
UK-US surveillance regime was unlawful ‘for seven years’ - owlmusic
http://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa
======
ch215
The way this same story has been spun by the BBC worries me.

You'd think the news line has to be, as the Guardian and others are reporting,
GCHQ mass Internet surveillance was 'unlawful'.

The Beeb did go with 'unlawful' in their original headline but the story has
since been watered down with sheer wordiness.

'Unlawlful' now appears in the tenth paragraph, below an analysis panel, and
is only then included in a quotation from a campaign group.

Nowhere in the article does the BBC succinctly say a tribunal held that GCHQ
breached human rights law. It simply says the agency is now complaint (without
saying that it was not for seven years).

To me at least, it seems the BBC is becoming less of a public-service
broadcaster and more of a state one.

\-- GCHQ censured over sharing of internet surveillance data with US
[http://www.bbc.co.uk/news/uk-31164451](http://www.bbc.co.uk/news/uk-31164451)

~~~
appleflaxen
That's a great point.

About the only thing you can do is call them on it in social media; tell them
you are paying attention:

    
    
      @BBC why won't you use the word "illegal" or "unlawful" in the headline? 
      This is far bigger than censure.

~~~
ch215
I'm going to _try_ to stop reading BBC News instead.

It won't be easy because I've been using it for years. I like the site's
navigation and readability but the content is often lacking given their
resources.

They did something similar with the Prince Andrew story, reporting his
"emphatic" denials before mentioning the allegations.

Clearly, he is innocent until proven guilty. However, the Beeb regularly seems
eager to jump to the defense of the powerful rather than scrutinise.

I'm veering way off-topic now but this morning they had a big, brash, bullshit
"breaking news" banner for a piece about a tennis player's wedding date.

That may be of interest to the public but it's not in the public interest. Too
often the BBC conflates the two as meaning the same thing.

~~~
toyg
_> However, the Beeb regularly seems eager to jump to the defense of the
powerful rather than scrutinise._

Well, the one time they got a bit too uppity (on the Iraq invasion), their
head was literally cut off.

The UK is a funny country. Lots of freedom, but certain powerful interests
simply won't be restrained by things like laws or common decency.

------
jackgavigan
So, one of the key things about this ruling is that it declares "that prior to
the disclosures made and referred to in the Tribunal’s Judgment of 5 December
2014, the regime governing the soliciting, receiving, storing and transmitting
by UK authorities of private communications of individuals located in the UK,
which have been obtained by US authorities pursuant to Prism and/or (on the
Claimants’ case) Upstream, _contravened Articles 8 or 10 ECHR_ ".[1]

ECHR refers to the European Convention on Human Rights[2]. Article 8 covers
privacy. Article 10 covers freedom of expression.

The Human Rights Act 1998 declares that "It is _unlawful_ for a public
authority to act in a way which is incompatible with a Convention right"[3]
(and GCHQ is classified as a public authority) but I'm not aware of any
legislation that would classify such actions as a crime. Therefore, while
monetary damages may be awarded[4], it seems unlikely that anyone could be
held personally accountable (in the sense of being charged with a crime).

Ironically, the Home Office just announced a public consultation on the draft
codes of practice for interception of communications and "equipment
interference" (which covers hacking).[4]

1: [http://www.ipt-
uk.com/docs/Liberty_Ors_Judgment_6Feb15.pdf](http://www.ipt-
uk.com/docs/Liberty_Ors_Judgment_6Feb15.pdf)

2:
[http://en.wikipedia.org/wiki/European_Convention_on_Human_Ri...](http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights)

3:
[http://www.legislation.gov.uk/ukpga/1998/42/section/6](http://www.legislation.gov.uk/ukpga/1998/42/section/6)

4:
[http://www.legislation.gov.uk/ukpga/1998/42/section/8](http://www.legislation.gov.uk/ukpga/1998/42/section/8)

5: [https://www.gov.uk/government/consultations/interception-
of-...](https://www.gov.uk/government/consultations/interception-of-
communications-and-equipment-interference-draft-codes-of-practice)

~~~
peteretep
I may be alone here, but while I don't always agree with the laws of the
country, I want the government, army, police, and civil service to be acting
inside those laws.

~~~
7952
I get the impression that the agencies actually do want to act legally. And
the government go to great efforts to make sure that these kind of actions are
legallised after the fact. I wouldn't be suprised if this ruling is used as an
excuse to leave the ECHR.

Personally I think it is better to have tight laws that are sometimes broken
than loose laws that authorize anything. I understand that there are
situations where agents may have to break the law and should have a reasonable
defence against prosecution (akin to self defence). Instead we get this world
in which these grey areas are ignored to the detriment of everyone.

