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Surveillance: GCHQ, NSA named in new legal challenge

AP Photo/Mark Lennihan

This statement was originally published on hrw.org on 14 September 2015.

Human Rights Watch and three anonymous individuals filed a complaint today over surveillance by the United Kingdom. The complaint by Human Rights Watch to the Investigatory Powers Tribunal (IPT) charges its rights had been violated by the Government Communications Headquarters (GCHQ) in intercepting, using, and retaining its communications and in particular, sharing them with the US National Security Administration (NSA).

The case comes on the heels of a finding by the tribunal that the UK had unlawfully retained communications of Amnesty International.

"If GCHQ has been collecting Amnesty International's communications, it is nearly certain that ours have been intercepted as well," said Dinah PoKempner, general counsel at Human Rights Watch. "Mass-scale surveillance and data swapping without suspicion or independent oversight pose a grave threat to the lives, safety, and work of human rights defenders, researchers, journalists, lawyers, and their sources. We are bringing this case because confidentiality of communications is critical for those who work to protect human rights and expose abuses and war crimes."

The tribunal ruled in February 2015 that prior to December 2014, GCHQ had accessed data from the NSA in violation of the right to privacy and free expression. Yet despite billions of records being shared every day between the NSA and GCHQ, the tribunal has not subsequently told any claimant that their communications were part of those unlawfully shared. Human Rights Watch and the other complainants are concerned in particular that the tribunal may have interpreted the term "share" much more narrowly than the ordinary meaning of the word, leading to determinations that GCHQ is not "sharing" data unlawfully.

"Five Eyes" countries - Australia, Canada, and New Zealand in addition to the US and UK - freely share information, with GCHQ able to access data from the NSA without a warrant. Although the tribunal decided that prior to December 2014, GCHQ had unlawfully shared data with the NSA, it said that since that time, sharing had been lawful due to public disclosures of minimal safeguards. The adequacy of those safeguards is likely to be challenged at the European Court of Human Rights.

Privacy International has created a web platform, called "Did the GCHQ Spy on You?," which aims to help the more than 25,000 people who have expressed interest in filing claims of unlawful surveillance with the IPT.

Human Rights Watch has also joined as plaintiff in cases against the US government for surveillance of its communications in the course of mass surveillance programs, including First Unitarian Church of Los Angeles v. NSA, Wikimedia v. NSA, and Human Rights Watch v. DEA.

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