US spy chief Clapper defends Prism and phone surveillance

[David Guyatt]

Will the NSA/GCHQ give a damn?

Mass internet surveillance threatens international law, UN report claims

Actions of intelligence agencies are corrosive of online privacy', Ben Emmerson says in response to Edward Snowden leaks

• Owen Bowcott, legal affairs correspondent
  
• The Guardian, Wednesday 15 October 2014
  
• Jump to comments (27)
  

'Bulk access technology is indiscriminately corrosive of online privacy', warns Ben Emmerson. Photograph: Sarah Lee for the Guardian

Mass surveillance of the internet by intelligence agencies is "corrosive of online privacy" and threatens to undermine international law, according to a report to the United Nations general assembly.
The critical study by Ben Emmerson QC, the UN's special rapporteur on counter-terrorism, released on Wednesday is a response to revelations by the whistleblower Edward Snowden about the extent of monitoring carried out by GCHQ in the UK and the National Security Agency (NSA) in the US.
"Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by [the UN's International Covenant on Civil and Political Rights]," Emmerson, a prominent human rights lawyer, concludes. The programmes, he said, "pose a direct and ongoing challenge to an established norm of international law."
Article 17 of the covenant, Emmerson points out, states that "no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home and correspondence, nor to unlawful attacks on his or her honour and reputation".
The 22 page report warns that the use of mass surveillance technology, through interception programs developed by the NSA and GCHQ such as Prism and Tempora, "effectively does away with the right to privacy of communications on the internet altogether".
It also highlights more intrusive methods, such as the NSA's Quantum program, which enables the agency to take "secret control over servers in key locations" and by impersonating websites "inject unauthorized remote control software into the computers and Wi-Fi-enabled devices of those who visit the clone site".
Most countries possess the technical capacity to intercept and monitor calls made on a landline or mobile telephone, enabling an individual's location to be determined, his or her movements to be tracked through cell site analysis and his or her text messages to be read and recorded, Emmerson says. An increasing number of countries also use malware systems that infiltrate individuals' computer or smartphone, to override settings and monitor its activity.
"This amounts to a systematic interference with the right to respect for the privacy of communications, and requires a correspondingly compelling justification," Emmerson maintains.
"Merely to assert without particularization that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful."
The argument that anything online should be considered to be in the public domain is demolished by Emmerson. "Merely using the internet as a means of private communication cannot conceivably constitute an informed waiver of the right to privacy," he states. "The internet is not a purely public space. It is composed of many layers of private as well as social and public realms."
Mass surveillance of digital content and communications data is "a serious challenge to an established norm of international law", according to the report. "The very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy.
"It is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately. The very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis."
The report refers to revelations first published in the Guardian last year about the NSA's mass collection of telecommunications data and its authorisation under a secret court order.
"The right to privacy is not," Emmerson's report acknowledges, "an absolute right. Once an individual is under suspicion and subject to formal investigation by intelligence or law enforcement agencies, that individual may be subjected to surveillance for entirely legitimate counter-terrorism and law enforcement purposes."
But he adds: "There is an urgent need for states to revise national laws regulating modern forms of surveillance to ensure that these practices are consistent with international human rights law.
"The absence of clear and up-to-date legislation creates an environment in which arbitrary interferences with the right to privacy can occur without commensurate safeguards. Explicit and detailed laws are essential for ensuring legality and proportionality in this context."
The report concludes: "The prevention and suppression of terrorism is a public interest imperative of the highest importance and may in principle form the basis of an arguable justification for mass surveillance of the internet.
"However, the technical reach of the programmes currently in operation is so wide that they could be compatible with article 17 of the covenant only if relevant States are in a position to justify as proportionate the systematic interference with the internet privacy rights of a potentially unlimited number of innocent people located in any part of the world."

[David Guyatt]

GCHQ, MI5 and MI6 are spying on legally privileged communications in sensitive law cases.

