Tag: RIPA

‘Plebgate’ and the protection of journalistic sources

Posted on | by Robin Hopkins

It has been a mixed day for the media’s entanglements with the judiciary. Chris Knight posted earlier today about the unhappy outcome for Mirror Group Newspapers before the Court of Appeal in the Gulati privacy damages litigation arising from phone-hacking.

News Group Newspapers, however – together with Sun journalist claims Tom Newton Dunn, Anthony France and Craig Woodehouse – had a happier outcome in another case about telephone privacy, though this time with the media as victim rather than perpetrator of the interference.

Judgment IPT/14/176/H saw the claimants succeed in part in their claim against the Metropolitan Police in the Investigatory Powers Tribunal (‘IPT’). Continue reading →

Above and below the waterline: IPT finds that Prism and Tempora are lawful

Posted on | by Robin Hopkins

The now famous revelations by US whistleblower Edward Snowden focused on US government programmes under which vast amounts of data about individuals’ internet usage and communications were said to have been gathered. The allegations extended beyond the US: the UK government and security agencies, for example, were also said to be involved in such activity.

Unsurprisingly, concerns were raised about the privacy implications of such activity – in particular, whether it complied with individuals’ rights under the European Convention on Human Rights (privacy under Article 8; freedom of expression under Article 10).

The litigation before the Investigatory Powers Tribunal

Litigation was commenced in the UK by Privacy International, Liberty, Amnesty International and others. The cases were heard by a five-member panel of the Investigatory Powers Tribunal (presided over by Mr Justice Burton) in July of this year. The IPT gave judgment ([2014] UKIPTrib 13_77-H) today.

In a nutshell, it found that the particular information-gathering activities it considered – carried out in particular by GCHQ and the Security Service – are lawful.

Note the tense: they are lawful. The IPT has not determined whether or not they were lawful in the past. The key difference is this: an essential element of lawfulness is whether the applicable legal regime under which such activity is conducted is sufficiently accessible (i.e. is it available and understandable to people?). That turns in part on what the public is told about how the regime operates. During the course of this litigation, the public has been given (by means of the IPT’s open judgment) considerably more detail in this regard. This, says the IPT, certainly makes the regime lawful on a prospective basis. The IPT has not determined whether, prior to these supplementary explanations, the ‘in accordance with the law’ requirement was satisfied.

With its forward-looking, self-referential approach, this judgment is unusual. It is also unusual in that it proceeded to test the legality of the regimes largely by references to assumed rather than established facts about the Prism and Tempora activities. This is because not much about those activities has been publicly confirmed, due to the ‘neither confirm nor deny’ principle which is intrinsic to intelligence and security activity.

Prism

The first issue assessed by reference to assumed facts was called the “Prism” issue: this was about the collection/interception by US authorities of data about individuals’ internet communications and the assumed sharing of such data with UK authorities, who could then retain and use it. Would this arrangement be lawful under Article 8(2) ECHR? In particular, was it “in accordance with the law”, which in essence means did it have a basis in law and was it sufficiently accessible and foreseeable to the potentially affected individuals? (These are the so-called Weber requirements, from Weber and Saravia v Germany [2008] 46 EHRR SE5).

When it comes to intelligence, accessibility and foreseeability are difficult to achieve without giving the game away to a self-defeating extent. The IPT recognised that the Weber principles need tweaking in this context. The following ‘nearly-Weber’ principles were applied as the decisive tests for ‘in accordance with the law’ in this context:

“(i) there must not be an unfettered discretion for executive action. There must be controls on the arbitrariness of that action.

(ii) the nature of the rules must be clear and the ambit of them must be in the public domain so far as possible, an “adequate indication” given (Malone v UK [1985] 7 EHRR 14 at paragraph 67), so that the existence of interference with privacy may in general terms be foreseeable.”

Those tests will be met if:

“(i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it.

(ii) They are subject to proper oversight.”

