Britain's top counter-terrorism official has been forced to reveal a secret Government policy justifying the mass surveillance of every Facebook, Twitter, Youtube and Google user in the UK.
This disturbing policy was made public due to a legal challenge brought by Privacy International, Liberty, Amnesty International, the American Civil Liberties Union, Pakistani organisation Bytes for All, and five other national civil liberties organisations.
The statement, from Charles Farr, the Director General of the Office for Security and Counter Terrorism, claims that the indiscriminate interception of UK residents' Facebook and Google communications would be permitted under law because they are defined as 'external communications'.
Farr's statement, published today by the rights organisations, is the first time the Government has openly commented on how it thinks it can use the UK's vague surveillance legal framework to indiscriminately intercept communications through its mass interception programme, TEMPORA.
The secret policy outlined by Farr defines almost all communications via Facebook and other social networking sites, as well as webmail services Hotmail and Yahoo and web searches via Google, to be 'external communications' because they use web-based 'platforms' based in the US.
The distinction between 'internal' and 'external' communications is crucial. Under the Regulation of Investigatory Powers Act ('RIPA'), which regulates the surveillance powers of public bodies, 'internal' communications may only be intercepted under a warrant which relates to a specific individual or address. These warrants should only be granted where there is some suspicion of unlawful activity. However, an individual's 'external communications' may be intercepted indiscriminately, even where there are no grounds to suspect any wrongdoing.
By defining the use of 'platforms' such as Facebook, Twitter and Google as 'external communications', British residents are being deprived of the essential safeguards that would otherwise be applied to their communications - simply because they are using services that are based outside the UK.
Such an approach suggests that GCHQ believes it is entitled to indiscriminately intercept all communications in and out of the UK. The explanations given by Mr Farr suggest that:
- GCHQ is intercepting all communications - emails, text messages, and communications sent via "platforms" such as Facebook and Google – before determining whether they fall into the "internal" or "external" categories
- The Government considers almost all Facebook and other social media communications, and Google searches will always fall within the "external" category, even when such communications are between two people in the UK
- Classifying communications as "external" allows the Government to search through, read, listen to and look at each of them. The only restriction on what they do with communications that they classify as "external" is that they cannot search through such communications using keywords or terms that mention a specific British person or residence.
- Even though the Government is conducting mass surveillance - intercepting and scanning through all communications in order to work out whether they are internal or external - they consider that such interception "has less importance" than whether a person actually reads the communication, which is where the Government believes "the substantive interference with privacy arises".
- The Government believes that, even when privacy violations happen, it is not an "active intrusion" because the analyst reading or listening to an individual's communication will inevitably forget about it anyway.
- The legal challenge is brought following revelations made by Edward Snowden about the UK's global digital surveillance activities. Farr is the government's star witness in the case, which will be heard by the Investigatory Powers Tribunal between 14 and 18 July 2014. Read our arguments here.
In addition to Farr's statement, we are publishing the witness statements from Dr Gus Hosein, Executive Director of Privacy International, and Eric King, Deputy Director of Privacy International. Additional evidence submitted by Privacy International, from Dr Ian Brown, Oxford Internet Institute, and Cindy Cohn, Legal Director of the Electronic Frontier Foundation, can be found here and here.
Eric King, Deputy Director of Privacy International said:
"Intelligence agencies cannot be considered accountable to Parliament and to the public they serve when their actions are obfuscated through secret interpretations of byzantine laws. Moreover, the suggestion that violations of the right to privacy are meaningless if the violator subsequently forgets about it not only offends the fundamental, inalienable nature of human rights, but patronises the British people, who will not accept such a meagre excuse for the loss of their civil liberties."
James Welch, Legal Director of Liberty said:
"The security services consider that they're entitled to read, listen and analyse all our communications on Facebook, Google and other US-based platforms. If there was any remaining doubt that our snooping laws need a radical overhaul there can be no longer. The Agencies now operate in a legal and ethical vacuum; why the deafening silence from our elected representatives?"
Michael Bochenek, Senior Director of International Law and Policy at Amnesty International said:
"British citizens will be alarmed to see their government justifying industrial-scale intrusion into their communications. The public should demand an end to this wholesale violation of their right to privacy."
Shahzad Ahmad, Country Director, Bytes for All
"We've always believed that Tempora enables unlawful profiling of people living outside UK. Now we've come to learn that GCHQ are also subjecting UK residents to this intrusive spying. Such an action by UK intelligence agencies is sheer violation of people's privacy, security, freedom of expression, and assembly. Such attempts by established democracies are setting extremely worrisome precedents for repressive regimes all over the world."