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The Realms of Impunity

GCHQ, Privacy, and Murder

By Binoy Kampmark | Dissident Voice | January 30, 2014 

It will only get worse, but the last few days have been interesting in the accumulating annals of massive surveillance. Britain’s equivalent of the National Security Agency, GCHQ, has been placed under the legal microscope, and found wanting.

The legal briefs who have been advising 46 members of the all-party parliamentary group on drones has handed down a sobering assessment of the GCHQ mass surveillance program: It is, for the most part, illegal. In some cases, it may well patently criminal.

According to barristers Jemima Stratford QC and Tom Johnston, the behaviour of GCHQ staffers, in many instances, potentially violates the privacy safeguards laid out in the European Convention on Human Rights (ECHR), largely due to the sheer vagueness of its remit. Such lack of clarity has enabled GCHQ staffers to rely “on the gaps in the current statutory framework to commit serious crime with impunity.”

Some of these are worth noting. Mass, bulk surveillance would be in contravention of privacy protections under EU law. “We consider the mass interception of external contents and communications data as unlawful. The indiscriminate interception of data, solely by reference to the request of the executive, is a disproportionate interference with the private life of the individuals concerned.”

Interception of bulk metadata (phones, email addresses) is treated as a measure “disproportionate” and in violation of Article 8 of the ECHR. That in itself was of little surprise. Of even greater interest was how the barristers dealt with the musty, archaic nature of existing legislation which the executive has been all too keen on using.

Much of this expansive, illegal behaviour lies in the way the Regulation of Investigatory Powers Act 2000 (Ripa) has been left in the technological lurch. Use, retention and destruction protocols on metadata are deemed inadequate, given the few restrictions on the practice. For one, Ripa distinguishes between metadata itself and the content of the messages, a clearly anachronistic form of reasoning that has yet to change.

The act, for example, provides too broad a discretion to the foreign secretary, currently William Hague, while providing “almost no meaningful restraint on the exercise of executive discretion in respect of external communications.”

The rather deft way GCHQ has also gone about intercepting communications – via transatlantic cables – cannot be accepted as legal, and would make no difference “even if some or all of the interception is taking place outside UK territorial waters.”

A troubling, though hardly astonishing feature of the brief is accountability of GCHQ staffers to potential criminal liability. The spectre of this rises for the information gathered and subsequently shared for use by allies, notably the United States. Intelligence used for targeting non-combatants with drone strikes is taken as one specific, and troubling example.

“An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility.” The transfer itself, suggests the advice, would be unlawful for that reason. Nor can UK officials rely on the obtuse notion of “anticipatory self-defence” which is used by Washington to justify drone strikes in areas where they are not officially involved. Britain has yet to succumb, at least in that area, to flights of legal fancy.

The way such data is used in drone strikes is hardly an academic issue. It has been the subject of legal deliberations by the Court of Appeal and the High Court. The Court of Appeal’s decision in the Noor Khan case (Dec 2013) involved evidence dealing with GCHQ’s alleged supply of information to the CIA in a drone strike. The claimant’s father, in that case, had been killed by such a strike in the Federally Administered Tribal Areas of Pakistan.

Unfortunately, the Court of Appeal proved all too reluctant to venture into operational matters, feeling that doing so would ask the court to “condemn the acts of the persons who operate the drone bombs.” In Lord Dyson’s view, “It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here.” More’s the pity.

The advice will find itself the subject of scrutiny by the Parliamentary Intelligence and Security Committee, a body that has come surprisingly late to the game. After all, it took a committee on drones and their questionable deployments, not one dealing with intelligence and security, to produce some sound observations on mass surveillance.

How far the views achieve traction is anybody’s guess. Committees have a habit of making a hash of sound observations and it may well fall to others, such as the Joint Committee on Human Rights, to man the decks for reform. But the words of Labour MP Tom Watson, who chairs the committee on drones, are worth noting. “If ministers are prepared to allow GCHQ staffers to be potential accessories to murder, they must be very clear that they are responsible for allowing it.”