On the Prism issue, the IPT found that those tests are met. The basis in law comes from the Security Service Act 1989, Intelligence Services Act 1994 and the Counter-Terrorism Act 2008. Additionally, the Data Protection Act 1998 DPA, the Official Secrets Act 1989 and the Human Rights Act 1998 restrain the use of data of the sort at issue here. Taken together, there are sufficient and specific statutory limits on the information that each of the Intelligence Services can obtain, and on the information that each can disclose.

In practical terms, there are adequate arrangements in place to safeguard against arbitrary of unfettered use of individuals’ data. These included the “arrangements below the waterline” (i.e. which are not publicly explained) which the Tribunal was asked to – and did – take into account.

Oversight of this regime comes through Parliament’s Intelligence and Security Committee and the Interception of Communications Commissioner.

Further, these arrangements are “sufficiently signposted by virtue of the statutory framework … and the statements of the ISC and the Commissioner… and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment”.

Thus, in part thanks to closed evidence of the “below the waterline” arrangements and open disclosure of more detail about those arrangements, the Prism programme (on the assumed facts before the IPT) is lawful, i.e. it is a justified intrusion into Article 8 ECHR rights.

The alleged Tempora interception operation

Unlike the Prism programme, the second matter scrutinised by the IPT – the alleged Tempora programme – involved the interception of communications by UK authorities. Here, in contrast to Prism (where the interception is done by someone else), the Regulation of Investigatory Powers Act 2000 is pivotal.

This works on a system of warrants for interception. The warrants are issued under section 8 of RIPA (supplemented by sections 15 and 16) by the Secretary of State, rather than by a member of the judiciary. The regime is governed by the Interception of Communications Code of Practice.

The issue for the IPT was: is this warrant system (specifically, the section 8(4) provision for ‘certified’ warrants) in accordance with the law, for ECHR purposes?

This has previously been considered by the IPT in the British Irish Rights Watch case in 2004. Its answer was that the regime was in accordance with the law. The IPT in the present cases re-examined the issue and took the same view. It rejected a number of criticisms of the certified warrant regime, including:

The absence of a tightly focused, ‘targeting’ approach at the initial stages of information-gathering is acceptable and inevitable.

There is no call “for search words to be included in an application for a warrant or in the warrant itself. It seems to us that this would unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic”.

There is also “no basis for objection by virtue of the absence for judicial pre-authorisation of a warrant. The United Kingdom system is for the approval by the highest level of government, namely by the Secretary of State”.

Further, “it is not necessary that the precise details of all the safeguards should be published, or contained in legislation, delegated or otherwise”.

The overall assessment was very similar as for Prism: in light of the statutory regime, the oversight mechanisms, the open and closed evidence of the arrangements (above and below the “waterline”) and additional disclosures by the Respondents, the regime for gathering, retaining and using intercepted data was in accordance with the law – both as to Article 8 and Article 10 ECHR.

Conclusion

This judgment is good news for the UK Government and the security bodies, who will no doubt welcome the IPT’s sympathetic approach to the practical exigencies of effective intelligence operations in the digital age. These paragraphs encapsulate the complaints and the IPT’s views:

“158. Technology in the surveillance field appears to be advancing at break-neck speed. This has given rise to submissions that the UK legislation has failed to keep abreast of the consequences of these advances, and is ill fitted to do so; and that in any event Parliament has failed to provide safeguards adequate to meet these developments. All this inevitably creates considerable tension between the competing interests, and the ‘Snowden revelations’ in particular have led to the impression voiced in some quarters that the law in some way permits the Intelligence Services carte blanche to do what they will. We are satisfied that this is not the case.

159. We can be satisfied that, as addressed and disclosed in this judgment, in this sensitive field of national security, in relation to the areas addressed in this case, the law gives individuals an adequate indication as to the circumstances in which and the conditions upon which the Intelligence Services are entitled to resort to interception, or to make use of intercept.”

11KBW’s Ben Hooper and Julian Milford appeared for the Respondents.

Robin Hopkins @hopkinsrobin

Surveillance powers to be kept alive via DRIP

Posted on | by Robin Hopkins

The legal framework underpinning state surveillance of individuals’ private communications is in turmoil, and it is not all Edward Snowden’s fault. As I write this post, two hugely important developments are afoot.

