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The UK government finally had to admit to the surveillance it’s been doing all along Photograph: Alamy
The UK government finally had to admit to the surveillance it’s been doing all along Photograph: Alamy

A court managed what the complicit UK press couldn't: force GCHQ to tell the truth

This article is more than 9 years old
Trevor Timm

The papers that failed to cover their own government’s illegal surveillance program should be ashamed: they helped keep many GCHQ activities secret

A UK court vindicated Edward Snowden’s whistleblowing on Friday by ruling that the secrecy surrounding one of the programs he exposed was, in fact, illegal. The decision is more evidence that not only were the Snowden revelations necessary and justified, but are also slowly forcing changes in both US and UK, even as both governments fiercely resist.

In a stunning ruling, the Investigatory Powers Tribunal (IPT) – which oversees (and usually rubber stamps) Britain’s spy agencies – declared that the intelligence-sharing rules between the NSA and GCHQ (Britain’s NSA equivalent and partner-in-crime) governing their mass surveillance program violated UK human rights laws because they were kept secret for so long.

The IPT is one of Britain’s most secretive and deferential courts, which makes this ruling so particularly stinging. And the only reason the surveillance program is currently lawful is because the plaintiffs – Privacy International and a coalition of other groups – forced GCHQ to reveal more of their alleged rules to the public in the course of the case, which itself all stems from the reporting on the Snowden documents.

Now that the some of the secrecy surrounding the spying program has finally been declared illegal, this should have huge implications for both the British government and many members of the British media, who purposefully ignored the clearly illegal GCHQ mass surveillance program for so long (though the chances of either admitting they were wrong even in the face of this ruling is slim).

The complicit British media (with only a few exceptions) refused to cover the GCHQ story at all unless they were called in to act as public relations agencies for the government by printing fear-mongering stories claiming that anyone reporting on the issue of privacy was just helping terrorists and pedophiles.

Snowden once rightly called the UK media’s coverage of the GCHQ story “a disservice to the public.” Those papers that failed to cover their own government’s illegal surveillance program should be particularly embarrassed today, given that they were not only complicit in keeping much of GCHQ’s activities secret, but also assisted GCHQ in maintaining its illegality.

The UK government’s own staggering chutzpah was on full display in Downing Street’s bizarrely positive reaction to the ruling: in one breath, they claimed GCHQ doesn’t engage in “mass surveillance”; in another, they bragged about how their “bulk interception” program is perfectly lawful now that their previously secret rules are public. (Good luck sorting out the difference.)

But Carly Nyst of Privacy International explained why this is a landmark ruling:

Not once have the spooks been taken to task for overstepping the lawful boundaries of their conduct. Not a single British spy has been held accountable for mass surveillance, unlawful spying or snooping on private emails and phone calls.

Until now.

While much of the outcry over the Snowden stories around the world has focused on the NSA, GCHQ has often been much more flagrant in its violations of privacy rights of the world’s citizens. Indeed, Snowden has repeatedly mentioned – including the first time he met with journalists in Hong Kong – that GCHQ’s activities are much worse than the NSA. Reporting since that meeting has revealed GCHQ’s “full intake” tapping of Internet cables, its mass interception of journalists’ emails, its aggressive hacking of non-terrorist groups that are not a threat to the government, and many other disturbind revelations.

Say what you want about the NSA’s misleading statements and obfuscation with the American press (and there’s a lot to say), but the American spy agency has been forced to repeatedly and publicly respond to allegations about its conduct both in Congress and to the press.

GCHQ, in contrast, has arrogantly refused to even address the most outrageous allegations, sticking to the exact same script every single story: “All of GCHQ’s work is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary and proportionate ...”

Well, turns out their framework wasn’t legal – or, at least, it wasn’t until the Snowden documents forced GCHQ to release more information after being dragged into court, thereby creating one. The decision Friday was just the first of potentially dozens of cases that will come before the court, all of which were brought by privacy interest groups, and many of which will hopefully force the court to address the illegality of the actual mass spying conducted by GCHQ on a regular basis.

This case also calls for a re-examination of the British government’s deplorable actions against those who have merely reported on the Snowden stories. They’ve forced the Guardian to destroy a hard drive full of Snowden documents, outrageously detained Glenn Greenwald’s partner David Miranda under the Terrorism Act and threatened Guardian reporters with prosecution for doing their jobs. Until now, the UK government has used vague excuses related to “terrorism” for their authoritarian actions – but now their motives should now be clear to all: they were trying to cover up an illegal program.

It remains to be seen how the court will react, if at all, to future cases. But this should be a warning for both the UK government and the media: the law and even the most obsequious of courts are not on your side. Your citizens aren’t either.

  • This article was amended on 7 February 2015 to correct the name of Privacy International’s Carly Nyst.

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