. intelligence services was unlawful before December 2014, but since then it has become legal, a U.K. tribunal has ruled.

British intelligence agency GCHQ has had unlawful access to information gathered by the U.S. National Security Agency (NSA) prior to December, in breach of human rights laws, the U.K.'s Investigatory Powers Tribunal (IPT) ruled Friday.

"The regime governing the soliciting, receiving, storing and transmitting by U.K. authorities of private communications of individuals located in the U.K., which have been obtained by U.S. ... contravened Articles 8 or 10," of the European Convention on Human Rights (ECHR) the judgement said. Article 8 covers the right to private life while Article 10 covers freedom of expression.

However, while exchanging data was in breach of the convention before December 2014, it is now compliant and no longer violates human rights because the government made public the secret policies governing the data exchange, the tribunal found.

Friday's ruling follows an earlier judgement of the tribunal in December 2014, in which it found that Internet mass surveillance programs are lawful and do not violate human rights. In that ruling, the tribunal held that British intelligence access to NSA data was lawful from that time on because secret policies were made public during that case.

Although the ruling found that GCHQ acted illegally before December 2014, the agency welcomed the ruling. "We are pleased that the Court has once again ruled that the U.K.'s bulk interception regime is fully lawful. It follows the Court's clear rejection of accusations of 'mass surveillance' in their December judgment," GCHQ said in an emailed statement.

The intelligence agency dismissed the importance of Friday's judgement as it focused primarily on the "discrete and purely historical issue" of whether legal frameworks were also fully compatible at a point before these legal proceedings began, it said.

"The judgment does not in any way suggest that important safeguards protecting privacy were not in place at all relevant times. It does not require GCHQ to change what it does to protect national security in any way," it said.

"By its nature, much of GCHQ's work must remain secret. But we are working with the rest of Government to improve public understanding about what we do and the strong legal and policy framework that underpins all our work. We continue to do what we can to place information safely into the public domain that can help to achieve this," it added.

While the ruling was welcomed by Privacy International and Bytes for all, two of the claimants, they said they disagreed however with the tribunal's earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ's activities lawful, they said in a news release.

"For far too long, intelligence agencies like GCHQ and NSA have acted like they are above the law. Today's decision confirms to the public what many have said all along -- over the past decade, GCHQ and the NSA have been engaged in an illegal mass surveillance sharing program that has affected millions of people around the world," said Eric King , deputy director of Privacy International, who added that agencies should not be allowed to continue justifying mass surveillance programs using secret interpretations of secret laws.

More work needs to be done though, he said. A last-minute clean-up effort by the U.K. government "is plainly not enough to fix what remains a massive loophole in the law, and we hope that the European Court decides to rule in favor of privacy rather than unchecked State power."

Both Privacy International and Bytes for All will now ask the court to confirm whether their communications were unlawfully collected prior to December 2014 and, if so, they will demand their immediate deletion. Both parties will also file a suit with the European Court of Human Rights challenging the tribunal's December 2014 decision.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, online payment issues as well as EU technology policy and regulation for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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Tags governmentprivacylegislationlegalCivil lawsuitsU.S. National Security AgencyU.K. Government Communications Headquarters (GCHQ)

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