A UK tribunal set up to investigate complaints against public authorities’ spying methods has ruled that “computer network exploitation” (CNE), or hacking, carried out by the Government Communications Headquarters (GCHQ) is legal and not in breach of the European Convention on Human Rights (ECHR). The case was brought by Privacy International and seven internet service providers based abroad but with a large customer base in the UK.
In the hearing conducted last year by the Investigatory Powers Tribunal (IPT), GCHQ admitted to carrying out persistent hacking of electronic devices in both the UK and abroad. Also known as “equipment interference”, this gives authorities the power to obtain data from phones and computers by using a range of techniques including remote installation of software to extract information.The case before the IPT considered whether such activity is permissible under “thematic” warrants that do not identify targeted individuals. In its ruling the IPT weighed up the competing interests of the intelligence agencies’ needs to safeguard the public and individual privacy and freedom of expression rights, and emphasised the requirement to strike a balance between these competing interests. Ultimately the IPT concluded that the security services’ new equipment interference code in conjunction with the eventual outcome of the Investigatory Powers Bill was sufficient to deduce that a proper balance is being struck.
The judgment also held that the procedure under which warrants are issued to allow the agency to carry out its equipment interference in Britain is compatible with the ECHR. The ruling does emphasise that a warrant must be as specific as possible with regard to the property it covers, but it need not be defined by reference to named or identified individuals. With regard to GCHQ activities conducted outside the UK, the Tribunal stated that there may be circumstances in which an individual can claim that there has been a breach of rights under articles 8 and 10 of the ECHR, relating to family and private life rights and freedom of expression respectively. However, this in itself does not mean the legal regime regulating these activities is non-compliant with the Convention.
Click here to read the full judgment of the IPT.
Click here to read PILA’s article on an earlier ruling of the Tribunal concerning the monitoring MP communications.