Prism/Tempora

The first is the challenge by Privacy International and others to the Prism/Tempora surveillance programmes implemented by GCHQ and the security agencies. Today is day 2 of the 5-day hearing before the Investigatory Powers Tribunal. To a large extent, this turmoil was unleashed by Snowden.

DRIP – the background

The second strand of the turmoil is thanks to Digital Rights Ireland and others, whose challenge to the EU’s Data Retention Directive 2006/24 was upheld by the CJEU in April of this year. That Directive provided for traffic and location data (rather than content-related information) about individuals’ online activity to be retained by communications providers for a period of 6-24 months and made available to policing and security bodies. In the UK, that Directive was implemented via the Data Retention (EC Directive) Regulations 2009, which mandated retention of communications data for 12 months.

In Digital Rights Ireland, the CJEU held the Directive to be invalid on the grounds of incompatibility with the privacy rights enshrined under the EU’s Charter of Fundamental Rights. Strictly speaking, the CJEU’s judgment (on a preliminary ruling) then needed to be applied by the referring courts, but in reality the foundation of the UK’s law fell away with the Digital Rights Ireland judgment. The government has, however, decided that it needs to maintain the status quo in terms of the legal powers and obligations which were rooted in the invalid Directive.

On 10 July 2014, the Home Secretary made a statement announcing that this gap in legal powers was to be plugged on a limited-term basis. A Data Retention and Investigatory Powers (DRIP) Bill would be put before Parliament, together with a draft set of regulations to be made under the envisaged Act. If passed, these would remain in place until the end of 2016, by which time longer-term solutions could be considered. Ms May said this would:

“…ensure, for now at least, that the police and other law enforcement agencies can investigate some of the criminality that is planned and takes place online. Without this legislation, we face the very prospect of losing access to this data overnight, with the consequence that police investigations will suddenly go dark and criminals will escape justice. We cannot allow this to happen.”

Today, amid the ministerial reshuffle and shortly before the summer recess, the Commons is debating DRIP on an emergency basis.

Understandably, there has been much consternation about the extremely limited time allotted for MPs to debate a Bill of such enormous significance for privacy rights (I entitled my post on the Digital Rights Ireland case “Interfering with the fundamental rights of practically the entire European population”, which is a near-verbatim quote from the judgment).

DRIP – the data retention elements

The Bill is short. A very useful summary can be found in the Standard Note from the House of Commons Library (authored by Philippa Ward).

Clause 1 provides power for the Secretary of State to issue a data retention notice on a telecommunications services provider, requiring them to retain certain data types (limited to those set out in the Schedule to the 2009 Regulations) for up to 12 months. There is a safeguard that the Secretary of State must consider whether it is “necessary and proportionate” to give the notice for one or more of the purposes set out in s22(2) of RIPA.

Clause 2 then provides the relevant definitions.

The Draft Regulations explain the process in more detail. Note in particular regulation 5 (the matters the Secretary of State must consider before giving a notice) and regulation 9 (which provides for oversight by the Information Commissioner of the requirements relating to integrity, security and destruction of retained data).

DRIP – the RIPA elements

DRIP is also being used to clarify (says the government) or extend (say some critics) RIPA 2000. In this respect, as commentators such as David Allen Green have pointed out, it is not clear why the emergency legislation route is necessary.

Again, to borrow the nutshells from the House of Commons Library’s Standard Note:

Clause 3 amends s5 of RIPA regarding the Secretary of State’s power to issue interception warrants on the grounds of economic well-being.

Clause 4 aims to clarify the extra-territorial reach of RIPA in in relation to both interception and communications data by adding specific provisions. This confirms that requests for interception and communications data to overseas companies that are providing communications services within the UK are subject to the legislation.

Clause 5 clarifies the definition of “telecommunications service” in RIPA to ensure that internet-based services, such as webmail, are included in the definition.

Criticism

The Labour front bench is supporting the Coalition. A number of MPs, including David Davis and Tom Watson, have been vociferous in their opposition (see for example the proposed amendments tabled by Watson and others here). So too have numerous academics and commentators. I won’t try to link to all of them here (as there are too many). Nor can I link to a thorough argument in defence of DRIP (as I have not been able to find one). For present purposes, an excellent forensic analysis comes from Graham Smith at Cyberleagle.

