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the US spy agency NSA and their
n 6 Februar y 2015 the 1. Publicity, not privacy UK counterpart GCHQ, therefore
Investigator y Powers such sharing is unlawful. A second
Tr i b u n a l ( I P T ) r u l e d Historically, the common law did ground of challenge concerned the
that until 5 December not recognise a right to privacy in adequacy of the UK’s existing domestic
2014, the UK Intelligence Services’ the UK. No one had a general right framework, RIPA, to communication
prac tice of accessing sur veillance to expect that his or her personal technology in inter net age. That
information obtained by the United information would be respected by ground was rejected by the Tribunal,
States’ spy agenc y, the NSA, was the state under UK law. If officers and is not within the scope of this
unlawful. Significantly, 5 December of the state came to your home to briefing paper.
2014 was the date that the I P T search your papers without a lawful
published an interim decision in the warrant, you had to sue them under The IPT found that there was no
case, and that publication made a trespass, not privacy. Therefore in publicly accessible framework
key difference. the age of telecommunications and governing intelligence-sharing,
the Post Office, where spying could hence any such sharing of intercept
Both sides in the case immediately occur invisibly, without trespass, material between NSA and GCHQ
c l a i m e d v i c t o r y. P r i v a c y I n t e r- no law protected the privacy of was unlawful. However, the judgment
national, a member of the coalition communications. This changed with simultaneously departed from the
of civil liberty organisations that the growing application of human required standards of accessibility and
brought the complaint in the rights under the European Convention foreseeability required by the ECtHR
aftermath of the Edward Snowden on Human Rights (ECHR), now fully in Kennedy. Reasoning that it would
disclosures, celebrated the decision incorporated to domestic law. In the be self-defeating to require secret
as the first time that a British court watershed case of Malone v UK (1985) intelligence services to publish its rules
has ruled against the Intelligence the European Court of Human Rights and policies in detail, the IPT’s test of
Services’ use of their interception (ECtHR) held that police phone tapping whether or not the regime is lawful is
powers. Downing Street and GCHQ, was a violation of article 8 – the right reformulated at paragraph 37 of the
on the other hand, welcomed the to privacy – because there was no law December judgment:
d e c i s i o n ’s c o n f i r m a t i o n t h a t t h e authorising the action. If the state is
UK’s current regime is lawful. To the going to eavesdrop on citizens, it first “(i) there must not be an unfettered
extent that in “one small respect” has to create a framework of legislation discretion for executive action. There
the program had been unlawful, the to authorise and control it. This led must be controls on the arbitrariness
government noted, the problem had to the UK putting its three secret of that action.
already been remedied. Intelligence Services on a statutory
footing (MI5 in 1989, MI6 and GCHQ (ii) the nature of the rules must be
This paper makes three key points. in 1994). The statutes require all their clear and the ambit of them must
First, despite finding illegality on the actions to be ultimately justified by one be in the public domain so far as
part of the government, the IPT’s of three broad headings of national possible, an “adequate indication”
decision has substantially lowered security, economic well-being of given (Malone v UK [1985] 7 EHRR 14
e x i s t i n g h u m a n r i g h t s s t a n d a rd s the UK, or preventing serious crime, at paragraph 67), so that the existence
pertaining to state surveillance. and reviewable by a Parliamentary of interference with privacy may in
Second, the procedures of the IPT committee called the Intelligence and general terms be foreseeable (…)
blur the line between the judiciary Security Committee (ISC).
and the executive, conjoining Consequently, the law must indicate
executive and judicial actions in The key issue in this case was whether the scope of any such discretion
one process. Finally, although the or not an acceptable legal framework conferred on the competent
case nominally pertains to privacy, covers the alleged surveillance practices authorities and the manner of its
the IPT did not expressly find any outlined in Snowden’s disclosures. The exercise with sufficient clarity to give
violation of privacy nor did it ECtHR’s core requirements for such a the individual adequate protection
conduct any rigorous review of the framework were outlined in Kennedy against arbitrary interference.”
actual practices of the Intelligence v UK:
Services. The ultimate question in This test will be met if (paragraph 41):
this case was to decide how much “First, the impugned [surveillance]
information about the internal rules measure must have some basis in “(i) Appropriate rules or arrangements
of a fundamentally secret system of domestic law. Second, the domestic exist and are publicly known and
surveillance must be made public. law must be compatible with the confirmed to exist, with their content
Department of Law
The London School of Economics
and Political Science
Houghton Street
London WC2A 2AE