Privacy International's legal action against UK mass surveillance

Documents made public in The Guardian from former CIA man Edward Snowden have revealed GCHQ's access to the NSA's PRISM communications surveillance system, and its own Tempora secret mass surveillance operation that taps into fibre optic cables, giving the Government access to huge amounts of data on both innocent citizens and targeted suspects. GCHQ  now claims to provide the “biggest internet access” of any intelligence agency in the "Five Eyes" alliance of eavesdropping agencies in the United Kingdom, the United States, Canada, Australia, and New Zealand.

Privacy International have filed a claim in the Investigatory Powers Tribunal (IPT) that challenges both programmes, and directly contradicts the Foreign Secretary's assertions. Dinah Rose QC and Ben Jaffey from Blackstone Chambers and Dan Squires from Matrix Chambers have been instructed by Bhatt Murphy Solicitors, who said "The UK authorities have been engaged in a regime of surveillance which amounts to a serious and unjustifiable violation of the rule of law: it breaches EU law, and it breaches the rights of the citizen to freedom of expression and privacy as protected by the Human Rights Act.”

The Tempora programme by its very nature appears to violate the underlying requirement for interception, which requires that surveillance is both necessary and proportionate under RIPA. In most RIPA cases, a minister has to be told the name of an individual or company being targeted before a warrant is granted. But section 8 permits GCHQ to perform more sweeping and indiscriminate trawls of external data if a minister issues a "certificate" along with the warrant.

Eric King, Head of Research at Privacy International said:

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. 

Mass, indiscriminate surveillance of this kind goes against the most basic fundamental human rights to privacy. The scope and scale of this program, which monitors the entire British public and much of the world, cannot be justified as necessary and proportionate."

While Privacy International intended to file the Prism claim in the Administrative Court, which would have made the proceedings public, Government lawyers said such a claim had to be filed instead with the IPT, a secret tribunal that does not make its proceedings public or have to justify reasons for its decisions.