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Tribunal rules that GCHQ mass surveillance is not illegal

Posted by on December 6, 2014.

When British jurisprudence is caught between a rock (the wishes of government) and a hard place (the law), it resorts to some wonderful contortions to escape. The rock is immovable; but luckily the law is malleable — and with one deft twist the beaks are free.

Privacy International (PI) and others had sought a ruling from the Investigatory Powers Tribunal that GCHQ’s mass surveillance (Tempora) is illegal. This would be a test for the beaks. It is obviously illegal — but the entire British Honours System is at stake here. If the beaks failed to reconcile the rock and hard place, their future involvement in the Honours System would be undone. Fail it they dare not and fail it they did not.

The problem is that the British government’s response to accusations on intelligence activity is to ignore it with the phrase, ‘we neither admit nor deny anything’. That makes their operations secret. But to be legal, they have to be public. Therefore, without the beaks’ legal contortions, GCHQ’s mass surveillance is automatically illegal.

But — and can you believe this — Edward Snowden’s revelations sort of made GCHQ’s practices public. It’s still not quite enough, so the beaks went further and invented a new legal term: “signposted”. The intelligence agencies practices no longer have to be made public — just sufficiently signposted. Snowden’s exposure of GCHQ’s illegal behaviour ultimately signposted that behaviour enough to make it legal.

We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed.
Investigatory Powers Tribunal ruling on Tempora

Before today, ‘signposting’ has not been a legal term.

signpost legal term -- no!

Laws, like rules, are made to be bent — but only by the judges

Now it is. Job done and the Honours System preserved.

In reality, this was never going to be an important hearing. Privacy International always knew that the IPT would find in favour of the government. It is merely a necessary step: before PI can take the matter to the European Court, it has to exhaust national options. This it has done and will now move to the less Brit-friendly European Court. Now it will be a race — can PI get a European ruling before Cameron removes Britain from the EC’s jurisdiction?

see also: Privacy International’s new complaint against GCHQ is like pissing in the wind (BTW, we told you so).

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