~~~
xyzzy123
You're being downvoted unfairly IMHO. I'm against the status quo, but the
people in these organisations tend to believe they're doing the right thing.
They're not scofflaws, but they are isolated and insulated.

There are a lot of legal exemptions for agencies, but they are well aware
they're not above the law. The public scrutiny will create genuine headaches
for them, and I can guarantee you right now that there are a lot of people
whose sole job is to ensure that they meet directives.

They're not gonna change international agreements over it though.

I am surprised that people on HN aren't seeing this for the genuine victory it
is; only law can bind these entities, and it's not a quick process. This is
the process working, as well as it ever does (for ill and good).

~~~
DanBC
> but the people in these organisations tend to believe they're doing the
> right thing. They're not scofflaws, but they are isolated and insulated.

I agree. They think they're following UK law. Here's an article from Grauniad
which supports that: [http://www.theguardian.com/uk/2013/jun/21/legal-
loopholes-gc...](http://www.theguardian.com/uk/2013/jun/21/legal-loopholes-
gchq-spy-world)

> _The briefings, which are entitled UK Operational Legalities, stress that
> GCHQ "is an organisation with a highly responsible approach to compliance
> with the law"._

> _GCHQ also has a well staffed legal team, known as OPP-LEG, to help staff
> navigate their way through the complexities of the law._

> _But there appears to be some nervousness about Tempora. In a paper written
> for National Security Agency (NSA) analysts entitled A Guide to Using
> Internet Buffers at GCHQ, the author notes: "[Tempora] represents an
> exciting opportunity to get direct access to enormous amounts of GCHQ's
> special source data._

> _" As large-scale buffering of metadata and content represent a new concept
> for GCHQ's exploitation of the internet, GCHQ's legal and policy officers
> are understandably taking a careful approach to their access and use."_

~~~
morsch
The mob also has well staffed legal teams to help their staff navigate through
the complexities of the law.

It's easy to keep the appearance of following the law when you're a secret
organisation on a mission, with little public oversight. And unlike organised
crime, intelligence services don't have to rely on blackmail to get a direct
line to the executive and legislation.

Admit to the stuff that's legal, make the stuff that's borderline a political
issue, make excuses for the stuff that was illegal then retroactively legalise
it, all the while relying on the bottom end of the iceberg being secret for
long enough that you've got time to destroy the evidence or nobody cares
anymore.

I'm sure that's how it works, it's not even malicious, it's just tribalism.
It's why we institute transparency and accountability in most other places.
Give your local library enough funding and remove all the oversight and in 10
years it'll have a bunch of skeletons in the closet and a "well staffed legal
team to help them navigate their way through the complexities of the law."

------
junto
Whilst I applaud the ruling, I doubt it will make much of difference. The
British government simply uses extensions to the "temporary" Terrorism Act
2000 and its modifications in 2001, 2005, 2006 and 2008 and/or RIPA.

I'm getting a bit tired of politicians standing up in the House of Common's,
stating we need a "temporary" act to reduce liberty and privacy under the
guise of terrorism, only to extend the rulings indefinitely. It's bullshit.

Also, with regards to RIPA, the section related to "Use of communication data"
requires only "senior member of that authority", whilst wire taps and reading
post requires authorisation from "Warrant from Home Secretary or Cabinet
Secretary for Justice". The first one should also move under this authority
and blanket surveillance should be banned.

Conspiracy theorist me says we should expect another "act of terrorism" on the
UK mainland. This government needs to bolster its control, as they did in
Australia, France and Canada. After every attack, the direct effect is that
politicians start looking for ways to spin that into invasions of privacy and
liberty. Every god damn time.

P.S. Interestingly, Germany is one of the few large European nations with
troops in "Muslim lands", that has to date not had a major terrorist incident.
They have a large Muslim population, which although largely very moderate and
westernised, do have a minority of people who are preaching extremism. Also,
many of the terrorist cells (including 9/11) have originated, or passed
through Germany.

~~~
matthewmacleod
_Conspiracy theorist me says we should expect another "act of terrorism" on
the UK mainland. This government needs to bolster its control, as they did in
Australia, France and Canada. After every attack, the direct effect is that
politicians start looking for ways to spin that into invasions of privacy and
liberty. Every god damn time._

I appreciate that you prefixed this, but are you _really_ implying that the
recent attacks in France were planned by the government? Or that the 7/7
bombings in London were?

That really dilutes the value of the other points you make – which I do agree
with.

