17 October 2016
British security agencies have secretly and unlawfully collected massive volumes of confidential personal data, including financial information, on citizens for more than a decade, senior judges have ruled.
The investigatory powers tribunal, which is the only court that hears complaints against MI5, MI6 and GCHQ, said the security services operated an illegal regime to collect vast amounts of communications data, tracking individual phone and web use and other confidential personal information, without adequate safeguards or supervision for 17 years.
Privacy campaigners described the ruling as “one of the most significant indictments of the secret use of the government’s mass surveillance powers” since Edward Snowden first began exposing the extent of British and American state digital surveillance of citizens in 2013.
The tribunal said the regime governing the collection of bulk communications data (BCD) – the who, where, when and what of personal phone and web communications – failed to comply with article 8 protecting the right to privacy of the European convention of human rights (ECHR) between 1998, when it started, and 4 November 2015, when it was made public.
It added that the retention of of bulk personal datasets (BPD) – which might include medical and tax records, individual biographical details, commercial and financial activities, communications and travel data – also failed to comply with article 8 for the decade it was in operation until it was publicly acknowledged in March 2015.
“The BPD regime failed to comply with the ECHR principles which we have above set out throughout the period prior to its avowal in March 2015. The BCD regime failed to comply with such principles in the period prior to its avowal in November 2015, and the institution of a more adequate system of supervision as at the same date,” the ruling concluded.
The ruling comes as the House of Lords is debating the final stages of the investigatory powers bill – the snooper’s charter – which will put the security services’ mass digital surveillance on a clear legal footing for the first time.
Diane Abbott, the shadow home secretary, said the ruling was “a sharp reminder” that the “draconian bill” – which Labour has abstained on so far – needed amending to ensure that surveillance powers should not be lightly handed over to the security services without greater accountability.
The investigatory powers bill will put mass digital surveillance activities on a clear legal footing for the first time since Snowden’s disclosure.
Chaired by Mr Justice Burton, the IPT ruling revealed that security agency staff had been sent internal warnings not to use the databases containing the vast collections of information to search for or access details “about other members of staff, neighbours, friends, acquaintances, family members and public figures”.
It also revealed concerns within the security agencies about the secretive nature of their bulk data collection activities.
In February 2010, a Mr Hannigan, then of the Cabinet Office, wrote: “It is difficult to assess the extent to which the public is aware of agencies’ holding and exploiting in-house personal bulk datasets, including data on individuals of no intelligence interest … Although existing legislation allows companies and UK government departments to share personal data with the agencies if necessary in the interests of national security, the extent to which this sharing takes place may not be evident to the public.” It is not clear from the ruling if this is Robert Hannigan, who went on to run surveillance agency GCHQ from 2014.
The campaign group Privacy International said the ruling showed that despite this warning internal oversight failed to prevent the highly sensitive databases being treated like Facebook to check on birthdays, and “very worryingly” on family members for “personal reasons”.
The IPT ruling included the disclosure from an unpublished 2010 MI5 policy statement that the BPDs included material on the nation’s personal financial activities. “The fact that the service holds bulk financial, albeit anonymised, data is assessed to be a high corporate risk, since there is no public expectation that the service will hold or have access to this data in bulk. Were it to become widely known that the service held this data, the media response would most likely be unfavourable and probably inaccurate,” it said.
The legal challenge centred on the acquisition, use, retention and disclosure by the security services of BCD under section 94 of the Telecommunications Act 1984 and the use of BPDs under a variety of legal powers. The tribunal noted the highly secretive nature of the communications data regime, saying “it seems difficult to conclude that the use of BCD was foreseeable by the public when it was not explained to parliament”.
Mark Scott, of Bhatt Murphy Solicitors, who was instructed by Privacy International in the legal challenge, said: “This judgment confirms that for over a decade UK security services unlawfully concealed both the extent of their surveillance capabilities and that innocent people across the country have been spied upon.”
Millie Graham Wood, legal officer at Privacy International, said: “[The ruling is] a long overdue indictment of UK surveillance agencies riding roughshod over our democracy and secretly spying on a massive scale.”
She said the use of BCD carried huge risks. “It facilitates the almost instantaneous cataloguing of entire populations’ personal data. It is unacceptable that it is only through litigation by a charity that we have learnt the extent of these powers and how they are used.
“The public and parliament deserve an explanation as to why everyone’s data was collected for over a decade without oversight in place and confirmation that unlawfully obtained personal data will be destroyed.”
Privacy International said the judgment did not specify whether the unlawfully obtained, sensitive personal data would be deleted.
A government spokesperson said the ruling showed that the regimes used to hold and collect data since March and November 2015 respectively were legal.
“The powers available to the security and intelligence agencies play a vital role in protecting the UK and its citizens. We are therefore pleased the tribunal has confirmed the current lawfulness of the existing bulk communications data and bulk personal dataset regimes.
“Through the investigatory powers bill, the government is committed to providing greater transparency and stronger safeguards for all of the bulk powers available to the agencies.”
Abbott said the disclosure of unlawful activity was shocking: “No one is above the law and the security services must be held to account on this. This scandal also has wider political implications,” she said adding that the bill places “far too much power in the hands of the police and politicians without judicial oversight and diminishes the rights of the citizens”.
“I myself have been a victim of unjustified surveillance over a
number of years. To this day I have been given no indication as to
whom approved this surveillance and why,” she said.