Law gives 'arbitary' protection against surveillance, tribunal told

Your choice of mobile phone service can determine whether the government can legally spy on you, tribunal told

Your choice of mobile phone service can determine whether the government can legally spy on you, Britain’s most secretive court heard yesterday.

The rapid growth in mobile communications have "nullified" safeguards to protect the public against unwarranted surveillance, lawyers for leading human rights groups told the Investigatory Powers Tribunal.

They were speaking during a week-long hearing into complaints that GCHQ’s mass surveillance of internet communications violates human rights law.

The case follows revelations by Edward Snowden that the UK’s electronic intelligence agency, GCHQ, is monitoring internet communications on a huge scale through its Tempora and Prism programmes.

Arbitrary law

Kirsty Brimelow QC, representing Amnesty International, told the five IPT judges that the law has failed to keep pace with rapid digital change and, as a result, offers the public only arbitrary protection against indiscriminate surveillance.

“This is a situation in which technology is mastering the law, rather than the law mastering the technology,” she said.

Internal v external

The tribunal heard that GCHQ can legitimately intercept telephone calls, text messages and emails under a general warrant issued by the Home Secretary under the Regulation of Investigatory Powers Act (2000), if the communication is “external” to the UK.

But technological advances have made the traditional distinction between "internal" and "external" irrelevant, exposing a huge range of communications from British citizens to potential surveillance.

For example, someone using a regular mobile handset, able to ping a nearby radio mast in central London, would be protected from surveillance.

But someone sending an SMS using Facebook’s WhatsApp, which is routed to California, could be legitimately monitored without a  specific warrant.

"Our legal regime is premised upon the incorrect notion that communications to and from friends and family in the UK will remain within the UK at all times. In the digital age, that is simply not the case – a large majority of every email and phone call made in Britain will leave the country in their transmission," said Carly Nyst, legal director of Privacy International.

"When the surveillance law allows every communication leaving the country to be intercepted, stored and analysed, the practical reality is that the intelligence services are scooping up the better part of all private communications in the UK."

Right to privacy

Privacy International, Liberty, Amnesty International, the American Civil Liberties Union and other overseas human rights group are backing the case against GCHQ.

The groups claim that  GCHQ’s Tempora interception programme violates the rights to privacy and freedom of expression enshrined in Articles 8 and 10 of the European Convention on Human Rights (ECHR).

"Legal frameworks that do not have the effect of protecting individuals’ privacy, and in fact facilitate large-scale interference with private communications in pursuit of vague notions of national security, are gravely inadequate under human rights law," said Nyst.

This week, the UN High Commissioner for Human Rights, Navi Pillay,  warned, in a report entitled The Right to Privacy in the Digital Age, that states are no longer resorting to surveillance as a security last resort.

“Governmental mass surveillance is emerging as a dangerous habit rather than an exceptional measure,” she said.

Governments have not provided for proper legal supervision, she adds, with “a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.”

This, claims Pillay, is closely linked to the infrastructure of the communications technologies themselves.

“The technological platforms upon which global political, economic and social life are increasingly reliant are not only vulnerable to mass surveillance”, the report says, “they may actually facilitate it.”

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