‘Prove you were spied on,’ secret UK court tells 650 claimants

© Kieran Doherty
Hundreds of claimants who say they were subjected to illegal surveillance have been told by Britain’s Investigatory Powers Tribunal (IPT) they must prove they are “potentially at risk” of being spied upon before the allegations can be further probed.

The court’s ruling, which was issued on Monday, will likely anger human rights campaigners, who argue citizens should not be forced to justify allegations of US-UK bulk surveillance.

Since the launch of a 2015 campaign by Privacy International (PI), some 650 people have filed claims with the IPT to decipher if British listening post GCHQ had spied on them unlawfully. PI says the high number of claimants is a direct result of UK intelligence agencies’ bulk surveillance techniques.

Although Westminster previously tried to block the claims from being investigated, the Tribunal rejected government pressure and decided the cases should be heard. It stipulated, however, that each individual who files a claim must hand over evidence demonstrating why they are possibly in jeopardy of being surveilled. The court will then use these submissions to decide if allegations of unlawful snooping require further investigation.

Landmark case 

The Tribunal, which claims to be independent of the British government, was founded at the turn of the millennium under Britain’s Regulation of Investigatory Powers Act (RIPA) 2000. Its address remains unknown to the public.

The clandestine court is responsible for probing and ruling upon complaints of illegal snooping that constitute human rights breaches. It has jurisdiction to hear complaints regarding snooping by any authority with powers under RIPA. In addition to this, it is the only judicial organ with the power to investigate Britain’s secret service and intelligence agencies: MI5, MI6 and GCHQ.

Each of these agencies is required to give the court details about complaints made on human rights grounds. The Tribunal must then make a decision on whether such surveillance is legal. In order to decipher this, it is required to consider whether spying relevant to each complaint has been authorized in an appropriate and lawful fashion. Complaints are then processed at the court’s discretion, either via an oral hearing or on paper.

The 650 claims currently under the IPT’s consideration followed a landmark case in February 2015. The case in question was launched by Amnesty International, Liberty, PI and seven other NGOs. It had several outcomes, including a ruling that UK intelligence agencies had acted illegally in carrying out snooping for the US-based National Security Agency (NSA). The Tribunal also found that GCHQ had unlawfully snooped on Amnesty International and another claimant, the South African Legal Resources Center.

In the aftermath of these findings, the Tribunal was flooded with claims from British citizens wishing to know whether their communications devices were illegally breached by UK intelligence agencies.

Illegal spying

The European Court of Human Rights (ECHR) has ruled on multiple occasions in recent years that the IPT fails to adequately uphold citizens’ human rights on questions of snooping.

Legal officer at PI Scarlet Kim condemned the Tribunal’s decision to ask claimants to hand over evidence backing up their allegations.

“While we are pleased that the Tribunal will, if additional submissions are made, proceed to consider the domestic claims of persons asserting that the British intelligence agencies unlawfully collected their communications, the Tribunal’s failure to provide adequate redress to all victims of illegal spying is concerning,” she said.

“An essential feature of any true democratic society is that covert breaches of the law are disclosed to the victims. The Tribunal’s decision is yet another example of the lack of genuine and rigorous public scrutiny of the British intelligence services.”

In the wake of the 9/11 attacks on the Pentagon and World Trade Center, bulk domestic snooping in the US increased dramatically. Britain was soon to follow suit.

Mass surveillance and bulk collection plans tabled in Britain’s draft Investigatory Powers (IP) Bill were condemned by ex-US NSA official William Binney earlier this year. Once an elite staff member of the agency, he later blew the whistle on its snooping practices.

His work there occurred at an important time, as the contentious US Patriot Act opened the global gateway to mass snooping.

“My big objection with the NSA and GCHQ and all of the agencies that are affiliated with them is fundamentally about bulk acquisition of data, of any type,” he told a select committee set up to examine the IP Bill in January.

Binney went on to argue large volumes of data gleaned through bulk collection have left intelligence analysts unable to work effectively.

“Dumping bulk data on your analysts makes them fail and that’s consistently what’s happened,” he said.

“This is what I’ve objected to from the very beginning of this process in the NSA. This has made [NSA] analysts fail and they have failed consistently since 9/11 and even before that.”

The IPT does not deal with cases of alleged surveillance carried out by individuals or corporate actors. It is also excluded from Britain’s Freedom of Information Act (FoI) 2000, meaning information it uncovers as investigations evolve remains largely cloaked in secrecy.

Should an individual or organization be unsuccessful with the Tribunal, the only avenue of appeal is to take the complaint to the European Court of Human Rights (ECHR). Human rights advocates warn this option could be eroded if Conservative Party plans to scrap the Human Rights Act (HRA) and replace it with a British Bill of Rights come to fruition.