Last December, the IPT (Investigatory Powers Tribunal) ruled that GCHQ’s surveillance programs didn’t violate human rights, despite being broad and untargeted dragnets. This ruling — in response to several legal challenges brought in the wake of the Snowden leaks — was unsurprising. The IPT has overwhelmingly supported GCHQ’s spying efforts in the past, having only sided against it in one-half of one percent of the challenges brought against it.
The IPT’s ongoing support of the UK’s intelligence community is unsurprising. To declare any of its programs as illegal or in violation of citizens’ rights would be to implicate itself for its near-constant approval of surveillance programs. That makes its February decision a bit of an aberration. In response to Privacy International’s legal challenge, it changed course slightly, declaring certain elements of the GCHQ’s spying efforts “illegal” — specifically, information sharing with the NSA. But this was only a partial capitulation. The IPT went on to say that this was once illegal but now was not, thanks to its December 2014 ruling. In some bizarre way, the legal complaints brought against the GCHQ managed to legalize its once-illegal partnership with the NSA.
However, its February decision makes it clear that operations prior to December 2014 were illegal, and provides an opening for UK citizens to force a bit more transparency on their intelligence community.
Because the IPT found the intelligence sharing to be illegal, anyone, inside or outside the UK, can file a complaint to the IPT and ask if their communications were part of that illegal sharing, and be legally entitled to an answer. [Privacy International’s Eric] King explained, “If they don’t find anything, it’s likely they respond ‘no determination’. If they do find something, the IPT is obliged to give a declaration to the individual that their communications were illegally interfered with.”
This is far more transparency than has been granted by the NSA, which still responds to similar inquiries about files on citizens (from those citizens themselves) with its omnipresent Glomar declaration, neither confirming nor denying the collected results of its domestic surveillance programs.