The Legal Claim Against Surveillance

by

People have a fundamental right to communicate with each other free from pervasive government surveillance. The right to communicate, and the ability to choose to do so secretly, is essential to the open exchange of ideas which is a cornerstone of a free society.

– Devin Theriot-Orr, Riseup.net, July 2014

Can you take a signals intelligence agency to court, or at the very least, something approximating to it? Various bodies have been putting their minds together, considering the formidable obstacles, the endless riddling hoops. Last week, they lodged a claim before Britain’s Investigatory Powers Tribunal against both the UK’s GCHQ and the Foreign and Commonwealth Office (FCO), arguing that the former’s targeting of Internet service providers was illegal, destructive and retarding of the goodwill such providers rely upon.

Ultimately, such interference on the part of GCHQ cripples the very functioning of the Internet, a true violation of associated freedoms of use. As Privacy International’s Deputy Director, Eric King, explains, “These widespread attacks on providers and collectives undermine the trust we all place on the internet and greatly endangers the world’s most powerful tool for democracy and free expression.”

The claimants are a varied, international assortment, though it is worth noting that they are far from the premier league of ISPs. The collective exudes internet activism and a bookish but important concern for liberties, including RiseUp (US), GreenNet (UK), Greenhost (Netherlands), Mango (Zimbabwe), Jinbonet (South Korea), May First/People Link (US), the Chaos Computer Club (Germany), and Privacy International. They are using the services of Bhatt Murphy lawyer Shamik Dutta, and Blackstone Chamber’s Ben Jaffey and Tom Cleaver.

The specific legal details won’t make the legal layman’s eyes glaze over. They should, however, chill and anger the blood in equal measure. They have privacy implications not merely for the users of the ISPs in question, but the staff who work for those companies.

The alleged breaches of such conduct on the part of GCHQ suggest something fundamental to the everyday user of ISPs: the violation of Article 1 of the First Protocol, and Articles 8 and 10 of the European Convention on Human Rights (ECHR). Such provisions, in addition to affirming rights of free speech and privacy, make it clear that any interference is only warranted “in accordance with the law”, “prescribed by law”, or “subject to the conditions provided for by the law” and must be consistent with the principles of a democratic society and proportionate to such ends.

The source of the claim lay in articles published in The Intercept and Der Spiegel. Specific instances include the targeting of employees of Belgacom, who were affected by malware via an attack termed “Quantum Insert”. The basis of that was, unsurprisingly, to gain access to material pertaining to the infrastructure network. According to the report, GCHQ were “on the verge of accessing the Belgians’ central roaming router.” In doing so, the agency would have been able to stage complex “Man in the Middle” (bypassing encryption software) attacks on smartphone users.

The viral and biological metaphor here is never far away – much of the capabilities which concern the claimants centre on the rendering of communications infrastructure vulnerable to infection. Denude the network; gather the information. “Man on the Side”, for instance, involves the covert injection of data into, as Privacy International’s statement explains, “existing data streams in order to create connections that will enable the targeted infection of users.”

According to the claim, the attack of network infrastructure “enables GCHQ to undertake a range of highly invasive mass surveillance activities, including the application of packet capture (mass scanning of internet communications); the weakening of encryption capabilities; the observation and redirection of internet browsing activities; the censoring or modification of communications en route; and the creation of avenues of targeted infection of users’ devices.”

Again, GCHQ has shown that the banal and the irrelevant are worthy of its intrusive efforts. Data is data, and it must be snatched, however disproportionate the measures. As the claim states, “What is more concerning is that the conduct set out… has no proper justification. Each of the Claimants is a responsible and professional internet service provider. None has any interest in supporting terrorist activity or criminal conduct.” Discrimination has little to do with it, for the modern fetish of mass surveillance is that something, somewhere, is relevant.

As Cedric Knight of GreenNet explained to RT (Jul 3), “It seems that GCHQ has been deliberately targeting the ordinary technical staff who tried to protect network security, to try to find personal weaknesses and the weakness in the security systems they put in place.”

There are big questions that remain, those teething problems of taking public interest cases before a tribunal without necessarily proving tangible damage. The claimants admit that they may or may not have been affected, but that the interactive nature of the Internet and such surveillance suggests a high probability that they have been.

