Spooky action at an unknown distance - GCHQ and Amnesty International

Amnesty International recently discovered it has been subject to surveillance by UK government spooks.

However, despite a trek through the courts ending with a ruling in their favour, they know almost nothing more about what aspects of their work have been spied upon and why.

Northern Ireland Programme Director Patrick Corrigan spoke with Scope about his frustrations not only at GCHQ rifling through some or all of their communications, but also about the extreme limitations of the legal findings.

His and the group’s primary concern, however, is the effect surveillance will have on Amnesty International’s work.

The human rights organisation operates across the globe and aims to protect the basic freedoms of individuals generally – but it is concerned these efforts could be undermined if it is not able to offer privacy to those who want their help.

Amnesty tries to represent people in perilous situations whose human rights could be or are being abused. If communications between the organisation and such people are being passed around by intelligence agencies and governments then this becomes much more difficult.

It is possible such information could find its way to those accused of human rights abuses. Vulnerable people may even feel they could be taking a risk by contacting the organisation.

Mr Corrigan said: “I suppose the starting point is that Amnesty International doesn’t believe we should live in a surveillance society where no-one of us can go about our daily business without the fear that our movements and private communications are being listened in to.

“That approach to government makes everyone a suspect and we don’t think private interactions of a group like Amnesty should have to work under the presumption of being spied upon. You might expect that in police states like Putin’s Russia, but you should not expect that in peacetime 21^st Century UK.”

The process

So, how does anyone know they are being spied upon? That starting point is knowing how and where to ask questions. Mr Corrigan says Amnesty has a certain advantage over other groups because it has the “knowledge and wherewithal” to pursue the matter through the courts.

The Investigatory Powers Tribunal is the court which “investigates and determines complaints of unlawful use of covert techniques by public authorities infringing our right to privacy and claims against intelligence or law enforcement agency conduct which breaches a wider range of human rights.”

It conducts nearly all of its deliberations in secret, and only provides the narrowest of information following a ruling.

Following the revelations about mass governmental surveillance from CIA whistleblower Edward Snowden in 2013, Amnesty International was one of several human rights organisations that joined an application before the IPT originally brought by a number of other groups, including Liberty.

To date, three separate judgements have been made in this claim by the court – firstly, in December 2014, saying the UK’s mass surveillance and intelligence sharing programmes met the standards of the European Convention on Human Rights (a decision being appealed in the European Court of Human Rights).

In February, in the first ever IPT ruling against the security services, the ECHR rights of individuals were said to have been breached in respect of information of information transmitted within the UK that had been passed on by GCHQ to US agencies.

The third ruling, issued on June 22, addressed whether any of the appellant NGOs had been subject to unlawful surveillance by the UK government, following a closed hearing from which the groups themselves were excluded.

The IPT found in favour of two of the groups, but initially named them incorrectly as the Legal Resources Centre (a South African NGO) and the Egyptian Initiative for Personal Rights (EIPR).

Only following a correction put to the court by GCHQ itself did it fix its error and state that the latter group, EIPR, was not one of the claimants found to have been spied on illegally – and instead this was Amnesty International, with the illegality relating to the fact that the security services held on to some of its information retrieved from the group for longer than the law allows.

The IPT does not simply answer questions about whether spying has taken place. It is only in the case where it has deemed spying has taken place illegally that it will confirm that spying has taken place at all.

Otherwise it indicates “no determination” of illegality – which does not mean surveillance has not taken place.

So, while Amnesty knows it was spied upon and that this had been done, to some extent or another, illegally, it knows almost nothing more about the nature of this surveillance – what had been looked at, why, when, and so on.

The other appellants may well have been subject to surveillance but, if the IPT deems this legitimate, no information is provided.

Mr Corrigan said: “The only reason we know anything about this is because we have the knowledge and wherewithal to pursue this through the IPT and its Kafkaesque and strange judicial procedures. But beyond that we know next to nothing.

“We want an urgent meeting with the Prime Minister, and want the IPT to publish to the maximum extent possible more information about how our private correspondence was deemed fair game for GCHQ and on what basis our private communications have been spied on.

“There should be much fuller information disclosed than there has been to date. Then we need an independent inquiry into how the surveillance system of this country is working.

“We don’t know if it’s specific to a particular office or area of work. But the fact is we are a law-abiding organisation whose job it is to uphold the law, including international human rights law and it is outrageous for the UK government to be intercepting and holding our communications.”

Speculation

Given the information vacuum about the spying, Amnesty has been left able to engage in educated speculation about the whys and wherefores of the surveillance.

Some of their work in Northern Ireland concerns abuses of power from the security services in the past number of decades but, as Amnesty is a worldwide operation, the possibilities are significant in extent.”

“Trying to figure out what is the interest of GCHQ in the law-abiding business of Amnesty International. That can take one in all sorts of directions.

“It could be any part of our work in any part of the world that is of interest – or it could be all our work.”

Mr Corrigan also raised concerns that our government could effectively be an agent of surveillance for foreign governments, including some whose human rights abuses are extreme.

“We know, for instance, that there is information sharing between the UK and US. But the UK could be sharing our information with other allies, and some of them have atrocious human rights records, such as Saudi Arabia - where Raif Badawi could soon be again subjected to flogging.

“We are in touch with his family and his lawyers. Are those private communications being looked at? Are they being shared?”

There is balance to be struck between individuals’ rights to privacy and freedom of expression, and the security services powers in respect of national security.

Current law already provides for this – with the balancing of important but conflicting rights at the heart of the ECHR.

Is the surveillance of a human rights organisation balanced? If that is allowed, then it is natural to ask what, if anything, is impermissible.

Undermining a reputable global organisation set up to boost the human rights of individuals everywhere – offering justification on a legal, and specifically human rights, basis? It is difficult to see how that can ever represent balance.

Mr Corrigan said: “Our job in part is to hold the state to account when it crosses the line into illegality. That’s the lawful basis of any human rights organisation anywhere in the world and we should live in a free enough society to be able to do that. On a daily basis we are trying to help those who do not live in a free society.

“We believe that things have gone far too far. We understand that there are national security interests, and that states have a certain degree of latitude in what they are able to do - but not based on the mass surveillance system we have now, not based on the absolute lack of accountability we have now.

“We think it’s important for there to be checks and balances in the system but it’s quite clear those checks and balances are utterly out of kilter at the moment, and that’s why we are calling for an independent inquiry into surveillance system in the UK at this minute.”

Amnesty says a planned new Investigatory Powers Bill presents an opportunity for wholesale reform of our surveillance and data retention laws – while warning that it could end up with even more onerous spying in place, especially if the Data Communications Bill is resurrected.

Today it was revealed that NI Secretary of State Theresa Villiers has recently turned down two MI5 surveillance warrant applications for use in Northern Ireland.

On the face of it this casts the process in a good light, showing that security services do not have a free hand to do whatever they like. However – as always in these cases and, to a certain extent, out of some necessity – the lack of information available to us as individuals means it changes nothing about how we hold these agencies to account: we rely largely on trust.

There will always be a broad and significant secrecy to the workings of GCHQ and related bodies. However, that does not necessarily have to as comprehensive as it is now, while we as individuals must also take note of the legal structures in place and consider whether they do represent our interests as best as possible.

Technological developments in the past couple of decades have seen the surveillance possibilities for governments explode. Now the UK has to work on finding a balance between what can be done and what should be done.