Latest UK Judgment on Post-Snowden Surveillance

On June 22, the UK’s Investigatory Powers Tribunal (IPT) gave its latest judgment in the post-Snowden surveillance litigation brought by several NGOs against the UK Government and the various Security Services (collectively “the Respondents”).

Before I summarize that judgment, here is a recap of the relevant background:

• The first hearing in these cases started back in July 2014 (see my earlier post here).
• The claims relate to the Respondents’ use of information obtained from the Prism and Upstream programs and to the operation by the Respondents of warrants obtained under section 8(4) of the Regulation of Investigatory Powers Act 2000 (RIPA). The Claimants alleged that the Security Services had violated Articles 8 and 10 of the European Convention on Human Rights (ECHR), i.e. the rights to privacy and freedom of expression.
• The relief which they sought included the following: (1) a declaration that the Foreign Secretary and Home Secretary had failed to ensure that there was an Article 8 and 10-compliant 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; (2) a declaration that the soliciting, receipt, storage, and transmission of such information by the Security Services was unlawful; and (3) an order that the Security Services would not solicit, receive, store, or transmit such information until these activities are governed by an Article 8 and 10-compliant regime and will destroy any material unlawfully obtained.
• The IPT has already given two judgments — one dated December 5, 2014 and the other dated February 6, 2015.
• The December 2014 judgment runs to 77 pages. In it the IPT: (a) explained that in order to resolve the issues before it, they had assumed that the relevant allegations, derived from Snowden’s leaks, were true (since the Respondents did not admit the alleged conduct); (b) summarized certain disclosure given by the Respondents in the course of the hearing which related to the way in which information and surveillance requests were made by the UK Government to other States; and (c) explained that, in addition to the public hearing, it had held a closed hearing, from which the Claimants and their counsel were excluded, in order to consider the “below the waterline” arrangements which regulated the practice and conduct of the Intelligence Services.
• By the December 2014 judgment the IPT ultimately rejected the claims, holding that, “[s]ave in one possible (and to date hypothetical) respect,” the current regime is lawful and human rights compliant. It concluded (paras. 157-58):

The legislation in force and the safeguards to which we have referred are intended to recognise the importance of, and the need to maintain, an acceptable balance between (a) the interests of the State to acquire information for the vital purposes of national security and the protection of its citizens from terrorism and other serious crime, and (b) the vital interests of all citizens to know that the law makes effective provision to safeguard their rights to privacy and freedom of expression, together with appropriate and effective limits upon what the State does with that information.Technology in the surveillance field appears to be advancing at break-neck speed. This has given rise to submissions that the UK legislation has failed to keep abreast of the consequences of these advances, and is ill fitted to do so; and that in any event Parliament has failed to provide safeguards adequate to meet these developments. All this inevitably creates considerable tension between the competing interests, and the ‘Snowden revelations’ in particular have led to the impression voiced in some quarters that the law in some way permits the Intelligence Services carte blanche to do what they will. We are satisfied that this is not the case.

• The “possible exception” is described in paragraph 53 of the December 2014 judgment and was identified as a result of the Respondents’ disclosure. That disclosure showed that any requests made by the Respondents to (for example) the US authorities pursuant to Prism or Upstream would be subjected to RIPA (which the IPT upheld as being lawful and human rights compliant) except in relation to a “1(b) request”. The Respondents defined a “1(b) request” as one which was made in the absence of the relevant statutory warrant but where (1) this did not “amount to a deliberate circumvention” of RIPA or otherwise contravene the Padfield principle (viz., a public body must act so as to promote the purpose for which a statutory power was conferred upon it), and (2) “it is necessary and proportionate for the Intelligence Services to obtain those communications.” The Respondents stated that no such request had yet been made and that it would “only be made in exceptional circumstances.” The IPT directed the parties to serve written submissions on the 1(b) request issue: “whether by virtue of the facts and matter set out in paragraph 53 of the [December judgment] there is a contravention of Articles 8 or 10 ECHR.”
• The IPT also directed the parties to serve written submissions on the position pre-disclosure: “whether by virtue of the fact that any of the matters now disclosed in the [December judgment] were not previously disclosed, there had prior thereto been a contravention of Articles 8 or 10 ECHR.”
• In the February 2015 judgment the IPT addressed both of these issues.
• In relation to the position pre-disclosure the IPT found for the Claimants and declared, “that prior to the disclosures made and referred to in the [December 2014 judgment], the regime governing the soliciting, receiving, storing and transmitting by the 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 and 10 ECHR but now complies” (para. 23).
• In relation to the 1(b) request issue the Respondents gave further disclosure explaining the safeguards that would apply if such a request were to be made. The IPT was satisfied that these meant that post-disclosure the regime complied with Articles 8 and 10. It therefore amended its paragraph 23 declaration to include “and this judgment” after the reference to the December 2014 judgment.

By its June 22 judgment the IPT addresses the remaining outstanding matters (which it flagged at the end of its December 2014 judgment): (1) whether, before November 2014, the Claimants’ private communications, which had been obtained by the US pursuant to Prism or Upstream, were solicited, received, stored, and/or transmitted by the UK authorities in contravention of Articles 8 and 10; and (2) whether the Claimants’ communications were intercepted pursuant to RIPA and viewed, stored, and/or transmitted so as to amount to unlawful conduct or a violation of Articles 8 and 10.

The IPT only made determinations in favour of two Claimants, the Egyptian Initiative for Personal Rights (EIPR) and the Legal Resources Centre (LRC). In order to ensure that the IPT did not disclose information “to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security … or the continued discharge of the functions of any of the intelligence services,” it provided only the “essential elements” of its determinations. Thus, it explained that EIPR’s emails had been retained for longer than was permitted and, amongst other relief, declared that EIPR’s Article 8 rights had been breached and ordered GCHQ to destroy that material. EIPR was not awarded any compensation. Similarly, no compensation was given to the LRC; the IPT declared that its Article 8 rights had also been breached because although the interception of its emails had been lawful, GCHQ had failed to follow the procedure for the selection of the communications for examination. It concluded its judgment by expressing the concern that steps should be taken to ensure that these breaches of procedure do not occur again and noting that it would be making a closed report to the Prime Minister.

The June 22 judgment may not be the last that we can expect from the IPT regarding this litigation (since the LRC is seeking further information from the IPT). For now, the result seems to be a Pyrrhic victory for the Claimants because:

• The bottom line is that (with the disclosures made by the Respondents) the IPT has sanctioned, as lawful and human rights-compliant, the ongoing surveillance of NGOs.
• Although the EIPR and the LRC obtained determinations in their favor, there is no resolution of the wider questions thrown up by the case. In particular, as Rachel Logan, the UK legal programme director for Amnesty International has been reported as commenting, “[This] raises the wider question as to why the UK intelligence services were intercepting the communications of these two highly regarded human rights NGOs at all.”
• As for the remaining Claimants: they do not even know whether they were, in fact, under surveillance (tempting as it might be to assume that to be so). This is since — unless the IPT finds that surveillance was unlawful — it does not reveal whether a particular claimant was under surveillance or not (see section 68(4) RIPA and the IPT’s website here).

Regardless of whether there might be another IPT judgment, this is not the end of the road for these Claimants — they have already lodged an application with the European Court of Human Rights in relation to the December 2014 and February 2015 judgments.