The Liberty challenge

Liberty & Others vs. the Security Service, SIS, GCHQ, IPT/13/77/H

At issue in this action before the Investigatory Powers Tribunal (“IPT”) was whether Articles 8, 10 or 14 of the European Convention on Human Rights (ECHR) were violated by the Tempora program, which was described in the documents leaked by Snowden as involving bulk interception by the GCHQ of telecommunications and associated metadata transmitted on overseas cables to the UK. Also at issue was whether Articles 8 or 10 of the ECHR were violated by the UK Intelligence Services’ sharing of telecommunications and associated metadata obtained by the NSA through its Prism or Upstream programs.

On December 5, 2014, the IPT issued a Judgment upholding the legality of the Tempora program. This was followed by a Judgment on February 6, 2015 in which the IPT ruled against the Intelligence Services for the first time in its fifteen-year history. The IPT held that until its December 5 and February 6 Judgments published certain disclosures that the Intelligence Services made after hearings in the case, the UK’s acquisition, use and disclosure of information that the NSA obtained through its Prism and Upstream programs violated Articles 8 and 10 of the ECHR. The claimants’ victory was limited, however, in that the IPT held that once the disclosures were published, the UK’s sharing of information obtained through the NSA’s Prism and Upstream programs conformed to the ECHR.

The initial complaint in the case was brought on June 25, 2013 by Liberty, which announced on November 11, 2013 that it would also act on behalf of the American Civil Liberties Union (“ACLU”), Canadian Civil Liberties Association, Egyptian Initiative for Personal Rights, Hungarian Civil Liberties Union, Irish Council for Civil Liberties and the South African Legal Resources Centre. On July 8, 2013, Privacy International filed a legal challenge in the IPT, which Pakistani organization Bytes For All joined on January 9, 2014. On December 9, 2013, Amnesty International filed a claim.

From July 14-18, 2013, the IPT took the highly unusual step of holding a public hearing on the claimants’ challenges. Since the UK government invoked its longstanding “neither confirm nor deny” (NCND) policy in regard to the operation of the Intelligence Services, the tribunal heard the challenge on the basis of “agreed assumed facts,” with the exception of (i) the NSA’s public admission of the existence of the Prism and upstream data collection programs and (ii) confirmation of the NSA’s transmission of information obtained via Prism to the GCHQ. Judgment, Liberty & Others vs. the Security Service, SIS, GCHQ, IPT/13/77/H (Dec. 5, 2014) (“Dec. 5 Judgment”) paras. 4(i),13.

The subsequent closed and open hearings before the IPT and the Judgments of December 5, 2014 and February 6, 2015 can best be understood by separately considering (i) the Prism or intelligence sharing issue and (Ii) the Tempora or s. 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) issue. With regard to both issues, the IPT assumed that its reasoning in regard to Article 8 of the ECHR applied equally well to Article 10 of the ECHR.

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