GCHQ admits to hacking and installing malware. Tribunal says it’s ok.

Douglas Crawford

Douglas Crawford

February 15, 2016

The Investigatory Powers Tribunal (IPT) is a supposedly “independent” judicial body set up by the 2000 Regulation of Investigatory Powers Act (RIPA). Its purpose is to hear public complaints about government surveillance bodies, and is in fact “the only Tribunal to whom complaints about the Intelligence Services can be directed”.


Privacy International is a London-based charity that campaigns against mass surveillance by the government,

The right to privacy is a qualified fundamental human right – meaning that if someone wants to take it away from you, they need to have a damn good reason for doing so.”

Following a complaint by Privacy International to the IPT, NSA-sidekick and spy on everything- and-everyone-junky GCHQ has admitted that it performs “computer network exploitation” (CNE) hacking attacks into computer systems both in the UK and overseas, and that it routinely leaves spyware and other forms of “bug” on machines once they have been hacked (a tactic it refers to as “persistent hacking.”)

In 2013 “persistent hacking” accounted for some 20 percent of GCHQ intelligence reports, with additional data being gathered through to “non-persistent” operations. Until this point, the UK government has refused to confirm or deny that such operations are carried out.

Unfortunately, the 5-man IPT committee (which is appointed by the Queen in accordance with the government’s wishes), ruled (.pdf) that this behaviour is perfectly legal,

The use of CNE by GCHQ, now avowed, has obviously raised a number of serious questions, which we have done our best to resolve in this judgement. Plainly, it again emphasises the requirement for a balance to be drawn between the urgent need of the intelligence agencies to safeguard the public and the protection of an individual’s privacy and/or freedom of expression. We are satisfied that with the new [equipment interference code] and whatever the outcome of parliamentary consideration of the [Investigatory Powers Bill], a proper balance is being struck in regard to the matters we have been asked to consider.

Unsurprisingly, Privacy International is not happy with the ruling,

This case exposed not only these secret practices but also the undemocratic manner in which the Government sought to backdate powers to do this under the radar. Just because the Government magically produces guidelines for hacking should not legitimise this practice.”

Privacy International also flags up the IPT’s decision to green-flag GCHQ’s use of thematic warrants, the same powers that were slammed by the government’s own Intelligence and Security Committee (ISC) report just last week on grounds that they are far too broad in practical application,

The IPT has decided that GCHQ can use ‘thematic warrants’, which means GCHQ can hack an entire class of property or persons, such as ‘all phones in Birmingham’. In doing so, it has upended a longstanding English common law principle that such general warrants are unlawful.”

Privacy International has vowed to take the case to either the Court of Justice of the European Union, or the European Court of Human Rights.

Of course, it is precisely because of such appeals that the UK wants to withdraw from European Convention on Human Rights. Tsk! Pesky human rights…

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