UK intelligence agencies spying on lawyers in sensitive security cases

Internal MI5, MI6 and GCHQ documents reveal routine interception of legally privileged communications

• Owen Bowcott, legal affairs correspondent
  
• The Guardian, Friday 7 November 2014
  

The latest revelations about intelligence policies follow a claim on behalf of Libyan Abdel-Hakim Belhaj, pictured, who was abducted by MI6 and the CIA. Photograph: Francois Mori/AP

The intelligence services have routinely been intercepting legally privileged communications between lawyers and their clients in sensitive security cases, according to internal MI5, MI6 and GCHQ documents.
The information obtained may even have been exploited unlawfully and used by the agencies in the fighting of court cases in which they themselves are involved, the Investigatory Powers Tribunal (IPT) has been told, resulting in miscarriages of justice.
Exchanges between lawyers and their clients enjoy a special protected status under the law.
The Conservative MP David Davis, a former shadow home secretary, said past practice was to delete such material immediately if it was ever picked up. Amnesty International said the government was gaining "an unfair advantage akin to playing poker in a hall of mirrors".
Their comments come after 28 extracts of internal intelligence policies showing how legally privileged material is handled by security officials were released to lawyers pursuing a claim through the IPT. The tribunal considers complaints against MI5, MI6 and GCHQ.
The claim has been brought by two Libyans, Abdel-Hakim Belhaj and Sami Al Saadi, and their families after they were abducted in a joint MI6-CIA operation and sent back to be tortured by Colonel Muammar Gaddafi's regime in 2004.
Belhaj has been given permission to sue the government for his mistreatment. Following revelations by the US whistleblower Edward Snowden, Belhaj's lawyers feared their communications with their client could have been compromised by GCHQ's mass surveillance of telephone and online communications.
Responses given by lawyers for the government at the IPT imply that there has already been one unidentified case, handled by MI5, where "the potential for tainting was identified" suggesting that lawyers pursing litigation may wrongfully have benefited from intercepts.
Until Thursday's hearing, government lawyers had argued that releasing the internal intelligence agency guidance would compromise national security.
A claim that MI5, MI6 and GCHQ have been listening in to legally privileged communications between lawyers and their clients has forced the intelligence agencies to release extracts of internal policy documents. The 28 re-typed "exhibits", attached underneath the government's legal response, show guidelines in force at various times on how intelligence officers might use such sensitive material. The investigatory powers tribunal, which is considering the claim, hears complaints about the intelligence services and use of surveillance by other government bodies.Dinah Rose QC, for Belhaj, said the documents also appeared to show that the agencies had hidden from the courts the fact that they held legally privileged material relating to security cases.
"There's a real risk, if these matters are not fully explored, that confidence in our justice system could be undermined," she told the tribunal. "These policies raise a strong prima facie case that there's been abuse of process and that real injustices may have been done.
"Even the most recent policies do not adequately provide for proper information barriers [between] those handling litigation and those who received the intercepted legally privileged material."
Among cases that may have been affected are highly sensitive hearings at the security immigration tribunal Siac, control order hearings and those who have brought claims following revelations by Snowden.
Rose said: "This [Belhaj] case is the tip of the iceberg. It raises questions about a large number of cases and about the integrity of judgments reached by courts in civil and criminal cases. We have a situation where the policies, on the face of it, appear to permit lawyers to be involved in practices that are unlawful and unethical."
James Eadie QC, for the government, resisted calls from Belhaj's lawyers for the original documents, showing the redactions, to be released. He said: "The claimants will have the content … the exact words used to the extent that they can be disclosed in open."