This has been the greatest boon for intelligence services – that hallowed insistence that those who seek judicial remedy prove actual harm. Then there is the question about how far a body such as the IPT will go. According to Knight, the IPT “doesn’t give much details of its investigations if any at all.”

GCHQ may get a slap on its capacious wrist, but that it should get a slap at all might be a miracle. The claimants are aiming high: a declaration that GCHQ’s intrusive conduct is unlawful; an order of destruction of “any unlawfully obtained material” and an injunction restraining further unlawful conduct. As Knight argues, a first step in such an action is to have an open hearing of such claims at all.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Like What You’ve Read? Support CounterPunch
Weekend Edition
August 28-30, 2015
Randy Blazak
Donald Trump is the New Face of White Supremacy
Jeffrey St. Clair
Long Time Coming, Long Time Gone
Mike Whitney
Looting Made Easy: the $2 Trillion Buyback Binge
Alan Nasser
The Myth of the Middle Class: Have Most Americans Always Been Poor?
Rob Urie
Wall Street and the Cycle of Crises
Andrew Levine
Viva Trump?
Ismael Hossein-Zadeh
Behind the Congressional Disagreements Over the Iran Nuclear Deal
Lawrence Ware – Marcus T. McCullough
I Won’t Say Amen: Three Black Christian Clichés That Must Go
Evan Jones
Zionism in Britain: a Neglected Chronicle
John Wight
Learning About the Migration Crisis From Ancient Rome
Andre Vltchek
Lebanon – What if it Fell?
Charles Pierson
How the US and the WTO Crushed India’s Subsidies for Solar Energy
Robert Fantina
Hillary Clinton, Palestine and the Long View
Ben Burgis
Gore Vidal Was Right: What Best of Enemies Leaves Out
Suzanne Gordon
How Vets May Suffer From McCain’s Latest Captivity
Robert Sandels - Nelson P. Valdés
The Cuban Adjustment Act: the Other Immigration Mess
Uri Avnery
The Molten Three: Israel’s Aborted Strike on Iran
John Stanton
Israel’s JINSA Earns Return on Investment: 190 Americans Admirals and Generals Oppose Iran Deal
Bill Yousman
The Fire This Time: Ta-Nehisi Coates’s “Between the World and Me”
Scott Parkin
Katrina Plus Ten: Climate Justice in Action
Michael Welton
The Conversable World: Finding a Compass in Post-9/11 Times
Brian Cloughley
Don’t be Black in America
Kent Paterson
In Search of the Great New Mexico Chile Pepper in a Post-NAFTA Era
Binoy Kampmark
Live Death on Air: The Killings at WDBJ
Gui Rochat
The Guise of American Democracy
Emma Scully
Vultures Over Puerto Rico: the Financial Implications of Dependency
Chuck Churchill
Is “White Skin Privilege” the Key to Understanding Racism?
Kathleen Wallace
The Id(iots) Emerge
Andrew Stewart
Zionist Hip-Hop: a Critical Look at Matisyahu
Gregg Shotwell
The Fate of the UAW: Study, Aim, Fire
Halyna Mokrushyna
Decentralization Reform in Ukraine
Norman Pollack
World Capitalism, a Basket Case: A Layman’s View
Sarah Lazare
Listening to Iraq
John Laforge
NSP/Xcel Energy Falsified Welding Test Documents on Rad Waste Casks
Wendell G Bradley
Drilling for Wattenberg Oil is Not Profitable
Joy First
Wisconsin Walk for Peace and Justice: Nine Arrested at Volk Field
Mel Gurtov
China’s Insecurity
Mateo Pimentel
An Operator’s Guide to Trump’s Racism
Yves Engler
Harper Conservatives and Abuse of Power
Michael Dickinson
Police Guns of Brixton: Another Unarmed Black Shot by London Cops
Ron Jacobs
Daydream Sunset: a Playlist
Charles R. Larson
The Beginning of the Poppy Wars: Amitav Ghosh’s “Flood of Fire”
David Yearsley
A Rising Star Over a Dark Forest
August 27, 2015
Sam Husseini
Foreign Policy, Sanders-Style: Backing Saudi Intervention
Brad Evans – Henry A. Giroux
Self-Plagiarism and the Politics of Character Assassination: the Case of Zygmunt Bauman