THE HEARING into Privacy International’s challenge to the UK security services’ collection of bulk communications and personal data opened in London on Monday, and previously secret documents revealed for the first time the extent of government surveillance into ordinary citizens’ communications.
This follows a ‘dirt dump’ in April which showed that successive home secretaries have allowed this to carry on since at least 2005.The documents provide evidence that MI5, MI6 and GCHQ collected data on every citizen in the UK, including location information, telephone numbers dialled and calls received, as well as metadata regarding time, date and duration of calls.
In addition, the security services are accused by Privacy International of collecting data in bulk via the internet, including browsing history, IP addresses visited, instant messaging data and operating systems.
The bulk collection of personal information even includes physical post data.
The hearing of the Investigatory Powers Tribunal that opened in London on Monday is expected to last until Friday. It will hear how the government and the secret services exploited wide-ranging powers in the Telecommunications Act of 1984, which was passed to smooth the privatisation of BT but contained powers that enabled the government to make wide-ranging demands of all telecoms companies in the UK, not just BT.
The little-debated Article 94 of the Act gave the security services wide-ranging powers of surveillance, eavesdropping and bulk data collection, and could effectively operate in secret with few safeguards and little oversight.
It could also, in theory, have allowed the security services to conduct their own eavesdropping direct on telecoms operators’ networks.
Furthermore, the “expansionary interpretative powers” of surveillance and bulk data collection under the Act were able to continue unchecked, claimed Thomas de la Mare QC of Blackstone Chambers in court, opening the arguments for Privacy International. De la Mare said that these already wide-ranging powers were unlawfully expanded owing to a lack of proper oversight.
Dr Julian Huppert, the former Liberal Democrat MP for Cambridge who campaigned against state surveillance during his five years in office and is now a lecturer at the University of Cambridge, said during a break in proceedings.
“The Telecommunications Act of 1984 was the legislation that privatised BT.
Tucked in right at the end was the notorious Section 94, an incredibly broad power that essentially allows any secretary of state to require any telecommunications company to do, basically, anything – directions of a general character,” he said.
“It’s incredibly powerful and has never really been debated in Parliament. There’s only one mention that I can find in any of the discussions in which the Bill was specifically discussed.
“It’s such powerful legislation that it has to be declared to Parliament every time it is used, unless it’s in the interests of national security or relations with another country, meaning that, while Parliament has never been informed of its use until recently, Section 94 was broadly used to justify an increasing range of intrusive and wide-ranging surveillance activity by the security services.
“It’s so broad and so powerful with no oversight that when one of the commissioners was finally asked to have a look at it, he said he couldn’t be sure of all the instances that it had been used because any secretary of state could give the order and there was no central register of who had or, indeed, when,” said Huppert.
Hence, any eavesdropping or surveillance that might be requested by the US or any other country around the world would be theoretically legal under the broad terms of the Act, without having to seek judicial permission or inform Parliament.
Not only that, but even if an action can be interpreted as in the interests of relations with another country, it can be justified without further authority.
Privacy International argued that this was used to justify the collection of bulk communications data and bulk personal data, which was fed into databases against which MI5, MI6 and GCHQ could execute sophisticated queries.
Hence, instead of using leads and other evidence to justify targeted surveillance and data gathering, the security services increasingly used the data to form the basis for its leads.
Privacy International claimed that this was therefore unlawful, even if the forthcoming Investigatory Powers Bill will effectively return those powers of bulk data collection to the government and security services.
To back up its case, Privacy International released documents this week to demonstrate how far-reaching and intrusive the government’s data gathering has become.
“Today’s disclosures provide a far more detailed and worrying picture of the vast collection of bulk personal datasets and bulk communications data by the intelligence agencies than previously known,” said Millie Graham Wood, legal officer at Privacy International.
“We are at last getting closer to piecing together the genesis of a regime which operated in secret for 18 years without adequate safeguards and oversight.
“As late as 2010 concerns were raised over the public defensibility of existing and planned holdings of bulk personal datasets, and concerns regarding the unavowed nature of these holdings and a perceived absence of checks on their use.
“The new documents also shed light on serious concerns over access to bulk communications data.”
She added that the reports also indicate that the security services used the former home secretary Theresa May, now prime minister, “to bypass the internal safeguards of an operationally independent ‘designated person’ to authorise access to bulk data”.
In other words, the security services were effectively able to do whatever they liked with the bulk-collected personal data…