The sharing of information between the British GCHQ and the NSA was ruled unlawful by a UK tribunal last Friday. The tribunal, with this ruling, implied such activities remained unlawful for at least seven years up until December 2014.
The Investigatory Powers Tribunal was created 15 years ago to expressly deal with complaints against the British intelligence agency. They declared some aspects of a regime to gain access to information on millions of UK citizens by the GCHQ as unlawful. Such regime allowed the British agency to get information previously gathered from the internet by the NSA, without the need of any warrants.
The IPT said that such information sharing activities were unlawful because the terms under which they were deployed had not been made public, and that this was the case until December last year. According to the IPT, not making public the regulations for the GCHQ to access data from the NSA, contravened human rights laws. More precisely, it went against articles eight and 10 of the European Convention on Human Rights that defend the right to privacy and freedom of expression, respectively.
The ruling stated that the regime controlling the request, reception, storing and broadcasting of private information of individuals in the UK by certain authorities in the same country, which was previously obtained by US authorities, conflicted with Articles 8 and 10 of the European Human Rights Convention. With its pronouncement, the tribunal openly declared that the GCHQ and NSA intelligence sharing regime was unlawful. The public was not made aware of the existence of such regime.
The IPT indirectly suggested that the unlawful regulations under which the British agency was receiving information collected by the NSA, remained so until December 2014. Thanks in part to some of the documents aired during the course of the judgment in December, the activities between both agencies have been considered legal.
The case against the GCHQ was brought by several Human Rights groups including Privacy International, Bytes for All, Liberty and Amnesty International. This, a consequence of the challenge in which the existence of programs like Prism and Upstream were revealed by former CIA contractor Edward Snowden, and made public via a British newspaper.
The Human Rights groups consider the ruling a victory, however they also consider it is not good enough to try to solve the issue by making the information-sharing activities legal just because the Government decided last minute to make public the arrangements for such activities, arrangements, which in the past they wanted to keep secret. According to a GCHQ spokesman on the other hand, the tribunal was affirming once more that the procedures in the intelligence-sharing program were absolutely appropriate. He went on to add that the problem was only about how much detail from those procedures needed to be made public.
Following the tribunals decision on Friday, Privacy International and Bytes for All have declared, that although they welcome such decision, they will bring the case to the European Court of Human Rights. The civil liberties groups disagree with the tribunal’s earlier conclusion, which made the intelligence-sharing regime and the agencies mass surveillance lawful from December because a limited amount of rules regarding their arrangements had to be disclosed.
By declaring the intelligence sharing activities between the British and American agencies as unlawful, the Investigatory Powers Tribunal has made history. It is the first time in 15 years that the tribunal has ruled against the GCHQ.
By Vanessa Pouso