Data Protection Report - Norton Rose Fulbright

A recent landmark ruling from the UK’s Investigatory Powers Tribunal has highlighted the growing importance the UK courts place on data privacy and transparency. It is the first occasion that the Investigatory Powers Tribunal has upheld part of a complaint against the intelligence agencies since it was set up in 2000.

On February 6, 2015 the Investigatory Powers Tribunal, a special forum for investigating and resolving complaints relating to the use of covert techniques by public authorities, released a second judgment in the case of Liberty v The Secretary of State for Foreign and Commonwealth Affairs[1]. The case relates to the claims of NGOs, including Privacy International, Liberty and Amnesty International, that UK’s GCHQ’s access to emails and phone records intercepted by the US National Security Agency under the PRISM and Upstream programs breached human rights laws.

Even intelligence services must respect privacy rights

The judgment follows an earlier judgment of December 5, 2014, which held that the security regime that permitted the interception was lawful and compliant with human rights legislation.

While this latest judgment affirms the legality of the current practices of the security services, it holds that, prior to the disclosures made as part of these proceedings, the authorities had provided insufficient information to the public as to the existence of the sharing arrangements under the PRISM and Upstream projects. As a result, members of the general public were not aware that their information could be intercepted in such a manner, meaning GCHQ had breached Articles 8 and 10 of the European Convention on Human Rights, namely the right to respect for private and family life and the right to freedom of expression.

In the wider context of the hearing, the Investigatory Powers Tribunal’s concession is relatively minor, and the second judgment confirms that the intelligence agencies have since rectified noncompliance with UK laws by the subsequent disclosure of the programs and confirmation that the decision to access such information is subject to ministerial authorisation.

The NGOs that brought the case have hailed the breakthrough and, crucially, have vowed to take the case to the European Court of Human Rights, a forum likely to take a stricter view against government action that impinges on individuals’ fundamental rights.

The judgment comes at a particularly tense time for intelligence services. The global risk of terrorism, most recently highlighted by terrorist attacks in Paris in January 2015 and the rise of ISIS, has demonstrated the continuing need for intelligence and surveillance activities. The UK government recently pledged £100m in funding for MI5 and MI6, as well as assuring the agencies that they will receive all the powers necessary to effectively prevent such attacks. The fact that in light of these threats the Investigatory Powers Tribunal has decided that these agencies need to be transparent in their use of personal data and respect individuals’ privacy demonstrates the increasing importance of data privacy in the UK.

Implications for business

Where government organisations that rely on covert operations and widespread surveillance of citizens are cautioned against operating outside of privacy and transparency norms, by analogy it is clear that commercial organisations cannot afford to take the issue of data privacy lightly. There is an increasing risk of sanctions from courts and regulators on businesses that fail to appropriately handle personal data. For example, telecom companies and Internet service providers that are aware that their clients’ communications may be intercepted by government agencies (in the UK, U.S. and other countries) may need to scrutinise surveillance warrants more carefully in the knowledge that their application may be publicly debated and disclosed to the Investigatory Powers Tribunal, and consider the notices they give their customers in respect of the confidentiality of their communications.

[1] Liberty (The National Council of Civil Liberties) & Others v The Secretary of State for Foreign and Commonwealth Affairs & Others [2015] UKIPTrib 13 77-H