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: bkampmark@gmail.com.

January 30, 2014 Posted by | Civil Liberties, Full Spectrum Dominance, War Crimes | , , , | 1 Comment

Legal Analysis Requested By Members Of Parliament Says GCHQ Surveillance Is Illegal Too

By Mike Masnick | Techdirt | January 29, 2014

We’ve seen a few times now how legal analysis suggests that the NSA’s surveillance activities are clearly illegal. However, over in the UK, the government has appeared to be even more protective of the surveillance by GCHQ, and even more insistent that the activities have been legal. While there’s a thriving debate going on in the US, many UK officials seem to have pushed back on even the possibility of a similar debate — and there has been little suggestion of reform. While it’s still unclear how much reform there will be of the NSA, the UK government hasn’t indicated even an openness to the idea.

But now, similar to the recent PCLOB report in the US, a legal analysis of the GCHQ, written at the request of a bunch of Members of Parliament, has argued that much of what GCHQ is doing is illegal under UK law:

In a 32-page opinion, the leading public law barrister Jemima Stratford QC raises a series of concerns about the legality and proportionality of GCHQ’s work, and the lack of safeguards for protecting privacy.

It makes clear the Regulation of Investigatory Powers Act 2000 (Ripa), the British law used to sanction much of GCHQ’s activity, has been left behind by advances in technology. The advice warns:

  • Ripa does not allow mass interception of contents of communications between two people in the UK, even if messages are routed via a transatlantic cable.
  • The interception of bulk metadata – such as phone numbers and email addresses – is a “disproportionate interference” with Article 8 of the ECHR.
  • The current framework for the retention, use and destruction of metadata is inadequate and likely to be unlawful.
  • If the government knows it is transferring data that may be used for drone strikes against non-combatants in countries such as Yemen and Pakistan, that is probably unlawful.
  • The power given to ministers to sanction GCHQ’s interception of messages abroad “is very probably unlawful”.

There’s a lot more in the report, described at that Guardian link above, which is well worth reading. It makes you wonder how much longer the UK government can pretend that everything is perfectly fine with the GCHQ’s activities.

January 29, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , | Leave a comment

Meet CO-TRAVELER: The NSA’s Cell Phone Location Tracking Program

By April Glaser and Kurt Opsahl | EFF | December 5, 2013

An article yesterday in the Washington Post disclosed the NSA’s massive cell phone location program. The program, codenamed CO-TRAVELER, is designed to track who meets with whom and covers everyone who carries a cell phone, all around the world.

With neither public debate nor court authorization, CO-TRAVELER collects billions of records daily of cell phone user location information. It maps the relationships of cell phone users across global mobile network cables, gathering data about who you are physically with and how often your movements intersect with other cell phone users. The program even tracks when your phone is turned on or off.

The trillions of collected records, which add up to twice the amount of data in the Library of Congress’ print collection, are saved and stored in the NSA’s mammoth database called FASCIA.  While allegedly aimed at foreigners and mobile phones overseas, the NSA admits that it has “incidentally” collected location information on U.S. persons.

CO-TRAVELER ignores fundamental values in the Constitution the NSA has sworn to uphold, including the right against unreasonable search and seizure as well as freedom of association. Thinking globally, the program disregards international human rights law, which is currently in the process of being reaffirmed in a draft resolution by the UN General Assembly.

The Fourth Amendment Protects Cell Phone Location Data

EFF has been working for years to get the courts to recognize that the government must get a warrant before seizing cell phone location records. The court decisions are split. In 2008 the Third Circuit federal appeals court correctly held that federal magistrates have the discretion to require the government to get a search warrant based on probable cause before obtaining cell phone location records. But the Fifth and Sixth Circuit have approved the seizure of cell phone location records without a warrant. The Supreme Court has yet to rule on cell phone location, but did hold that planting a GPS device on a car requires a warrant, without reaching a decision on whether the warrantless tracking itself would violate the Fourth Amendment.