The new chief of GCHQ, Robert Hannigan, sought earlier this week to justify the extent of surveillance powers by arguing that jihadis and criminals are becoming increasingly sophisticated in the way they exploit the internet.
One of the intelligence agency documents acknowledges: "Material subject to LPP is amongst the most sensitive sorts of information that may be obtained by the security service. The confidentiality of lawyer-client communications is fiercely guarded by the law and any departure from it in the national security context must be narrowly construed and strictly justified."
The full hearing of Belhaj's claim is due to be heard by the IPT in January.
Cori Crider, director at the legal charity Reprieve and US counsel for Belhaj, said: "It's now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years. Today's question is not whether, but how much, they have rigged the game in their favour in the ongoing court case over torture. The documents clearly show that MI5's and GCHQ's policies on snooping on lawyers have major loopholes. And MI6's policies are so hopeless they appear to have been jotted down on the back of a beermat. This raises troubling implications for the whole British justice system. In how many cases has the government eavesdropped to give itself an unfair advantage in court?"
Davis, who attended the hearing, said: "Lawyer-client confidentiality is a foundation stone of our legal system, and historically has been absolutely respected by government agencies. In the past, when a bug or intercept on a criminal accidentally picked up a conversation with the criminal's lawyer, the rule was that it was immediately deleted. Today's hearing shows that is no longer the case.
"Each of the three main agencies are clearly keeping records of legal privileged material, and have explicit policies to handle it. In the case of MI5 that policy includes concealing from the court that they have the material, including the secret courts and security cleared special advocates paid by the state.
"This change has been carried out without changing the law or telling parliament. This is an enormous breach of defendants' judicial rights. Indeed, one dreadful possible consequence is that it could lead to historic convictions being quashed in serious cases, including terrorism cases."
Richard Stein, a partner at Leigh Day who represents the Belhaj family, said: "After many months' resistance, the security services have now been forced to disclose the policies which they claim are in place to protect the confidential communications between lawyers and their clients. We can see why they were so reluctant to disclose them. They highlight how the security services instruct their staff to flout these important principles in a cavalier way. We hope the tribunal will tell the government in no uncertain terms that this conduct is completely unacceptable."
Hugh Tomlinson QC, for Amnesty International, who are involved in the case, said: "The guidance [revealed in the documents] contemplates the systematic invasion by state agents of a right in English common law which is absolute."
Rachel Logan, Amnesty UK's legal adviser, said: "We now know that the government sees nothing wrong in routinely spying on the confidential communication between lawyers and clients. This clearly violates an age-old principle of English law : that the correspondence between a person and their lawyer is confidential. It could mean, amazingly, that the government uses information they have got from snooping on you, against you, in a case you have brought."
Officials believe the documents set out safeguards to ensure legal privilege is respected by the intelligence agencies. The government says the Interception Code of Practice requires that an additional level of scrutiny should be applied in cases where that legally privileged communications might be intercepted.
The government said: "We do not comment on ongoing legal proceedings." Elizabeth Knight, legal director of the Open Rights groups, said: "We already know that Ripa [Regulation of Investigatory Powers Act] allows the security services to intercept all external' communications, breaching our right to privacy. By undermining journalistic and legal privilege, Ripa also threatens our rights to free speech and a fair trial. The government cannot keep defending these abuses. We need urgent reform of this broken law now. This disclosure demonstrates the need to introduce judicial authorisation."

