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Brick Court Chambers, 22 January 2014

UK Government: Lawfulness of Interception, Use & Transfer of Intelligence Data

On 22 January 2014, Jemima Stratford QC and Tim Johnston delivered their wide-ranging legal opinion (32 pages long) concerning the lawfulness of the UK government’s interception, use and transfer of intelligence data to Tom Watson, chair of the All Party Parliamentary Group on Drones. The opinion not only raises serious questions about whether or not the security services are acting within the scope of the law, but also questions whether the law itself (the Regulation of Investigatory Powers Act 2000) is in line with the European Convention on Human Rights.

Based on the recent disclosures of Edward Snowdon, the Chair of the All Party Parliamentary Group on Drones, Tom Watson MP, had asked for advise on the lawfulness of five possible scenarios concerning state surveillance in the UK. The five scenarios are:

  1. Scenario (interception of bulk data):  "The Government Communications Headquarters (‘GCHQ’) have intercepted bulk electronic data sent between two persons located in the UK, but transmitted along fibre-optic cables which run between the UK and the United States. The electronic data arise from internet, email and telephone use;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 1 (at para. 1.a.)]
      

    Legal Opinion:  "Under the Regulation of Investigatory Powers Act 2000 (‘RIPA’), GCHQ is not entitled to intercept mass ‘internal’ contents data: the contents of emails or phone calls between two individuals located in the British Islands. GCHQ is entitled to intercept bulk ‘external’ contents data: the contents of communications between the British Islands and elsewhere. GCHQ is also entitled to intercept bulk communications data (sometimes termed ‘metadata’). The interception of that bulk data, although lawful for the purposes of RIPA, is a disproportionate interference with the Article 8 rights of UK citizens."
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 3 (at para. 7.a.)]
      

      
  2. Scenario (analysis of bulk data):  "GCHQ have retained that data and submitted it to analysis including ‘pattern of life’ analysis. That analysis has been applied to identified terror/criminal suspects and also to individuals who are not suspected of wrongdoing;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 1 (at para. 1.b.)]
      

    Legal Opinion:  "GCHQ is entitled to submit the mass data that they collect to pattern of life analysis, under the statutory framework. We consider that the current framework for the retention, use and destruction of communications data is inadequate and likely to be unlawful. The RIPA framework concerning external contents data is also probably unlawful;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 3 (at para. 7.b.)]
      

      
  3. Scenario (data transfer to foreign secret service):  "GCHQ have permitted the National Security Agency (‘NSA’) of the US to access and retain that data;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 1 (at para. 1.c.)]
      

    Legal Opinion:  "GCHQ is entitled to transfer bulk data to the NSA, under RIPA, where the Secretary of State is satisfied that the mechanisms for storing and destroying that data in the receiver country are suitable. A transfer of intercept data is a fresh interference with the individual’s Article 8 rights. We consider that the statutory framework provides insufficient protections to the individuals concerned. The government could at least ameliorate that situation by agreeing and publishing a Memorandum of Understanding or other bilateral agreement on data transfer specifying how the data should be stored, when they should be destroyed, and the purposes for which the data may be used under UK law;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 3 (at para. 7.c.)]
      

      
  4. Scenario (data availability for foreign intelligence service):  "The NSA share data with the CIA so that it is available for targeting drone strikes;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 1 (at para. 1.d.)]
      

    Legal Opinion:  "If the UK government knows that it is transferring data that may be used for drone strikes against non-combatants (for example in Yemen or Pakistan), that transfer is probably unlawful. An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility. However, it may be that the current legislative framework imposes no obligation on the UK government to investigate or prevent its agents from becoming accessories to murder in this manner. If that is the case, we consider that outcome to be contrary to the principles of public policy and good governance;"
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 3 (at para. 7.d.)]
      

      
  5. Scenario (UK communications hub for data transfer to and from the US):  "US forces operate from a UK base, under the NATO Status of Forces Agreement 1951 (for example RAF Croughton). That UK base is used as a communications hub to transfer data both to and from the US. Some of the data obtained overseas and transferred to the US have been obtained in contravention of international law. Some of the material transferred from the US via the UK includes data, instructions and orders to facilitate drone strikes."
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 1 (at para. 1.e.)]
      

    Legal Opinion:  "The UK government is entitled to press charges against US servicemen operating from NATO bases on UK soil. If data that have been unlawfully obtained or used (for the purposes of British law) are transferred via a UK NATO base, the UK government may prosecute any US serviceman involved in that transfer. It appears, in practical terms, that the UK government may not always know what takes place on RAF bases controlled by NATO forces. As a result, that power to prosecute may be theoretical."
    ["In the Matter of State Surveillance", Advice, 22 January 2014, p. 4 (at para. 7.e.)]

(ga)

Jemima Stratford/Tim Johnston, "In the Matter of State Surveillance", Advice, Brick Court Chambers, 22 January 2014

Verlag Dr. Otto Schmidt vom 04.02.2014 14:14

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