CO-TRAVELER does not simply collect location information. It creates a portrait of travel times and people who crossed paths, revealing our physical interactions and relationships. The cell site information goes beyond email and phone calls and ordinary telephony data, allowing the U.S. government to know who we are with in-person and where. This is information that would be impossible to collect using traditional law enforcement methods.

An NSA official said that the agency’s collection methods are “tuned to be looking outside the United States.” This appears to be an attempt to assert that U.S. law does not apply because they are not “targeting” U.S. persons. Without the protections of U.S. law, the spying is regulated only by Executive Orders–orders by the President that are not subject to substantive oversight, and can modified at any time.  It’s likely that this program falls under Executive Order 12333. EO 12333 has few limits on surveillance overseas, even if it is a U.S. person.

CO-TRAVELER Violates the First Amendment

The CO-TRAVELER program is based on guilt by association, tracking location to determine our relationships and where we meet. The First Amendment protects our right to associate with individuals and groups without disclosing that information to the government. This is an essential right because it allows people to discuss their ideas, concerns, and feelings with others without the shadow of government surveillance. And this is not just a right recognized in the United States: the right to freely associate with individuals or groups has also been recognized in the UN Universal Declaration of Human Rights, the European Convention on Human Rights, and in countless other human rights charters.

EFF is currently representing 22 organizations from across the political spectrum who sued the NSA for violating their First Amendment right of association by illegally collecting their call records. The case, First Unitarian v. NSA, brings to light the real implications of mass surveillance–people are afraid to associate and meet based on likeminded interests.

Equally threatening to the rights guaranteed by the First Amendment are the speech-chilling effects of cell phone location tracking. Even if you use encryption online, when you meet someone in person and aren’t even on the phone, your movements may be tracked and recorded and stored.  The Washington Post article reports that the NSA tracks when a cell phone has been turned off, for how long, and what nearby devices are also being used and shut off.  The NSA provides further scrutiny of people who switch their phones on and off for brief periods or use throw-away phones.

Yet these security practices are common methods that journalists (or anyone else who might be privacy conscious) use to ensure security and trust when they meet with confidential sources and conduct investigations. Under this program, it is harder than ever for a journalist to guarantee a reasonable degree of privacy and security to their sources.

Privacy is an Internationally Recognized Human Right

While the NSA likes to claim it takes great care in not collecting the data of U.S. persons, the billions of people tracked by their programs have a basic human right to privacy. Right now the United Nations General Assembly is discussing a resolution that reaffirms that the human right to privacy is carried over and effective in the digital age.

EFF is part of the global movement demanding the protection of our most basic right to privacy, no matter the country or citizenship of a person. We signed on to a list of thirteen principles that a state should use to determine whether or not a surveillance program will encroach on fundamental human rights. Join us by adding your name to the global petition for privacy today.

We will continue to fight against the NSA’s unconstitutional and over-broad surveillance programs in the courts and in Congress, and advocate for deeper oversight of the NSA from all branches of government.

December 6, 2013 Posted by | Civil Liberties, Corruption, Full Spectrum Dominance | , , , , | Leave a comment

Britain rejects EU watchdog plan to probe data-gathering practices – report

RT | November 14, 2013

The UK has rejected a call from an EU watchdog to probe how security agencies intercept metadata. Documents divulged by Edward Snowden revealed the covert practices of British spy body GCHQ in what has been described as “breach of fundamental rights.”

UK newspaper the Guardian reported that Britain sought to “disassociate itself” from a Council of Europe draft resolution urging an investigation into data gathering techniques. The European watchdog is currently holding a conference in the Serbian capital of Belgrade entitled ‘Freedom of Expression and Democracy in the Digital Age’ which seeks to ensure intelligence gathering practices abide by the European Convention on Human Rights.

