Daily Archives: February 8, 2015

A U.K. court has for the first time ruled that intelligence sharing activities between the NSA and the equivalent government intelligence agencyin the U.K., GCHQ, wereunlawfulin the past on the grounds that theybreached European human rights law.

The court case was heard bythe U.K.s Investigatory Powers Tribunal (IPT), the judicial oversight body which handles complaints relating to domestic intelligence agencies. The complainants werefour pro-privacy and civil liberties groups: Privacy International, Liberty, Amnesty International and Bytes for All.

The data sharing in the frame refers tothe NSAs Prism (where it collects data direct from U.S. Internetcompanies) and Upstream (where it taps directly into Internet cables to gather data) programs, and to theU.K.s use of RIPA (Regulation of Investigatory Powers Act) warrants to tap into U.S.-gathered signals intelligence. The existence of the NSA programs wasrevealed by documents released into the public domain by whistleblower Edward Snowden, back in 2013.

In a press release following todays IPT judgement Privacy Internationalnotes it is the first time the courthasruled against theintelligence and security services in its 15 year history.

However, in a twist that can only be described as Kafka-esque, the IPT still deemsU.S.-U.K.dragnet surveillancedata-sharing activities to be legal now andsinceDecember 2014, when it ruledin another judgement thatGCHQ access to NSA data-gathering was legal from then on on the grounds that the disclosure of the data-sharing programs (which, let us not forget, only came to light as a result of Snowdens whistleblowing) has allowed for adequate signposting of the secret policies governing how data flows between internationalspy agencies, and for adequate arrangements to ensure legal compliance.

Some of these secret governance policy disclosures were made to the court in an earlier case brought to the IPT by Privacy International et al.But asThe Guardian notes, some of the most sensitive evidence about interceptions was heard in private court sessions which excluded therights groups, and prevented wider public scrutiny. But thats judicial oversight, in the IPTs eyes hence itsfinding ofadequate arrangements.

The IPTsjudgement notes:

prior to the disclosures made andreferred to in the Tribunals Judgment of 5 December 2014, the regime governingthe soliciting, receiving, storing and transmitting by UK authorities of privatecommunications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or (on the Claimants case) Upstream, contravened Articles 8 or 10 ECHR [European Convention on Human Rights], but now complies.

(i) Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned.

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U.K. Court Says NSA-GCHQ Data-Sharing Was Illegal