GCHQ's mass surveillance ruled illegal by Investigatory Powers Tribunal

Telecoms companies didn't bother checking whether data demands from GCHQ were lawful

GCHQ's almost unfettered mass surveillance has been ruled illegal by the Investigatory Powers Tribunal following a legal challenge brought by Privacy International.

However, the Tribunal also decided not to demand any sanctions against the law-breaking organisations.

The 113-paragraph ruling was made by the Tribunal on Monday, which found that successive foreign secretaries were wrong to give GCHQ the almost unfettered right to collect vast quantities of personal customer information from telecoms firms.

According to Privacy International, the Tribunal's judgement exposes the "error-ridden and inconsistent evidence provided by GCHQ throughout the case", "the willingness of telecoms companies to secretly hand over customer data on the basis of mere verbal requests from GCHQ", and "the inadequacies of the intelligence oversight regime in failing to identify this delegation of power".

The tribunal also exposed some rather cavalier approaches to data collection, with the government doing a u-turn on its claims that the foreign secretaries had direct and full control over the data telecoms companies were compelled to provide GCHQ under Section 94 information requests under the Telecommunications Act of 1984.

"The Foreign Secretary was supposed to protect access to our data by personally authorising what is necessary and proportionate for telecommunications companies to provide to the agencies," said Privacy International solicitor Millie Graham Wood.

She continued: "The way that these directions were drafted risked nullifying that safeguard, by delegating that power to GCHQ — a violation that went undetected by the system of Commissioners for years and was seemingly consented to by all of the telecommunications companies affected.

"It is proof positive of the inadequacy of the historic oversight system; the complicity of telecommunications companies who instead of checking if requests were lawful, just handed over customers' personal data as long as their cooperation was kept secret; and the scale of the task facing the new Investigatory Powers Commissioner, Sir Adrian Fulford".

It therefore appears as if GCHQ had Hoovered up a decade's worth of communications data unlawfully, illegal activity that would have been kept under wraps if it weren't for the persistence of pressure groups like Privacy International.

"The judgment demonstrates the danger of relying heavily on 'closed' hearings in which claimants such as Privacy International cannot see or challenge evidence presented by the government," claimed the organisation.

"It was only after sustained and tenacious questioning by Privacy International that the government admitted the errors in the sworn testimony it had previously submitted to the IPT."

The fallout following the Tribunal's findings have yet to be seen, but the foreign secretary will likely need to re-address how approvals for GCHQ surveillance are carried out and be a lot more selective about precisely what data is collected and what is then done with it.

The ruling comes after sections of the recent Investigatory Powers Act were also deemed illegal in other court battles.