[Magda Hassan]

06 November 2014

Government forced to release secret policies on surveillance of lawyers

The Government has been forced to release secret policies which show that GCHQ and MI5 have for years advised staff that they may "target the communications of lawyers," and use legally privileged material "just like any other item of intelligence."
The disclosure comes in response to a case brought in the Investigatory Powers Tribunal (IPT) by the al Saadi and Belhadj families, who were subjected to rendition and torture in a joint CIA-MI6 operation. Both families assisted by legal charity Reprieve and solicitors Leigh Day have brought litigation about the kidnappings. The families allege that, by intercepting their privileged communications with Reprieve and Leigh Day, the Government has infringed their right to a fair trial.
Legal privilege is a central principle of British law, which protects confidential communication between a lawyer and their client. If the Government is able to access such communications, it hands itself an unfair advantage in court.
The Government documents show that there is a real risk that private lawyer-client material intercepted by the agencies has been allowed to "taint" the case brought in the High Court against the Government by the victims of the 2004 rendition operation, which included four children aged 12 and under and a pregnant woman among its victims.
Because of a lack of effective information barriers between the intelligence officers carrying out interception and the agencies' legal staff, Reprieve is concerned that Government lawyers involved in the High Court case may have seen confidential communications between the families and their legal team. The documents show that MI5 only put in place such barriers in January this year once the IPT claim was already underway and a judicial review was threatened while MI6 has almost no guidance for its officers on the interception and use of legally privileged material.
Although there is no indication that the documents released today contain any national-security sensitive material, the Government had previously claimed on three separate occasions that they could not disclose them on this basis before agreeing to do so last week.
Cori Crider, a director at legal charity Reprieve and US counsel for the Belhadj and al Saadi families said:
"It's now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years. Today's question is not whether, but how much, they have rigged the game in their favour in the ongoing court case over torture.
"The documents clearly show that MI5's and GCHQ's policies on snooping on lawyers have major loopholes. And MI6's policies' are so hopeless they appear to have been jotted down on the back of a beer mat. This raises troubling implications for the whole British justice system. In how many cases has the Government eavesdropped to give itself an unfair advantage in court?"
Richard Stein, Partner at Leigh Day said:
"After many months' resistance, the security services have now been forced to disclose the policies which they claim are in place to protect the confidential communications between lawyers and their clients. We can see why they were so reluctant to disclose them. They highlight how the security services instruct their staff to flout these important principles in a cavalier way. We hope the Tribunal will tell the government in no uncertain terms that this conduct is completely unacceptable."
ENDS

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[David Guyatt]

As usual these days, I might add.

Court rejects attempt to allow Edward Snowden into Germany

Opposition parties wanted Snowden to give evidence in person to a parliamentary committee investigating NSA espionage

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• Kate Connolly in Berlin
  
  
• The Guardian, Friday 12 December 2014 12.55 GMT
  

Edward Snowden. Photograph: Guardian

Attempts by opposition parties in Germany to bring Edward Snowden to Berlin to give evidence about the NSA's operations have been thwarted by the country's highest court.
The Green and Left parties wanted the whistleblower to give evidence in person to a parliamentary committee investigating espionage by the US agency, but Germany's constitutional court ruled against them on Friday.
The government has argued that Snowden's presence in Germany could impair relations with the US and put it under pressure to extradite him.
It has suggested sending the committee which consists of eight MPs to interview him in Moscow, where Snowden is living in exile. Snowden has said through a lawyer that he is prepared to speak to the panel only if permitted to do so in Germany.
Opposition MPs have been vocal about their wish for Snowden to be granted asylum in Germany, where anger towards the NSA and sympathy for the whistleblower has been particularly high.
If Snowden were to be allowed to enter Germany, the clamour for him to be able to stay would be strong and resistance from the government would be likely to be met with civil unrest.
Support for Snowden in Germany reached a peak after allegations came to light that Angela Merkel's phone was bugged. But Germany's top public prosecutor announced this week that an investigation had so far failed to find any firm evidence for the claim.
Harald Range, who launched an investigation in June, did not rule out that it could be true, but said: "The document presented in public as proof of an authentic tapping of the mobile is not an authentic surveillance order by the NSA. There is no proof right now that could lead to charges that Chancellor Merkel's phone connection data was collected or her calls tapped."
Range said the investigation would continue. He said that neither Snowden, the reporter for Spiegel magazine who was in possession of a document that appeared to be evidence of tapping, nor Germany's foreign intelligence agency, the BND, had presented him with any other details.
The affair caused considerable tension between Berlin and Washington. German attempts to secure a no-spying agreement with the US were unsuccessful. Washington did not seek to deny the charges and assured Merkel that it would not tap her phone in future.

[Michael Barwell]

They don't want a secure society, they want a secured society.

[David Guyatt]

They don't want a secure society, they want a secured society.

Unquestionably.