For the first time since Edward Snowden revealed the indiscriminate spying of the Five Eyes national intelligence alliance, everyone in the world has a chance to ask, what about me? Did they spy on my life?
On February 6th the UK-based privacy group Privacy International, along with human rights groups Liberty and Amnesty International, and Pakistan-based digital rights group Bytes for All won an important ruling against the British spy agency Government Communications Headquarters (GCHQ).
In what is so far the most successful anti-surveillance legal challenge since the Snowden revelations, the UK Investigatory Powers Tribunal (IPT) ruled that the sharing of NSA data with GCHQ was an illegal human rights violation up to December 2014, because there was no public legal rationale for the sharing. While the ruling is narrow, it’s the first time individuals have been able do something about the massive global spying schemes revealed by people like Mark Klein, Thomas Drake, William Binney, and most famously, Edward Snowden.
“There are few chances that people have to directly challenge the seemingly unrestrained surveillance state, but individuals now have an opportunity to finally hold GCHQ accountable,” said Eric King of Privacy International.
The IPT is the only court where a plaintiff can bring GCHQ or MI5 or MI6 to court in the UK. In their 15 years of existence, this is the only time they’ve ruled against GCHQ in any way. They didn’t rule that mass surveillance itself was illegal. They ruled that information shared with GCHQ by the NSA was illegal because the legal rationale for such sharing was secret. When the court was informed of the legal interpretation used by GCHQ, which the IPT in turned summarized for the public, the court ruled that information sharing after the December 2014 ruling was now legal. This ruling didn’t satisfy Privacy International and the other claimants, and they are currently filing an appeal to the European Court of Human Rights.
This ruling covers only information passed from NSA to GCHQ, doesn’t include the often indistinguishable materials gathered by the other three eyes (Australia, Canada, and New Zealand), or information gathered by GCHQ. For instance, if you work for a Belgian telecom that was infiltrated by GCHQ with malware and you had your computers hacked by GCHQ, this query would come up no, because the information gleaned from the malware GCHQ placed on your computer was harvested by GCHQ and sent to NSA, not vice-versa.
What Information The Ruling Gives You
Because the IPT found the intelligence sharing to be illegal, anyone, inside or outside the UK, can file a complaint to the IPT and ask if their communications were part of that illegal sharing, and be legally entitled to an answer. King explained, “If they don’t find anything, it’s likely they respond ‘no determination’. If they do find something, the IPT is obliged to give a declaration to the individual that their communications were illegally interfered with.”
This one specific way the IPT’s ruling works means that only information gathered by the NSA, passed to GCHQ, retained or accessible by GCHQ today, and linked via a selector given to IPT will get a positive reply. If any of the other Five Eyes or GCHQ itself did the surveilling, the answer is likely to be the elusive “no determination”
In short, to the question “Have I been watched by the Five Eyes?” a yes means yes, and a no means maybe.
Despite this apparent narrowness, the number of people that could get a yes could be in the hundreds of millions. However, The IPT will not reveal the granularity of information GCHQ kept on you. “People will never find out if it was their phone records that GCHQ had, or just a specific email,” said King, “They only answer they’ll get is a broad one of yes, GCHQ had data about you illegally from NSA.”
Nevertheless, this is the first time any government has been held accountable for the mass surveillance of everyone on the net since Snowden drove it into the public consciousness over 18 months ago.
How To Make Yourself Heard (and less retained)
To sign up to be part of Privacy International’s first round of inquiries to the IPT, and request that GCHQ destroy illegally gathered information about you, visit the Privacy International site and give them a selector to pass along to the IPT. These selectors are data that link to you, like your name, email address, and/or phone number. If you have multiple selectors, like email addresses which you don’t wish to link together, you can submit multiple requests. (You will need to clear your cookies or switch browsers between requests.)
This information will be confirmed by PI by email, then bundled up and passed along to the IPT to begin the process of informing inquirers if they were illegally spied on by GCHQ, in this one very special and specific way, before December 2014 — then destroying the illegal information.
“If (you) join the legal claim, we will pass (your) information onto the IPT and begin the fight to force GCHQ to notify those illegally spied on,” said King.
King warns, “This won’t be a short process.” The IPT has never done this before, and any effort to get information out to the public is likely to face massive efforts at evasion of the legal requirements by GCHQ. But it’s also the public’s first chance to directly protest against the mass surveillance conducted against us all by secretive national spy agencies, and it’s likely to help clarify what’s actually gone on behind these closed doors. “Part of why we’re doing this is to find out the scope of intelligence sharing between NSA and GCHQ. Despite what has been revealed it’s still unclear exactly what is shared and for how long,” said King. “This might help give us some answers.”
The Ongoing Problem with Secret Law
This case, and many more like it brought by Privacy International as well as human rights groups, internet service providers, American groups like EFF and ACLU, and more, are still winding their way through various national and international legal systems, but they struggle against secret legal regimes. These are laws and interpretations of laws that have been classified, and therefore face no scrutiny in the democratic process — the ultimate perversion of law itself. This has some strange effects that came up in the IPT case. While the IPT is satisfied with what it was told by GCHQ in December 2014 as the rationale for sharing, the people of Britain don’t get to weigh in on that democratically. And neither do the rest of us, despite being spied on. Even IPT doesn’t have anything close to the whole story, since it had never asked before the case came up. “We don’t know if the secret policy GCHQ reveled was always in place, or whether they created it on the spot,” said King,
“That’s the problem with secret law. It can be changed, amended, destroyed without anyone knowing.”
As courts engage and publics seek to reform the massive powers of literally out-of-control intelligence agencies around the world, the problem of secret laws and secret powers is likely to crop up repeatedly. By definition secret law exists above the rule of law the everyone else has to live by. If only you know the law, and how you’re implementing it, then anything you do, from economic data theft to human rights violation to murder, can be considered legal and unquestionable, without democratic accountability. With this ruling and our chance at public response, we begin to take back the law itself.