Legal challenge to UK surveillance set to kick off at Investigatory Powers Tribunal

The biggest legal challenge to government’s powers to conduct mass internet surveillance takes place 14-18 July

A high-profile legal challenge to the UK government’s powers to conduct mass internet surveillance is set to take place 14 to 18 July 2014.

The challenge is being brought by an alliance of ten civil liberties groups, led by Privacy International, and will be heard by a panel of judges comprising the Investigatory Powers Tribunal.

The tribunal – the only body that handles complaints against UK intelligence agencies – will examine allegations that UK government surveillance is operated outside of the rule of law, lacks accountability and is neither necessary nor proportionate.

The case seeks take the government to task over the lack of a publicly accessible legal framework in which communications data of those located in the UK is accessed after it is obtained and passed on by the US National Security Agency (NSA) through the Prism internet surveillance programme. 

The case also seeks to examine alleged indiscriminate interception and storing of huge amounts of data by tapping undersea fibre optic cables through the Tempora programme, first revealed by former NSA contractor and whistleblower Edward Snowden.

According to Privacy International, documents leaked by Snowden indicate that the UK had access to the Prism programme since at least June 2010, and generated 197 intelligence reports from the system in 2012.

The case claims that, without a legal framework, it is impossible to hold the government accountable for any potential abuses, in breach of the European Convention of Human Rights.

The convention provides the right to privacy and personal communications, and the right to freedom of expression.

“The UK authorities have been engaged in a regime of surveillance which amounts to a serious and unjustifiable violation of the rule of law: it breaches EU law, and it breaches the rights of the citizen to freedom of expression and privacy as protected by the Human Rights Act,” said Bhatt Murphy Solicitors, who are acting for Privacy International.

Tempora: Tapping the internet

The case is challenging the government's Tempora operation, which reportedly conducts mass surveillance by tapping undersea fibre optic cables that land in the UK, giving the government access to huge amounts of data on both innocent citizens and targeted suspects.

It is reported that the GCHQ project has, since 2008, steadily been building capability and now claims to provide the “biggest internet access” of any intelligence agency in the Five Eyes alliance.

Privacy International claims that the Tempora programme violates the underlying requirement for interception, which requires that surveillance is both necessary and proportionate under the Regulation of Investigatory Powers Act (Ripa).

Legal explanation

Charles Farr, the director general of the Office for Security and Counter Terrorism said in his witness statement for the tribunal hearing that the surveillance of UK citizens’ social media accounts is permitted under the law because communications via US-based online services are defined as “external communications”.

Farr’s statement, published by the rights organisations ahead of the tribunal, is the first time the UK government has explained why it considers it legal to intercept communications through its Tempora programme.

Publication of the statement prompted calls reforms of intelligence agency oversight mechanisms to improve accountability by parliament’s cross-party home affairs select committee, former UK security minister Pauline Neville-Jones, and others.

The government has since reportedly agreed to a two-year expert review of the Ripa legislation in return for opposition support for the emergency surveillance legislation expected to be passed on 17 July 2014.

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