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IPT ruling on GCHQ matters more for what it permits than what it rebukes IPT ruling on GCHQ matters more for what it permits than what it rebukes
(34 minutes later)
The investigatory powers tribunal has done for the third time in a year what was once seen as unthinkable: ruled that surveillance carried out by GCHQ was illegal.The investigatory powers tribunal has done for the third time in a year what was once seen as unthinkable: ruled that surveillance carried out by GCHQ was illegal.
The IPT’s latest ruling related to surveillance of two international NGOs. Previous rulings found that the agency’s monitoring of attorney/client communications had violated the law, as had some of the agency’s bulk collection programmes for a period of years.The IPT’s latest ruling related to surveillance of two international NGOs. Previous rulings found that the agency’s monitoring of attorney/client communications had violated the law, as had some of the agency’s bulk collection programmes for a period of years.
All the rulings followed legal challenges arising from the publication by the Guardian and other outlets of classified documents released by Edward Snowden, and appear to mark a step-change in UK oversight, once described in internal documents as “light” compared with the US.All the rulings followed legal challenges arising from the publication by the Guardian and other outlets of classified documents released by Edward Snowden, and appear to mark a step-change in UK oversight, once described in internal documents as “light” compared with the US.
Or so it seems from the headlines. In reality, the rulings are less damning than they may first appear. Both of the earlier rulings centred on the publication of minimal information about oversight and regulation of the affected activities. Once that scant information was made public (as it now has been), the underlying activity was legal. GCHQ was once again free to collect in bulk and, on occasion, intercept attorney/client communications. Related: GCHQ's surveillance of two human rights groups ruled illegal by tribunal
Or so it seems from the headlines. In reality, the rulings are less damning than they may first appear. Both of the earlier ones centred on the publication of minimal information about oversight and regulation of the affected activities. Once that scant information was made public (as it now has been), the underlying activity was legal. GCHQ was once again free to collect in bulk and, on occasion, intercept attorney/client communications.
The latest ruling is much the same. A consortium of NGOs challenged potential GCHQ operations, and the IPT made “no determination” against most of the parties – unless it determines that surveillance was unlawful, the tribunal does not reveal whether or not a claimant was under surveillance – and made findings on two.The latest ruling is much the same. A consortium of NGOs challenged potential GCHQ operations, and the IPT made “no determination” against most of the parties – unless it determines that surveillance was unlawful, the tribunal does not reveal whether or not a claimant was under surveillance – and made findings on two.
In the case of the Egyptian Initiative for Personal Rights, communications were found to have been retained for longer than GCHQ policies allowed. In the case of the South African Legal Resources Centre, procedure for selection of communications for examination was “in error not followed”. In the case of the Egyptian Initiative for Personal Rights, communications were found to have been retained for longer than GCHQ policies allowed. In the case of South Africa’s Legal Resources Centre, procedure for selection of communications for examination was “in error not followed”.
Both were relatively narrow technical violations, and the ruling vindicated GCHQ’s broader policies and legal framework and allowed in principal for the agency to monitor internal NGOs.Both were relatively narrow technical violations, and the ruling vindicated GCHQ’s broader policies and legal framework and allowed in principal for the agency to monitor internal NGOs.
It is important to note that just because rulings are based on errors, it does not mean they are trivial. A recent report from the interceptions of communications commissioner noted six cases in a year where errors in Ripa intercepts had led to misguided action from law enforcement agencies. In this world, mistakes have consequences. It is important to note that just because rulings are based on errors, it does not mean they are trivial. A recent report from the interceptions of communications commissioner noted six cases in a year where errors in intercepts under the Regulation of Investigatory Powers Act had led to misguided action from law enforcement agencies. In this world, mistakes have consequences.
Perhaps the broadest consequence of the IPT ruling is not in what it finds unlawful but what it permits. One of the UK’s intelligence oversight bodies has accepted that GCHQ can monitor human rights NGOs across the world – an activity the UK government often condemns when it is carried out in Russia or China, or in the Middle East.Perhaps the broadest consequence of the IPT ruling is not in what it finds unlawful but what it permits. One of the UK’s intelligence oversight bodies has accepted that GCHQ can monitor human rights NGOs across the world – an activity the UK government often condemns when it is carried out in Russia or China, or in the Middle East.
Such regimes now have an easy retort: they can point at the UK’s rules and ask why we are holding them to a higher standard than that to which we hold ourselves.Such regimes now have an easy retort: they can point at the UK’s rules and ask why we are holding them to a higher standard than that to which we hold ourselves.