GCHQ’s £1bn internet operation codenamed the Tempora programme, which was reportedly built up over five years by attaching “intercept probes” to transatlantic fibre-optic cables that pass through British Shores, has been deemed “legal in principle” by the Investigatory Powers Tribunal (IPT).
The IPT can investigate claims against MI5, MI6 or GCHQ, and has heard from lawyers representing the government and its associated spy agencies on its powers to capture, store and share citizens’ data after a legal challenge was made by civil liberty groups.
The complainants are Liberty, Privacy International and Amnesty International, as well as seven overseas human rights groups.
The IPT were asked to determine whether the Tempora and Prism programmes, leaked by former National Security Agency (NSA) contractor Edward Snowden, actually exist – the UK government has neither confirmed nor denied the existence of either programme – and whether either violates articles 8 and 10 of the European Convention on Human Rights.
The IPT followed its previous judgements in finding that UK security services may in principle carry out mass surveillance of all fibre optic cables entering or leaving the UK under the Regulation of Investigatory Powers Act (RIPA) 2000, by finding that the GCHQ programme Tempora is, in principle, legal.
In a statement, Privacy International’s Mike Rispoli said:
“In summary, the Tribunal in today’s decision said the system of mass surveillance disclosed by Edward Snowden could in principle be lawful. But the Tribunal has asked for more submissions about whether receiving bulk intercepted material from foreign intelligence agencies such as the NSA has been lawful until now.
“This is because until the recent hearings, the rules and procedures governing intelligence sharing have been kept totally secret. The European Convention on Human Rights usually requires that the rules and procedures be public,” he said.
Privacy International, and international civil libery group Bytes for All intend to appeal today’s decision.
Eric King, deputy direct at Privacy International emphasised that the decision by IPT is of huge concern.
“With GCHQ’s mass surveillance of undersea cables reported to have increased by as much as 7000 per cent in the last five years, today’s decision by the IPT that this is business as usual is a worrying sign for us all,” he said.
“The idea that previously secret documents, signposting other still secret documents, can justify this scale of intrusion is just not good enough, and not what society should accept from a democracy based on the rule of law,” he added.
During the case, the government was forced to disclose secret policies governing the interception of communications to show that GCHQ has been routinely intercepting “legally privileged communications” between lawyers and their clients in sensitive legal cases.