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United Kingdom: Surveillance Activity by UK Intelligence Agencies Ruled Unlawful

(Dec. 8, 2016) The Investigatory Powers Tribunal ruled on October 17, 2016, that the British Intelligence Agencies unlawfully collected the confidential personal data of British citizens in bulk for 17 years, from 1998 to 2015, when the activities were publicly acknowledged.  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, [2016] UKIPTrib 15_110-CH.) The ruling was declared “one of the most significant indictments of the secret use of the government’s mass surveillance powers since Edward Snowden first began exposing the extent of British and American state digital surveillance of citizens in 2013.”  (Alan Travis, UK Security Agencies Unlawfully Collected Data for 17 Years, Court Rules, GUARDIAN ( Oct. 17, 2016).) The data collected included phone and Internet traffic and communications data. (Id.; Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, supra.)

Particulars of the Case

The Intelligence Services claimed that the rules governing the use of bulk data were not defined in legislation, but the authority of the agencies to collect such information was provided for under the Intelligence Services Act 1994 and the Security Service Act 1989; it used the authority provided by these Acts in accordance with section 94 of the Telecommunications Act 1984.  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs et al., ¶ 6; Intelligence Services Act 1994, c. 13, LEGISLATION.GOV.UK; Security Service Act 1989, c. 5, LEGISLATION.GOV.UK; Telecommunications Act 1984, c. 12, LEGISLATION.GOV.UK;  Intelligence and Security Committee of Parliament, Privacy and Security: A Modern and Transparent Legal Framework, 2014-15, H.C. 1075, at 157.)

The legal challenge focused on the acquisition, use, retention, and disclosure of bulk communications data (BCD) by the security services under directions issued under section 94 of the Telecommunications Act 1984, and the use of this data.  The Tribunal noted the highly secretive nature of the communications data regime, saying “it seems difficult to conclude that the use of BCD was foreseeable by the public when it was not explained to parliament.”  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs et al., ¶ 70.)

The Ruling

The Tribunal found that the collection of the BCD did not comply with article 8 of the European Convention on Human Rights until the issuance of an “official handling arrangement” regulating how the collection, management, and destruction of such data should be managed, after which point the Tribunal held that the regime was compliant.  (Id. ¶ 101.)   The recently enacted Investigatory Powers Act 2016 will serve to place these powers on a clear, statutory basis. (Investigatory Powers Act 2016, c. 25, LEGISLATION.GOV.UK; Clare Feikert-Ahalt, United Kingdom: Controversial Surveillance Act Receives Royal Assent, GLOBAL LEGAL MONITOR (Dec. 8, 2016).)