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Why it’s time for citizens to take direct action over GCHQ

gchq-kelseyBy Simon Davies

I am making an appeal to everyone who has used a webcam over Yahoo in the past six years to consider making a formal complaint to UK police over unlawful interception by Britain’s communications intelligence agency, GCHQ.

This action has become necessary because of the continuing refusal by the British government to bring accountability or reform to the agency.

This action has become necessary because of the continuing refusal by the British government to bring accountability or reform to the agency.

Around a month ago the Privacy Surgeon submitted a formal plea to the Attorney General of England & Wales, Dominic Grieve, requesting that he use his prerogative as chief law officer to refer GCHQ for police investigation over evidence that it violated criminal law. The submission was made in consultation with legal experts.

Recent disclosures by Edward Snowden indicated that the agency had for some years indiscriminately and unlawfully intercepted the webcam traffic of millions of Yahoo users. The interception was untargeted, meaning that any Yahoo customer operating via Britain’s public communications systems could have been intercepted.

The A-G’s office initially tried to deflect my request by arguing that it was invalid and that no such prerogative existed (in spite of the letter setting out the precedent). After a further exchange the office agreed to pass the request onto a legally qualified staff member. Since then, there has been total silence.

Given the gravity of the alleged violations – together with the fast-track legal action by Big Brother Watch et al – there is some urgency that the interception be formally investigated. Such an action will inform legal challenges and provide a sharper insight into the legality of GCHQ’s operations.

The submission had set out in detail a widespread concern that the spy agency routinely violated section 1 of the UK’s Regulation of Investigatory Powers Act, which establishes a criminal offence for unauthorised interception of communications.

The activity – named “Optic Nerve” – was a programme of almost random access and storage of webcam images of a substantial number – possibly millions – of Yahoo customers.

It would appear that the required section 42 authorisation was not issued by – or sought from – the Secretary of State. If this situation is verified, GCHQ officials would be liable for prosecution. 

The failure of the Attorney General to fulfil his duty as public guardian of the law is surely the last straw in this indefensible saga.

A referral to the police by the Attorney General would not be a precedent. In 2009 the case of Binyam Mohamed, a former British Guantanamo detainee, was investigated by police after a request by Grieve’s predecessor, Baroness Scotland. While that matter centred on claims of torture conducted by an MI5 officer, the two cases are in some respects similar, in particular the national security aspects and the operational involvement of the United States.

As the submission explained, in normal events I would have brought this matter directly to the attention of police. Two conditions dissuaded me from this course of action. First, the Attorney General has special discretionary powers on issues concerning investigations relating to national security. Second, the police have historically failed to prosecute large entities over violations of interception law.

The submission outlines in some detail why alternative complaint mechanisms – including the police, the Information Commissioner, the Interception of Communications Commissioner and the Investigatory Powers Tribunal – are inadequate to deal with this matter.

My view is that aggrieved Yahoo users who feel action is needed should take matters into their own hands. It is not necessary for complainants to establish that they have personally been affected -the legal conditions stand regardless of the circumstances of the complainant. Nor is it necessary to be a UK citizen or resident. RIPA appears to be neutral about geographical territory. It is, however, probably useful to submit this background briefing when approaching the police.

The UK government has remained silent about the transgressions of its spy agencies. The failure of the Attorney General to fulfil his duty as public guardian of the law is surely the last straw in this indefensible saga.

And please do keep the Privacy Surgeon informed of your progress. If you wish, we’ll let readers know the developments.