FacebookTwitterRedditEmail

The Legal Claim Against Surveillance

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

More articles by:

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

bernie-the-sandernistas-cover-344x550
September 16, 2019
Sam Husseini
Biden Taking Iraq Lies to the Max
Paul Street
Joe Biden’s Answer to Slavery’s Legacy: Phonographs for the Poor
Paul Atwood
Why Mattis is No Hero
Jonathan Cook
Brexit Reveals Jeremy Corbyn to be the True Moderate
Jeff Mackler
Trump, Trade and China
Robert Hunziker
Fukushima’s Radioactive Water Crisis
Evaggelos Vallianatos
The Democrats and the Climate Crisis
Michael Doliner
Hot Stuff on the Afghan Peace Deal Snafu
Nyla Ali Khan
Spectacles of the Demolition of the Babri Masjid in Uttar Pradesh and the Revocation of the Autonomous Status of Kashmir
Stansfield Smith
Celebrating 50 Years of Venceremos Brigade solidarity with the Cuban Revolution
Tim Butterworth
Socialism Made America Great
Nick Licata
Profiles in Courage: the Tories Have It, the Republicans Don’t
Abel Prieto
Cubanness and Cuban Identity: the Importance of Fernando Ortiz
Robert Koehler
Altruists of the World Unite!
Mel Gurtov
Farewell, John Bolton
Weekend Edition
September 13, 2019
Friday - Sunday
Paul Street
The Age of Constitutional Coups
Rob Urie
Bernie Sanders and the Realignment of the American Left
Anthony DiMaggio
Teaching the “War on Terror”: Lessons for Contemporary Politics
Jeffrey St. Clair
Roaming Charges: They Are the Walrus
T.J. Coles
Jeremy Corbyn: Electoral “Chicken” or Political Mastermind?
Joseph Natoli
The Vox Populi
Sasan Fayazmanesh
The Pirates of Gibraltar
John Feffer
Hong Kong and the Future of China
David Rosen
The Likely End to Roe v. Wade?
Ishmael Reed
When You Mess With Creation Myths, the Knives Come Out
Michael Hudson
Break Up the Democratic Party?
Paul Tritschler
What If This is as Good as It Gets?
Jonah Raskin
Uncensored Tony Serra: Consummate Criminal Defense Lawyer
Ryan Gunderson
Here’s to the Last Philosophes, the Frankfurt School
Michael T. Klare
The Pompeo Doctrine: How to Seize the Arctic’s Resources, Now Accessible Due to Climate Change (Just Don’t Mention Those Words!)
Luke O'Neil
I Would Want To Drink Their Blood: God Will Punish Them
Louis Proyect
The Intellectual Development of Karl Marx
Tom Clifford
How China Sees the World
Kelsey Hawkins-Johnson – Negin Owliaei
Who’s Burning the Amazon?
Yasin Khan
Rideshare Drivers are Employees, Not Contractors
Ralph Nader
Big Business Lies Taught a Watchful Donald Trump
Binoy Kampmark
The Sacking of John Bolton
Andrea Maki
Wild Love Preserve Founder: Our Path Forward
Jeremy Kuzmarov
The War in Eastern Ukraine May be Coming to an End But Do Any Americans Care?
Tim Davis – Stan Grier
Protect the Sacred Grizzly Bear, Follow Those Who Know Grandmother Earth
Clark T. Scott
Super-Delegated and Relegated
Jim Britell
Lessons From America’s Greatest Grassroots Campaigns 
Howie Hawkins
Workers Need More Rights and Economic Democracy
Ramzy Baroud
‘Justice is Indivisible’: Screams of Israa Ghrayeb Should Be Our Wake-up Call
Jill Richardson
It’s Not About Your Straws and Your Light Bulbs
FacebookTwitterRedditEmail