GCHQ eschews warrants when collecting and viewing data

Stan Ward

Stan Ward

November 10, 2014

In an intriguing development, Britain’s Government Communication Headquarters (GCHQ) has determined that warrants may not be necessary for accessing bulk data collected by GCHQ or its spying partner, the NSA . This secret is revealed in documents submitted to the Investigatory Powers Tribunal, the UK surveillance oversight apparatus.

The government maintains that it can access unanalysed, raw intelligence from an overseas entity without a warrant if absolutely necessary – that is if it were not possible to obtain the information with a warrant. They also contend that this doesn’t run afoul of the Regulation of Investigatory Powers Act (Ripa) which oversees much of the UK’s surveillance activities.

Opponents of the policy say this contradicts the language used July’s Parliament’s Intelligence and Security Committee, which states that a warrant signed by a minister was required whenever GCHQ acquired intelligence from the U.S. Privacy International (IPT). One of several groups challenging the assertions regarding GCHQ and NSA surveillance is worried that legal safeguards defending privacy in the UK are in jeopardy.

“ We now know that data from any call, internet search, or website you visited over the past two years could be stored in GCHQ’s database and analysed at will, all without a warrant to collect it in the first place,” said deputy director Eric King. “It is outrageous that the government thinks that mass surveillance, justified by secret ‘arrangements’ that allow for vast and unrestrained receipt and analysis of foreign intelligence material is lawful.”

Accordingly, it means that, theoretically, British citizens could be subject to warrantless scrutiny by GCHQ. This is because information obtained through these overseas “arrangements” is to be treated as targeted surveillance rather than bulk data gathering which is prohibited by law. Amnesty International and Liberty joined IPT in opposition and agree with calls for reform of surveillance safeguards.

Being under fire, the foreign secretary, Phillip Hammond, told parliament’s Intelligence and Security Committee that he expected ministers who executed warrants would have to justify them in a public forum at some future time.

“I’m sure I can speak for all of my colleagues who sign warrants that we all have, in the back of our minds, that at some point in the future we will-not might, but will- be appearing before some inquiry or tribunal or court accounting for the decisions that we’ve made and essentially accounting for the way we’ve applied the proportionality and necessity tests,” he said.

Adversaries of the practice took Hammond to task for seemingly not understanding the legal structure of the warrants he executed and misinterpreting which information represented targeted surveillance and which embodied bulk data gathering.

Perhaps the words of Amnesty International’s law director, Mike Bochenek, sum up the dilemma: “It’s time for the government to come clean on such crucial issues for people’s privacy as the sharing of communication intercepts with foreign governments. Secret rules are woefully inadequate.” It is worrying that now the public must contend with an apparent widening of the surveillance parameters at a time when prudence calls for a scaling back of powers.

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