~~~
socksy
It's not so much that such an attack would be created by the government (which
if that's what GP is saying, then I utterly agree with you). It's more what's
done after the attack — painting it as a terrorist attack in the first place,
then arguing that it like all terrorist attacks could have been prevented if
intelligence were more powerful, etc.

I found it very interesting recently that the BBC has decided to stop using
the word "terrorism" to report these attacks[1], and I hope that this will
lead to a more nuanced argument over different events.

[1] [http://www.independent.co.uk/voices/comment/the-bbc-has-
just...](http://www.independent.co.uk/voices/comment/the-bbc-has-just-done-
more-to-eradicate-terrorism-than-all-our-wars-since-911-10003927.html)

~~~
Flimm
This only applies to BBC Arabic.

~~~
socksy
Ah, shame.

------
zirkonit
“was unlawful”, “is unlawful” and “will be unlawful”.

It will not stop just because of the court decision. The rule of law is for
mere mortals, and not the alphabet soup of intelligence agencies,
unfortunately.

~~~
peteretep
The UK has a pretty good track record of nobody being above the law.

~~~
arethuza
Lets see what happens to Tony Blair after the Chilcot inquiry report is
published:

[http://www.theguardian.com/commentisfree/2014/may/07/tony-
bl...](http://www.theguardian.com/commentisfree/2014/may/07/tony-blair-war-
crimes-prosecuted-eel-like-boris-johnson)

~~~
peteretep
Can we also just take a moment to consider the monumental stupidity in
accusing Blair of "war crimes" for "crimes against peace" by invoking the
Nuremberg principles?? If it's "crime against peace", then it is - under the
Nuremberg principles - not a war crime.

~~~
arethuza
Personally, I don't see what is stupid about charging him with an appropriate
crime here in the UK (if there is one - IANAL) if he lied to parliament to
start our involvement in a war.

------
lifeisstillgood
So roughly speaking, the US could spy on the UK but when they shared the data
with the UK it was illegal for the UK authorities to "solicit, receive, store
and transmit" that data.

However they previously had said that the new process of sharing data was now
legal. In order to comply with the law GCHQ and the NSA have ... Made public
the fact they are sharing information and how much.

Yeah, please take that one to a higher court and decide not on narrow
technicalities but should we be doing this at all?

I am rather proud of Liberty (who I used to work for (IT and campaigns it's
fun!) - it took a long time to get here.

------
justcommenting
I hope other governments will take notice of this ruling in considering
political asylum for the person who blew the whistle to expose these human
rights violations on a massive scale.

------
ed_blackburn
One presumes that the court doesn't deems there's been a serious criminal
action here. More the status quo isn't legal. I'd like to know if this means
the current actions will stop. When? If the government will fight it. Or
legislate around it? There needs to be an official response from someone will
real authority. It's been judged as illegal...so what next?

------
ommunist
So, like @higherpurpose pointed out - ruling without enforcement is nothing in
this case.

I seriously doubt GCHQ will transform their Cornwall facility into a tourist
attraction like Bletchley Park, after NSA recently invested in it such fancy
amounts of monies.

------
higherpurpose
Such rules will need to be accompanied by _consequences_ for those doing it. A
ruling without enforcement isn't worth much. That said, this is a great, and
perhaps quite surprising ruling, considering it's a secret Court.

~~~
peteretep
It doesn't strike me as particularly surprising. Judges have secrets they
don't want spooks reading, too.

------
rcthompson
"... for seven years." Also probably all the other years.

------
GordonS
And will it stop? ... not a chance

Will anyone be held accountable and brought to justice? ... not a chance

------
Allower
Terrible and completely misleading headline. The court ruled that the SHARING
of surveillance data with NSA was unlawful until this past December. Its
another meaningless verdict that effectively supports the gross invasion of
individual privacy while claiming to oppose it.

------
fauigerzigerk
It is important to fight surveillance in the courts, but as they keep making
ever more draconian and broad surveillance laws it will eventually become
pointless. At the end of the day, this is a political question.

I'm not quite sure what we're dealing with here politically. I wonder whether
this extent of surveillance is simply the will of the poeple or whether
democracy has been subverted by a power hungry security aparatus.