I don’t seek to duplicate that analysis. It is, however, worth remembering this: the crux of the CJEU’s judgment was that the Directive authorised such vast privacy intrusions that stringent safeguards were required to render it proportionate. In broad terms, that proportionately problem can be fixed in two ways: reduce the extent of the privacy intrusions and/or introduce much better safeguards. DRIP does not seek to do the former. The issue is whether it offers sufficient safeguards for achieving an acceptable balance between security and privacy.

MPs will consider that today and Peers later this week. Who knows? – courts may even be asked for their views in due course.

Robin Hopkins @hopkinsrobin

What does ‘surveillance’ mean?

Posted on | by Robin Hopkins

A five-member panel of the Investigatory Powers Tribunal last week issued its decision in Re: a Complaint of Surveillance (case no: IPT/A1/2013). The decision was on a preliminary point arising from this sort of factual scenario: suppose you voluntarily participate in an interview with policing/investigatory authorities but, unbeknownst to you, the investigators use a device to record that interview? Would this act of recording constitute ‘surveillance’ for the purposes of the Regulation of Investigatory Powers Act 2000 (RIPA), such that it requires authorisation (assuming it to be ‘directed’) was required? Would it engage your rights under Article 8 ECHR?

There are arguments both ways. As the IPT observed, “the wording in Part II [of RIPA] presents some difficulties for the reasonable reader”. The official guidance publications answer the above questions differently: the Office of the Surveillance Commissioners answers ‘yes’, but the Home Office answers ‘no’.

The IPT has agreed with the Home Office’s interpretation.

By s. 48(2) RIPA, Parliament has chosen not to define ‘surveillance’ as such, but to deem that surveillance shall be construed so as to include certain activities. Those deeming examples extend or amplify the ordinary meaning of ‘surveillance’, the essence of which is that person who is subject to surveillance is intended to remain unaware of those means and does not engage with the person secretly gathering the intelligence. In the IPT’s view, “the notion of a ‘covert interview’ requiring RIPA authorisation is one that is difficult to grasp. An interview is by its very nature an overt intelligence gathering operation in which the interviewee actively participates, even if only to the extent of refusing to answer questions”. Such interviews cannot constitute ‘surveillance’ and Article 8 rights are not engaged here.

It follows that the recording of the interview is not observing or listening to “in the course of surveillance” within the meaning of s. 48(2)(b) of RIPA, and no authorisation is required. The making of the recording only involves the recording process itself. It does not involve a separate act of “observing or listening to” the person being interviewed.

The IPT expressly rejected the contention that, regardless of the purpose, nature or circumstances of the intelligence-gathering activities in question, every act of “observing or listening to persons”, their conversations or communications is automatically treated as surveillance.

Robin Hopkins (@hopkinsrobin)

Prism and Tempora: Privacy International commences legal action

Posted on | by Robin Hopkins

Panopticon has reported in recent weeks that, following the Edward Snowden/Prism disclosures, Liberty has brought legal proceedings against the UK’s security bodies. This week, Privacy International has announced that it too is bringing a claim in the Investigatory Powers Tribunal – concerning both the Prism and Tempora programmes. It summarises its claim in these terms:

“Firstly, for the failure to have a publicly accessible legal framework in which communications data of those located in the UK is accessed after obtained and passed on by the US National Security Agency through the Prism programme.  Secondly, for the indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables through the Tempora programme.”

Legal complaints on Prism-related transfers have been made elsewhere on data protection grounds also. A group of students who are members of a group called Europe vs. Facebook have filed complaints to the data protection authorities in Ireland (against Facebook and Apple), Luxembourg (against Skype and Microsoft) and Germany (against Yahoo).

European authorities have expressed concerns on these issues in their own right. For example, the Vice President of the European Commission, Viviane Reding, has written to the British Foreign Secretary, William Hague, about the Tempora programme, and has directed similar concerns at the US (including in a piece in the New York Times). The European Parliament has also announced that a panel of its Committee on Civil Liberties, Justice and Home Affairs will be convened to investigate the Prism-related surveillance of EU citizens. It says the panel will report by the end of 2013.

