British Access to NSA Spying Was Illegal, Court Rules

The surprising rebuke could portend further legal challenges in Europe to the U.S. government’s international surveillance programs.

British Prime Minister David Cameron with President Obama walks the West Wing colonnade of the White House on January 15, 2015 in Washington, D.C.
National Journal
Feb. 6, 2015, 3:59 a.m.

A Brit­ish court ruled Fri­day that the United King­dom’s ac­cess to spy­ing data col­lec­ted by the Na­tion­al Se­cur­ity Agency was il­leg­al un­til just two months ago, mark­ing one of the sharpest leg­al re­bukes of gov­ern­ment sur­veil­lance in the post-Snowden era.

The shar­ing ar­range­ment was un­law­ful, the In­vest­ig­at­ory Powers Tribunal found, be­cause it lacked suf­fi­cient trans­par­ency safe­guards and there­fore amoun­ted to a vi­ol­a­tion of hu­man-rights law.

The stun­ning court opin­ion rep­res­ents the first time the U.K. tribunal has sided with a com­plaint raised against Bri­tain’s in­tel­li­gence ser­vices in the tribunal’s 15-year his­tory. It fol­lows a re­jec­tion in Decem­ber of a claim that Bri­tain’s no­tori­ously ag­gress­ive sur­veil­lance powers vi­ol­ated hu­man rights un­der European law.

But that pre­vi­ous opin­ion promp­ted the U.K. gov­ern­ment to dis­close secret rules gov­ern­ing its stor­age and ac­cess to the per­son­al data of Brit­ish cit­izens col­lec­ted by the NSA. Be­fore those dis­clos­ures, the in­form­a­tion-shar­ing agree­ment between the two al­lies was un­law­ful, the court said Fri­day.

The im­me­di­ate rami­fic­a­tions for the U.S. in­tel­li­gence com­munity ap­pear to be only su­per­fi­cial, as the tribunal said the spy­ing ar­range­ment was il­leg­al only up to Decem­ber 2014 and is now ap­pro­pri­ate giv­en the ad­ded trans­par­ency. But the rul­ing could lay the ground­work for fu­ture leg­al chal­lenges from Europe, where sev­er­al na­tions have ex­pressed deep con­cern about the scope of the NSA’s glob­al sur­veil­lance ap­par­at­us.

Two cases pending be­fore the European Court of Hu­man Rights chal­lenge the Brit­ish gov­ern­ment’s close spy­ing part­ner­ship with the U.S. And in May of this year, the United Na­tions will audit the U.S.’s hu­man-rights re­cord un­der what is known as a uni­ver­sal peri­od­ic re­view. That audit — to be led ad­min­is­trat­ively by Bot­swana, Neth­er­lands, and Saudi Ar­a­bia — is ex­pec­ted to in­clude scru­tiny of the NSA’s mass spy­ing.

Fri­day’s opin­ion “is the first time that [a court] sig­ni­fic­antly chipped away at the mass sur­veil­lance re­gime,” said Sarah St. Vin­cent, a hu­man rights and sur­veil­lance leg­al fel­low at the Cen­ter for Demo­cracy & Tech­no­logy. “One of the big takeaways here is if the NSA chooses to en­gage in glob­al sur­veil­lance and part­ners with oth­er coun­tries to do that, it really opens it­self up to scru­tiny by [for­eign] le­gis­lat­ors, courts and hu­man-rights coun­cils.”

The NSA began secretly scoop­ing up massive troves of bulk In­ter­net and phone data and con­tent in 2007 through its PRISM pro­gram, which al­lowed for dir­ect ac­cess to the sys­tems of nine U.S. In­ter­net gi­ants, in­clud­ing Face­book, Google, and Apple. The pro­gram’s ex­ist­ence was first pub­licly ex­posed in 2013 through top-secret gov­ern­ment doc­u­ments leaked by Ed­ward Snowden.

PRISM and an­oth­er pro­gram known as Up­stream were chal­lenged by an al­li­ance of pri­vacy groups, which ar­gued that Brit­ish au­thor­it­ies evaded civil-liberty pro­tec­tions by ac­cess­ing the NSA’s data stock­piles.

Those groups quickly cheered the tribunal’s opin­ion and called it a vin­dic­a­tion of Snowden’s ac­tions.

“For far too long, in­tel­li­gence agen­cies like [Bri­tain’s Gov­ern­ment Com­mu­nic­a­tions Headquar­ters] and NSA have ac­ted like they are above the law,” said Eric King, deputy dir­ect­or of Pri­vacy In­ter­na­tion­al, in a state­ment. “Today’s de­cision con­firms to the pub­lic what many have said all along — over the past dec­ade, GCHQ and the NSA have been en­gaged in an il­leg­al mass-sur­veil­lance shar­ing pro­gram that has af­fected mil­lions of people around the world.”

King con­tin­ued: “We must not al­low agen­cies to con­tin­ue jus­ti­fy­ing mass-sur­veil­lance pro­grams us­ing secret in­ter­pret­a­tions of secret laws. The world owes Ed­ward Snowden a great debt for blow­ing the whistle, and today’s de­cision is a vin­dic­a­tion of his ac­tions.”

Pri­vacy In­ter­na­tion­al and oth­er civil-liber­ties groups said they would now push for cla­ri­fic­a­tion on wheth­er the com­mu­nic­a­tions data stored be­fore Decem­ber 2014 must be de­leted and would ini­ti­ate fur­ther chal­lenges to the Brit­ish gov­ern­ment’s spy­ing agree­ments with the U.S.

The NSA did not im­me­di­ately re­spond to a re­quest for com­ment.

COR­REC­TION: A pre­vi­ous ver­sion of this story mis­stated the name of the Cen­ter for Demo­cracy & Tech­no­logy.

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