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Intelligence services 'creating vast databases' of intercepted emails

Government told internet surveillance tribunal that gathering material 'may be permissible', say human rights groups

• Owen Bowcott, legal affairs correspondent
  
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• The Guardian, Friday 18 July 2014 19.19 BST
  
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The headquarters of GCHQ in Cheltenham. Human rights groups are bringing a case against it and other intelligence services over internet monitoring. Photograph: Alamy

The intelligence services are constructing "vast databases" out of accumulated interceptions of emails, a tribunal investigating mass surveillance of the internet has been told.
The claim emerged during a ground-breaking case against the monitoring agency GCHQ, MI5, MI6 and the government at the investigatory powers tribunal (IPT).
Matthew Ryder QC, for Liberty and other human rights groups, told a hearing the government had not disputed "that databases gathering material that may be useful for the future is something that may be permissible under Ripa [the Regulation of Investigatory Powers Act2000]".
If they are deemed under the legislation to be "necessary", he said, that may mean their use "can stretch far into the future".
Ryder added: "The government is now conceding it can gather such databases."
The court heard that the intelligence services might be accumulating databases in that way about persistent security threats. Lawyers for the government would not confirm nor deny this but conceded it would be permissible under Ripa.
Developing such a capability, human rights groups argue, was explicitly rejected by parliament when the communications data bill, nicknamed the snooper's charter, was defeated last year.
Ryder said: "There must be accessible guidelines in relation to how both the content and communications data [of any email] are treated … The [government] is setting up vast databases of all our communications that have been collected.
"What we may have now is a database system which is far beyond what was envisaged. Is there sufficient constraint in law if that is what is going on?"
Ben Jaffey, for Privacy International, said Ripa had ceased providing the significant safeguards it once guaranteed against interception of communications without an individual warrant.
"A statute which in 2000 afforded quite strong protection no longer affords such protection," Jaffey said. The law has stayed the same, he added, but had lost its force because more and more internet traffic involved being routed through foreign websites and online servers.
The government's senior security advisor, Charles Farr, has submitted a lengthy defence of interception surveillance policy, explaining that emails, online searches and communications that touch foreign servers are deemed to be external, not internal, and so do not require an individual warrant to be intercepted.
Jaffey said: "[That fact] was kept confidential until Mr Farr's witness statement was produced."
The case has been brought by Privacy International, Liberty, Amnesty International, the American Civil Liberties Union and other overseas human rights groups following revelations by the US whistleblowerEdward Snowden.
It is the first of dozens of GCHQ-related claims to be examined by the IPT, which hears complaints against British intelligence agencies and government bodies that carry out surveillance under Ripa.
The civil liberties organisations are concerned that their private communications have been monitored under GCHQ's electronic surveillance programme Tempora, whose existence was revealed by Snowden. They also complain that information obtained through theNSA's Prism and upstream programmes may have been shared with the British intelligence services, side-stepping protections provided by the UK legal system.
The five-day hearing has fought its way through the dense undergrowth of overlapping clauses and subsections of Ripa. One member of the tribunal bench described the act as a "difficult if not impenetrable statute". James Eadie, QC, for the government, admitted that it is "convoluted legislation".
The different levels of regulatory protection afforded to those who communicate only inside the UK and those whose emails are deemed to go overseas as they roam the internet has raised concerns over whether the legislation might be discriminatory.
If the IPT rejects the NGOs' complaints, they may take their claims to the European court of human rights in Strasbourg.
The IPT has been asked by government lawyers to hold a secret hearing, from which the claimants and the media will be excluded, before the tribunal delivers its judgment.
That session would consider the secret codes of practice and internal arrangements regulating the way in which MI5, MI6 and GCHQ staff carry out interceptions. Government lawyers say "they cannot be safely put into the public domain".
Written submissions for the government have accepted that, under the "alleged" Tempora operation: "The claimants' [the civil liberty organisations'] communications might in principle have been intercepted in the UK … and at least some of those intercepted communications might in principle have been read, looked at or listened [to]."
Judgment was reserved.

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