Intelligence sharing between UK and USA was unlawful, Tribunal rules

06 February 2015

GCHQ acted unlawfully in accessing millions of people’s private communications collected in bulk by the USA’s National Security Agency, the Investigatory Powers Tribunal has ruled today.

The Tribunal found that the intelligence-sharing relationship was unlawful prior to December 2014, because rules governing the UK’s access to the NSA’s mass electronic surveillance programmes PRISM and Upstream were secret.

Today’s landmark ruling is the first time the Tribunal – which considers complaints brought against GCHQ, MI5 and MI6 – has found against the intelligence agencies in its 15-year history.

The data-sharing deal between the USA and UK came to light last year during legal proceedings – brought by Liberty, Privacy International and Amnesty International – challenging GCHQ’s surveillance practices in the wake of the Snowden revelations.

In December 2014, the Tribunal held that GCHQ’s access to NSA intelligence was lawful from that time onward because secret policies governing the UK-US relationship were made public during the case.

Liberty disagrees that the limited safeguards revealed are sufficient to make GCHQ’s mass surveillance and intelligence-sharing activities lawful, and will challenge the Tribunal’s December decision at the European Court of Human Rights.

James Welch, Legal Director for Liberty, said: "We now know that, by keeping the public in the dark about their secret dealings with the National Security Agency, GCHQ acted unlawfully and violated our rights. That their activities are now deemed lawful is thanks only to the degree of disclosure Liberty and the other claimants were able to force from our secrecy-obsessed Government.

“But the Intelligence Services retain a largely unfettered power to rifle through millions of people’s private communications – and the Tribunal believes the limited safeguards revealed during last year’s legal proceedings are an adequate protection of our privacy. We disagree, and will be taking our fight to the European Court of Human Rights."

Eric King, Deputy Director of Privacy International, said: "For far too long, intelligence agencies like GCHQ and NSA have acted like they are above the law. Today’s decision confirms to the public what many have said all along — over the past decade, GCHQ and the NSA have been engaged in an illegal mass surveillance sharing program that has affected millions of people around the world.

“We must not allow agencies to continue justifying mass surveillance programs using secret interpretations of secret laws. The world owes Edward Snowden a great debt for blowing the whistle, and today's decision is a vindication of his actions.

“But more work needs to be done. The only reason why the NSA-GCHQ sharing relationship is still legal today is because of a last-minute clean-up effort by Government to release previously secret “arrangements”. That is plainly not enough to fix what remains a massive loophole in the law, and we hope that the European Court decides to rule in favour of privacy rather than unchecked State power."

Contact: Liberty Press Office on 020 7378 3656 or 07973 831128