ISPs take legal action against GCHQ

http://www.bbc.co.uk/news/technology-28106815

by shapeshed • 12 years ago

94 8 12 years ago

bbc.co.uk

"While the ISPs taking the action were not directly named in the leaked Snowden documents..."

Does the UK have the same legal concept of "standing" as the US does?

"In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will "imminently" be harmed by the law." [1]

The US government often uses the absence of (or the secrecy of) proof of direct harm to a person or agency to have the complaint quashed before it can ever really be argued.

[1] http://en.m.wikipedia.org/wiki/Standing_(law)

arethuza• 12 years ago

There is a quote in this article (which is actually comparing Scots and English legal systems in this area) suggesting:

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power; and the Courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the Court to an apparent misuse of public power.

http://www.jonathanmitchell.info/2010/06/13/standing-in-publ...

pjc50• 12 years ago

Firstly, the UK doesn't have the same concept of constitutionality.

Secondly, this isn't a normal damages action; have a look at http://www.dataprotectioncompany.co.uk/8-dpc-news-articles/1... . It's a complaint to the relevant tribunal phrased in ECHR language. If the complaint is denied, there's an appeal to the court in Strasbourg. What happens there is harder to predict, but crucially it's in no way part of the UK government.

The full complaint can be found by googling "privacy international hacking case grounds". It references R(Bancoult) http://www.blackstonechambers.com/news/cases/r_bancoult.html , in which Wikileaks was ruled inadmissible, specifically to contradict it by saying that extensive discussion of the spying means it is no longer secret.

It also references the ironically named Liberty v. United Kingdom: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-... which relates to phone hacking back in 1999 under the previous legal regime. It's worth noting that that case (a) found the surveillance unlawful but (b) ordered the UK to ... pay £7500 costs. The new case has a request for an injunction against the UK doing it again. (It shouldn't normally be necessary to enjoin people from doing things once they have been found unlawful, but this is GCHQ we're dealing with)

AlyssaRowan2• 12 years ago

Some of the ISPs in question have been directly targeted by GCHQ operations; pervasive GCHQ operations like TEMPORA and QUANTUM affect every internet user that transits through an affected point. That is no longer in dispute after Snowden.

I think they have locus to bring these actions for judicial review, yes.

jackgavigan• 12 years ago

Kennedy v UK [1] is of relevance here. In that case, the European Court of Human Rights held that an individual did not necessarily need to prove that his communications had been intercepted in order to complain that a law that permitted such interception was in contravention of Article 8 of the European Convention on Human Rights (i.e. the right to privacy).

However, the Court went on to deny Kennedy's complaint that the UK's Regulation of Investigatory Powers Act (RIPA) violates Article 8 because it was proportionate and fell under the exclusion for "national security, public safety or the economic well-being of the country, [and] for the prevention of disorder or crime". [2]

Also, if you read Theresa May's recent speech on the topic [3], you'll notice that she spends a lot of time talking about warrant approvals, oversight and so on. That is all about safeguards and proportionality, and is taken into account by the Court when they are considering whether a particular law contravenes Article 8.

1: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-...

2: http://en.wikipedia.org/wiki/Article_8_of_the_European_Conve...

3: https://www.gov.uk/government/speeches/home-secretarys-defen...

shapeshed• 12 years ago

Some more information on the legal action here [1]

The action makes repeated reference to the European Convention of Human Rights, and UK lawyers have already questioned [2] the legality of revelations around GCHQ's activities in relation to ECHR.

The current legislation [3] covering GCHQ's activities is from 1994.

1: https://www.privacyinternational.org/blog/stop-breaking-the-...

2: http://www.theguardian.com/uk-news/2014/jan/28/gchq-mass-sur...

3: http://www.legislation.gov.uk/ukpga/1994/13/crossheading/the...

UVB-76• 12 years ago

Great work by all involved.

Shameful that larger ISPs are not taking similar action.

ISPs take legal action against GCHQ

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