

ISPs take legal action against GCHQ - shapeshed
http://www.bbc.co.uk/news/technology-28106815

======
shapeshed
Some more information on the legal action here [1]

The action makes repeated reference to the European Convention of Human
Rights, and UK lawyers have already questioned [2] the legality of revelations
around GCHQ's activities in relation to ECHR.

The current legislation [3] covering GCHQ's activities is from 1994.

1: [https://www.privacyinternational.org/blog/stop-breaking-
the-...](https://www.privacyinternational.org/blog/stop-breaking-the-internet-
internet-and-communications-service-providers-take-legal-action)

2: [http://www.theguardian.com/uk-news/2014/jan/28/gchq-mass-
sur...](http://www.theguardian.com/uk-news/2014/jan/28/gchq-mass-surveillance-
spying-law-lawyer)

3:
[http://www.legislation.gov.uk/ukpga/1994/13/crossheading/the...](http://www.legislation.gov.uk/ukpga/1994/13/crossheading/the-
secret-intelligence-service)

------
themartorana
"While the ISPs taking the action were not directly named in the leaked
Snowden documents..."

Does the UK have the same legal concept of "standing" as the US does?

"In the United States, the current doctrine is that a person cannot bring a
suit challenging the constitutionality of a law unless the plaintiff can
demonstrate that he/she/it is or will "imminently" be harmed by the law." [1]

The US government often uses the absence of (or the secrecy of) proof of
_direct_ harm to a person or agency to have the complaint quashed before it
can ever really be argued.

[1]
[http://en.m.wikipedia.org/wiki/Standing_(law)](http://en.m.wikipedia.org/wiki/Standing_\(law\))

~~~
AlyssaRowan
Some of the ISPs in question have been directly targeted by GCHQ operations;
pervasive GCHQ operations like TEMPORA and QUANTUM affect every internet user
that transits through an affected point. That is no longer in dispute after
Snowden.

I think they have locus to bring these actions for judicial review, yes.

~~~
jackgavigan
Kennedy v UK [1] is of relevance here. In that case, the European Court of
Human Rights held that an individual did not necessarily need to prove that
his communications had been intercepted in order to complain that a law that
permitted such interception was in contravention of Article 8 of the European
Convention on Human Rights (i.e. the right to privacy).

However, the Court went on to deny Kennedy's complaint that the UK's
Regulation of Investigatory Powers Act (RIPA) violates Article 8 because it
was proportionate and fell under the exclusion for "national security, public
safety or the economic well-being of the country, [and] for the prevention of
disorder or crime". [2]

Also, if you read Theresa May's recent speech on the topic [3], you'll notice
that she spends a lot of time talking about warrant approvals, oversight and
so on. That is all about safeguards and proportionality, and is taken into
account by the Court when they are considering whether a particular law
contravenes Article 8.

1:
[http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-...](http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-98473)

2:
[http://en.wikipedia.org/wiki/Article_8_of_the_European_Conve...](http://en.wikipedia.org/wiki/Article_8_of_the_European_Convention_on_Human_Rights)

3: [https://www.gov.uk/government/speeches/home-secretarys-
defen...](https://www.gov.uk/government/speeches/home-secretarys-defence-and-
security-lecture)

~~~
AlyssaRowan
I'm indeed familiar with her speech of last week. I can't say I find it
particularly helpful to any debate. It is intentionally confusing and
obfuscatory, as you might expect from a senior politician with a lot to lose
on a sensitive topic she hopes she can bury with an election coming up.

I don't know about you, but despite having (unknowingly at the time) walked
past a live IRA bomb in my childhood which detonated a few hours later, I feel
far more threatened by mass surveillance than by _any_ other state or non-
state actor by any means. Mass surveillance has a truly chilling effect upon
democracy, upon speech, upon the way we think. It is actively poisonous to
freedom. And it _is_ happening - her denials aside, these are not mere
_assertions_ : thanks largely to Snowden (and the other, not-so-publicised
leakers), they are strongly and undeniably _evidenced_. Other evidence is
available and can be obtained. This action - and Snowden's leaks - _is_ the
external oversight intended, and needed, to stop mass surveillance - any
system of "oversight" in place has clearly failed.

Thing is, GCHQ have operated for over two decades now under the understanding
that they _have_ authority to actually conduct SIGINT _operations_ at large -
but that it's the responsibility of _analysts_ internal, external
(TSS/SIS/NCA/MoD/etc) and extraterritorial (NSA and the rest of the Five Eyes,
etc) that _query_ GCHQ about the _results_ of those operations with specific
targeted selectors (search queries; email addresses, names, IP addresses,
website names, et al) to obtain sufficient clearance and authority to do so.
(Broadly the same doctrine NSA have: that the interception itself isn't
spying, the search/analysis of the intercepts is. Convenient for them, but
questionable at best.)

The operations themselves, however, are frequently in much murkier territory;
sometimes without any oversight or accountability at all, and a good number
are conveniently obscured; from internal and external oversight, and even from
Government Cabinet ministers such as Ms May, because it's too sensitive!
Doesn't matter if you're TOP SECRET//STRAP1 or how many orange and purple
forms you wave around, unless you're actively part of the individual SCI
compartment in question, you're probably not even aware it exists, except
maybe by a vague probably-two-word cover name (which is _supposed_ to be
arbitrary, but the newer guard loves their cute buzzwords too much). This is
long-standing, if low-key, practice, spanning multiple governments -
infrastructure and inertia outlasts governments which come and go, after all.
Indeed, that was the entire basis under which the "Mastering The Internet"
initiative was able to be set up in the first place; to my own knowledge this
broad, general doctrine actually dates back a longer way in GCHQ than NSA, at
least to the early 80s and the SystemX exchange intercept circuits. (It stands
in stark contrast to their search policies, which they're obviously much
happier to parade around before oversight.)

Can she honestly say that she knew of the actual _modus operandi_ of, for
example, the infamous OPTIC NERVE database - a very large collected archived
corpus of images (quite a number of them explicit, as you'd expect from a huge
recorded cache of intimate conversations the participants believed private)
collected via mass passive interception of Yahoo! webcam chats of _all_ user
streams transiting the interception points - and believed _that_ was a lawful,
necessary and proportionate infringement of human rights justifying a
warrant?! (If she could, I doubt she'd want to.) Who did? Probably no-one. Sir
Anthony May: Did you see that? No, I thought not. It seems plainly wrong to
me, as obvious an unjustifiable operation as one could be, to no actual useful
intelligence purpose, and a clear sign that the boys from Cheltenham had
indeed gone rogue - and one entirely unreported, until Snowden.

Thanks, Snowden, Greenwald, the Guardian, Jacob, et al. Your work is
incredibly valuable and you deserve those awards. Now maybe we can have a
conversation about all of this - but such a conversation obviously can't be
effective when we're still being so profoundly, patronisingly whitewashed.

------
UVB-76
Great work by all involved.

Shameful that larger ISPs are not taking similar action.

