Home > All, Politics, Security Issues > Privacy International’s new complaint against GCHQ is like pissing in the wind

Privacy International’s new complaint against GCHQ is like pissing in the wind

GCHQ

GCHQ

Fresh from its success against HMRC, Privacy International (PI) is now taking on GCHQ. It announced Tuesday that it has “filed a legal complaint demanding an end to the unlawful hacking being carried out by GCHQ which, in partnership with the NSA, is infecting potentially millions of computer and mobile devices around the world with malicious software that gives them the ability to sweep up reams of content, switch on users’ microphones or cameras, listen to their phone calls and track their locations.”

This complaint, however, will be like pissing in the wind.

Since it is a complaint against the intelligence services it has to be raised with the UK’s Investigatory Powers Tribunal. Now, if you think my comment is a bit OTT, I invite you to consider the assessment of the Home Affairs Committee – Seventeenth Report: Counter-terrorism, published just last month. In particular, look at Section 6: Oversight of the security and intelligence agencies. It says,

…we wish to take this opportunity to note that in its latest annual report, the Investigatory Powers Tribunal has failed to disclose how many cases were decided in favour of the complainant. The 2010 (inaugural) annual report of the Investigatory Powers Tribunal was a forty page document. The 2011 report was a three page statistical release. The 2012 annual report was a two paragraph new story on its website… The statistics which have been produced by the Investigatory Powers Tribunal indicate that out of 1468 [complaints] the Tribunal has received it has decided in the favour of ten complainants. None of the ten successful complaints were made against the security service.

So only 0.68% of complaints to the Investigatory Powers Tribunal are upheld – and none of those relate to complaints against the intelligence services despite 30% of the 2010 complaints being leveled against an intelligence agency.

Sir Anthony May

Sir Anthony May

There are two other officers also responsible for oversight of GCHQ: the Interception of Communications Commissioner (Sir Anthony May), and the Intelligence Services Commissioner (Sir Mark Waller). Also last month, on the same day that the ECJ ruled the European Data Retention Directive to be invalid, the Interception Commissioner’s annual report was laid before parliament. He considered at some lengths GCHQ, RIPA and the Snowden files.

It is ultimately a matter of policy whether the interception agencies, duly authorised under RIPA 2000 Part I Chapter I and subject to its safeguards, should continue to be enabled to intercept external communications, so far as they are lawfully and technically able, in order to assist their functions of protecting the nation and its citizens from terrorist attack, cyber attack, serious crime and so forth. If the policy answer to that question is yes (which I personally should have thought was obvious)…
2013 Annual Report of the Interception of Communications Commissioner

He is, then, personally predisposed towards GCHQ’s international hacking habits.

His report also asks, “Do the interception agencies misuse their powers under RIPA 2000 Part I
Chapter I to engage in random mass intrusion into the private affairs of law abiding UK citizens who have no actual or reasonably suspected involvement in terrorism or serious crime?”

And it answers, “The interception agencies do not engage in indiscriminate random mass intrusion by misusing their powers under RIPA 2000 Part I.” Now, since the Tribunal will undoubtedly query the commissioner on whether Privacy International’s complaint is valid, we can begin to see that it’s not going to get very far.

Sir Mark Waller source: The Guardian

Sir Mark Waller
source: The Guardian

But let it not be said that the overlookers providing oversight on GCHQ are not sufficiently thorough in their overlooking. This is part of the Intelligence Services Commissioner’s testimony, verbatim, to the Home Affairs committee:

Chair: You went down to GCHQ.

Sir Mark Waller: Yes.

Chair: You went to see who there?

Sir Mark Waller: I saw the second head of the agency, in fact.

Chair: How did you satisfy yourself? It seems, from your comment, that what you did was you had a discussion with them, you heard what they had to say and you have accepted what they had to say.

Sir Mark Waller: Certainly.

Chair: Is that it?

Sir Mark Waller: Certainly.

Chair: Just a discussion?

Sir Mark Waller: Certainly.

Chair: Nothing else?

Sir Mark Waller: Certainly.

It’s not as if Privacy International is demanding very much. It is just seeking from the Investigatory Powers Tribunal:

A declaration that the matters set out in the complaint are well founded and GCHQ’s conduct has been unlawful, an injunction restraining any similar future conduct, an order requiring the destruction of any information unlawfully obtained and a public judgment.

But to say that Privacy International’s claim against GCHQ in face of these guardians of the public good is just pissing in the wind is probably an understatement – pissing into a force 8 gale is more accurate. It’s never going to happen.

But there is just one glimmer. Once PI has exhausted all national options it should be able to take the matter to the European Court – the same court that recently struck down the Data Retention Directive and has just ruled against Google.

Categories: All, Politics, Security Issues
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