Privacy
campaigners file claim saying laws used to justify data trawling by Prism and
Tempora programmes are being abused
 |
| GCHQ, in Cheltenham, harvests millions of emails, phone calls and Skype conversations from undersea cables that carry internet traffic in and out of the UK. Photograph: Reuters |
The British
and US spy programmes that allow intelligence agencies to gather, store and
share data on millions of people have been challenged in a legal claim brought
by privacy campaigners.
Papers
filed on Monday call for an immediate suspension of Britain's use of material from the Prism programme, which is run by America's National Security Agency.
They also
demand a temporary injunction to the Tempora programme, which allows Britain's
spy centre GCHQ to harvest millions of emails, phone calls and Skypeconversations from the undersea cables that carry internet traffic in and out
of the country.
Lawyers
acting for the UK charity Privacy International say the programme is not
necessary or proportionate. They say the laws being used to justify mass data
trawling are being abused by intelligence officials and ministers, and need to
be urgently reviewed.
Privacy
International has submitted a claim to the Investigatory Powers Tribunal (IPT),
which is supposed to review all complaints about the conduct of Britain's spy
agencies. The organisation hopes for a public hearing and early rulings because
of the seriousness of the situation.
The group
was prompted into legal action by the US whistleblower Edward Snowden and the
leak of top secret papers he gave to the Guardian. This led to a series of
stories about the extent of modern-day surveillance and the disclosure of
activities that have provoked a worldwide debate about the behaviour of western
intelligence agencies.
In a
22-page statement of grounds, Privacy International refers to the Prism
programme, which allows the NSA to intercept the communications of non-US citizens living outside America from global internet companies such as Google,
Facebook and Yahoo.
The
Guardian revealed that some of this information has been shared with GCHQ. So
far the government has refused to say under what legal authority this has been
done – if GCHQ had wanted to get this material for itself in the UK, it would
have to apply under the Regulatory of Investigatory Powers act (Ripa) for a
warrant from a minister.
Campaigners
fear Britain is circumventing its own rules to make it easier to get
intelligence, and that the emails and calls of Britons are almost certainly
being swept up by the NSA.
"The
contents of an individual's phone calls and emails and the websites they visit
can be information of a obviously private nature," the claim says.
"If UK
authorities are to be permitted to access such information in relation to those
located in the UK in secret and without their knowledge or consent, the
European convention on human rights (ECHR) requires there to be a legal regime
in place which contains sufficient safeguards against abuse of power and
arbitrary use. There is no such regime."
In modern
communications, emails and phone calls made in the UK pass electronically
through the US and can be intercepted by the NSA.
"Through
their access to the US programme, UK authorities are able to obtain private
information about UK citizens without having to comply with any requirements of
Ripa," the claim argues.
The second
ground focuses on Tempora, a system that stores for up to 30 days vast
quantities of data drawn from undersea internet cables.
The
Guardian revealed this programme is part of an over-arching project at GCHQcalled "Mastering the Internet". The data is shared with NSA and by
last year 550 analysts from both countries were filtering through the contents.
Privacy
International argues this amounts to "blanket surveillance".
"Such
surveillance cannot be justified as a proportionate response to a legitimate
aim. Bulk interception of communications and bulk inspection of such data is
disproportionate interference with the rights guaranteed by article 8 of the
ECHR, and it is not being undertaken pursuant to a legal regime containing
sufficient safeguards to render it in accordance with the law."
The claim
says Ripa "does not provide sufficiently specific or clear authorisation
for such wide-ranging and universal interception of communications, nor any
sufficient or proper safeguards against misuse that are known and available to
the public".
Carly Nyst,
the head of international advocacy at Privacy International, said the group had
wanted to bring the legal challenge through a normal court so the arguments
could be heard in public.
But the
British government had insisted the group go through the IPT, which has only
ever upheld 10 complaints against any of the agencies from more than 1,000
cases.
"We
have been forced to take our concerns to a secret tribunal, the IPT," she
said. " It shouldn't be a surprise. Why would the government want their
dirty laundry aired in public when it can be handled by a quasi-judicial body
that meets and deliberates in secret, the decisions of which are neither public
nor appealable to any higher authority?"
She added:
"In one of the world's most respected and stable democracies, there exists
a system of 'oversight' that would be at home in any authoritarian regime. A
public debate about the covert activities of British intelligence services is
drastically needed and long overdue."
Eric King,
head of research at Privacy International, added: "One of the underlying
tenets of law in a democratic society is the accessibility and foreseeability
of a law. If there is no way for citizens to know of the existence,
interpretation, or execution of a law, then the law is effectively secret. And
secret law is not law. It is a fundamental breach of the social contract if the
government can operate with unrestrained power in such an arbitrary
fashion."
The civil
rights group Liberty has also made a complaint to the IPT. It believes that its
own electronic communications and those of its staff may have been unlawfully
intercepted by the security services and GCHQ.
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