To this end the Council has produced a report entitled ‘Political Declaration and Resolutions’, outlining recommendations to safeguard against “abuse which may undermine or even destroy democracy.”

A clause (13(v)) in the report urges for an inquiry into the gathering of “vast amounts of electronic communications data on individuals by security agencies, the deliberate building of flaws and ‘backdoors’ in the security system of the internet of otherwise deliberately weakening encryption.”

The UK has moved to exempt itself from this particular part of the document, claiming it was “unable to agree to it.”

“The United Kingdom needs to place formally on record that while it has not blocked consensus on this text, the UK needs to disassociate itself from paragraph 13(v). The UK strongly supports the overall approach of the resolution including supporting a free and open internet that promotes freedom of expression,” said the declaration obtained by the Guardian.

The UK, however, accepted that data could be gathered by security agencies for “a legitimate aim” as long as it is in conjunction with existing human rights legislation and the rule of law.

Security leaks divulged by former CIA worker Edward Snowden blew the whistle on the GCHQ’s multiple intelligence gathering activities and its collusion with the NSA. As well as gathering troves of metadata and recording millions of telephone calls, the latest reports obtained by Der Spiegel found that the GCHQ was spying on data exchange companies through a spoof version of the social network site LinkedIn.

Using a method known as ‘Quantum insert’ the GCHQ created dummy versions of the website to target organizations and individuals and smuggle malware onto their computers.

“For LinkedIn the success rate [of rerouting a target to a malicious website] is looking to be greater than 50 percent,” said the leaked documents.

In addition, more information was revealed at the beginning of November as to the extent of the GCHQ’s cooperation with the NSA. Reports emerged that the GCHQ was feeding the NSA with the internal information intercepted from Google’s and Yahoo’s private networks.

So far the British government has done little to allay fears that UK spy agencies are acting outside the law in violation of human rights.

The Center for European Policy Studies published a paper accusing the UK along with other European countries of systematically violating human rights with their spy practices.

“We are witnessing a systematic breach of people’s fundamental rights,” wrote Sergio Carrera, a Spanish jurist who co-authored the paper with Francesco Ragazzi, a professor of international relations at Leiden University in the Netherlands. They called for action from the EU parliament to distinguish “democracies from police states.”

November 14, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , , , , , , , , , , | Leave a comment

UK drone strikes violate international law: legal opinion piece

Press TV – June 8, 2013

Britain’s operating of killer drones in Afghanistan may be violating the international law, a legal firm representing peace campaigners has argued in an opinion piece.

The legal opinion by Public Interest Lawyers argues that the use of killer drones in Afghanistan is a breach of the international law under the European Convention for Human Rights (ECHR).

The document says that the ECHR’s article 2 requires the governments to use “no more [force] than absolutely necessary” during conflicts.

“Only when it is absolutely necessary to kill someone rather than arrest/disable them will the use of drones be lawful. And even then, drones may only be used for … self defence under 2(2)(c),” it says.

According to the Public Interest Lawyers, this means that the ECHR obliges Britain to the use of killer drones only in “situations in which there is an immediate threat to life” that “prevents the carrying out of ‘targeted killings’ and narrowly circumscribes their use even on ‘the battlefield'”.

“There is therefore a strong presumption that the UK’s drones programme is in breach of international law,” it adds.

The British Ministry of Defense announced back in April that they are operating killer drones in Afghanistan by remote-pilots from RAF Waddington base in Lincolnshire.

The ministry claims its operations are in accordance with applicable international humanitarian law.

This comes as drone attacks normally come with extreme “collateral damage” to the civilian population even when taking the American and British claims that they are targeting terrorists by terror drones as true.

Hundreds of civilians have been killed the remote-controlled killer drones strikes on various parts of Afghanistan over the past years.

Civilians’ casualties have triggered widespread protests against killer drone attacks in the Asian country with the Afghan government repeatedly calling for an end to the deadly assaults.

June 8, 2013 Posted by | War Crimes | , , , , , , | 1 Comment