UK Tribunal Declares NSA’s Data-Sharing with British Intel Illegal

A British tribunal has ruled that data sharing between the NSA and the UK spy group known as GCHQ was illegal for years. Why? Because it was done in secret.

The Investigatory Powers Tribunal in the UK ruled today (.pdf) that British intelligence services acted unlawfully when they accessed the private communications of millions of people that had been collected by the NSA under its mass-surveillance programs known as PRISM and Upstream. The PRISM program, which began in 2007, allowed the NSA to collect data in bulk from U.S. companies like Yahoo and Google. The Upstream program involved the collection of data from taps placed on undersea cables outside the U.S.

The UK’s use of the NSA data was illegal, the Tribunal found, because it violated the European Convention on Human Rights, which requires that activity that infringes on an individual’s privacy be done both in accordance with the law and only when necessary and proportionate. The law requires that there be a detailed and publicly accessible legal framework in place that explains any privacy safeguards that are in place to help regulate programs that interfere with privacy. This was not the case until December 2014, after documents leaked by NSA whistleblower Edward Snowden exposed the data-sharing programs and a legal challenge to the data-sharing forced the government to disclose the safeguards it was using.

The legal challenge was brought in July 2013 by Privacy International, Liberty, and other human rights and civil liberties groups. These groups argued in their complaint that by obtaining data about UK citizens from the NSA, UK spy agencies had done an end-run around privacy protections that UK citizens have under domestic laws. This forced the UK intelligence community to explain the safeguards it had put in place to govern use of the data.

“We now know that, by keeping the public in the dark about their secret dealings with the NSA, GCHQ acted unlawfully and violated our rights,” said James Welch, legal director for Liberty, in a statement. “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.”

The Guardian notes that this is the first time since the Tribunal was established in 2000 that it has upheld a complaint relating to the UK’s intelligence agencies.

But civil liberties groups say the Tribunal didn’t go far enough. They are appealing an earlier decision by the Tribunal in December of last year, which found that now that the safeguards are public, the program is legal.

“The IPT ruled that, because the government was forced to disclosed these previous secret policies during the case, that the sharing of intelligence between GCHQ and NSA is lawful post December 2014. We obviously disagree with that,” Mike Rispoli, spokesman for Privacy International told WIRED.

He said the groups are also still waiting on a ruling from the Tribunal regarding the “proportionality” of the data collection and sharing. That ruling is expected within a few months.