In terms of push-back within the US, it has been reported that Texas has introduced a bill strengthening the requirements for warrants to be obtained before any emails (as opposed to merely unread ones) can be disclosed to state and local law enforcement agencies.

Further complaints, litigation and potential legal challenges will doubtless arise concerning Prism, Tempora and the like.

Robin Hopkins

RIPA: hacked voicemails and undercover officers

Posted on | by Robin Hopkins

The Regulation of Investigatory Powers Act 2000 (RIPA) has featured prominently in the news in recent weeks, both as regards undercover police officers/“covert human intelligence sources” and as regards the phone-hacking scandal.

Hacked voicemails

This morning, the Court of Appeal gave judgment in Edmonson, Weatherup, Brooks, Coulson & Kuttner v R [2013] EWCA Crim 1026. As is well known, the appellants face charges arising out of the News of the World phone-hacking controversy – specifically, conspiring unlawfully to intercept communications in the course of their transmission without lawful authority contrary to section 1(1) of the Criminal Law Act 1977.

The communications in question are voicemails. Under section 1(1)(b) of RIPA, it is an offence intentionally to intercept, without lawful authority, any communication in the course of its transmission by means of a public telecommunications system (my emphasis). The central provision is section 2(7) of RIPA:

“(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The appellants applied to have the charges dismissed on the grounds that the words “in the course of transmission” in section 1(1) of RIPA do not extend to voicemail messages once they have been listened to (by the intended recipient, that is, rather than by any alleged phone-hacker). They argued that the ordinary meaning of “transmission” is conveyance from one person or place to another and that section 2(7) is intended to extend the concept of “transmission” only so as to cover periods of transient storage that arising through modern phone and email usage, and when the intended recipient is not immediately available. Thus, once the message has been listened to, it can no longer be “in the course of transmission”.

The point had previously been decided against the appellant. The Court of Appeal (the Lord Chief Justice, Lloyd Jones LJ, Openshaw J) took a similar view. While it accepted that the application of section 2(7) may differ as between, for example, voicemails and emails, “there is nothing in the language of the statute to indicate that section 2(7) should be read in such a limited way” (as the appellants had contended) (paragraph 23). Further, the words “has been transmitted” in section 2(7) “make entirely clear that the course of transmission may continue notwithstanding that the voicemail message has already been received and read by the intended recipient” (paragraph 26).

The same conclusion was reached by focusing on the mischief which section 2(7) is intended to remedy, “namely unauthorized access to communications, whether oral or text, whilst they remain on the system by which they were transmitted. As the prosecution submits, unlawful access and intrusion is not somehow less objectionable because the message has been read or listened to by the intended recipient before the unauthorized access takes place” (paragraph 28, quoting an earlier judgment in this matter from Fulford LJ).

The Court accepted that section 2(7) went further than the prohibitions imposed by Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector (which RIPA sought to implement) and its successor, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (which postdates RIPA).  The Court found, however, that the Directives imposed minimum harmonisation; Parliament was entitled to go further and to set higher standards for the protection of privacy of electronic communications, provided that those additional obligations are compatible with EU law (paragraph 42).

Both the Data Protection Act 1998 and the Computer Misuse Act 1990 also raised their heads. The DPA, for example, contains a public interest defence which is not available under RIPA. It was argued that this risked creation parallel offences without parallel defences, violating the principle of legal certainty. This submission too was rejected (paragraphs 44-45).

The cases will now proceed to trial, apparently to commence in September.

Undercover officers

As regards the activities of undercover police officers, the major issue this week has concerned the alleged smearing of the family and friends of Stephen Lawrence: see for example The Guardian’s Q&A session with undercover-officer-turned-whistleblower Peter Francis.

The other major ongoing case regarding a former undercover officer concerns Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, J and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources.

Unlike with the phone-hacking cases, it is not clear when this case will resume before the Court/Tribunal.

Robin Hopkins