An Open Letter To Everyone Who Participated In Our ‘Did GCHQ Illegally Spy On You?’ Campaign
Thank you to those of you who joined our campaign, 'Did GCHQ Illegally Spy on You?'. If you made a claim to the Investigatory Powers Tribunal (IPT) - the court that hears claims about surveillance by public bodies, including the intelligence agencies - to find out if GCHQ has illegally obtained your communications, you will have probably received a letter or email from the IPT by now. We've written a 'Frequently Asked Questions' (FAQ) to help clarify what the ruling means and how you can now progress your claim.
On 16 May 2016, the IPT decided that each person who filed a claim is now required to explain why they are "potentially at risk" of being spied on by the UK Government. The IPT will then use these submissions to determine whether each claim should be investigated in full. We are disappointed that the IPT is asking you to justify your claim in this way. In an age of mass suspicionless surveillance, it makes no sense for you to have to explain why you think you are a suspect before you can even ask for redress!
If you are one of the 663 people who filed a claim with the IPT, please read our FAQs below, which provides further details on the Tribunal's determination and the type of additional information you may wish to submit.
Frequently Asked Questions (FAQ)
Remind me what the 'Did GCHQ Illegally Spy on You?' campaign was about?
The campaign stems from a case brought by Privacy International, Liberty, Amnesty International, and seven other NGO claimants before the Investigatory Powers Tribunal in July 2013. This case is often referred to as 'Liberty/Privacy'. In February 2015, the IPT ruled that British intelligence agencies acted unlawfully in accessing personal communications collected by the U.S National Security Agency (NSA) under its surveillance programs, including those known as PRISM and Upstream. PRISM allowed the NSA to collect data from U.S. companies like Yahoo and Google. Upstream allowed the NSA to intercept data in bulk from hundreds of undersea fibre optic cables. The Liberty/Privacy case also challenged the UK's Tempora program, which similarly collected data in bulk from over 200 cables landing in the UK.
The IPT also decided that GCHQ had unlawfully intercepted the communications of Amnesty International and another NGO claimant, the South African Legal Resources Centre. The IPT is only required to reveal if a claimant has been subjected to surveillance if it concludes that surveillance was unlawful. Therefore, the IPT's "no determination" judgment with respect to the other claimants does not mean that those NGOs, including Privacy International, were not subject to surveillance, only that the IPT did not consider the agencies to have acted unlawfully.
In light of this ruling, we launched the 'Did GCHQ Illegally Spy on You?' campaign. People all over the world are affected by illegal intelligence sharing and bulk surveillance. We therefore encouraged individuals and organisations - no matter where they are located - to submit a claim to the IPT. The claim asks the IPT to determine whether they were subjected to unlawful spying in violation of both UK law (by failing to comply with domestic policies and procedures) as well as the European Convention on Human Rights (ECHR). 663 people from around the world ultimately filed claims with the Tribunal.
What has happened in the 'Did GCHQ Illegally Spy on You?' campaign?
In December 2015, the UK Government requested that the IPT consider only the first 10 claims filed to determine an appropriate response to the remainder. The UK Government also asked the IPT to:
- dismiss all 663 claims on the basis that the IPT's decisions in the Liberty/Privacy case sufficed as a response to all claims; or alternatively
- dismiss the ECHR law aspect of claims by non-UK residents for falling outside ECHR jurisdiction
The IPT accepted the Government's suggestion to consider the first 10 claims. Four of those claims were the 'test claims' that Privacy International worked with pro bono counsel to file. That pro bono representation was extended to two more of the first ten, bringing the total to six test claimants. Together, the test claimants argued that:
- the IPT has a duty to investigate all claims of unlawful surveillance and its prior judgments in the Liberty/Privacy case could not suffice as an answer to the new claims
- the IPT could not dismiss the ECHR law aspect of claims by non-UK residents because when the UK carries out unlawful spying within its own territory, every victim - no matter where they are located - is protected under the ECHR
On 16 May 2016, the IPT ruled that:
- all claimants must submit further information demonstrating that they are "potentially at risk" of unlawful surveillance
- for UK residents, the IPT will determine whether to fully investigate both the UK law and ECHR aspects of their claims
- for non-UK residents, the IPT will determine whether to fully investigate the UK law aspect of their claims and dismiss the ECHR aspect of their claims
The IPT also decided that:
- all six test claimants had satisfied the "potentially at risk" requirement
- four of the six are UK residents and will therefore have both the UK law and ECHR aspects of their claims investigated
- two of the six are non-UK residents and will only have the UK law aspect of their claims investigated
I am a claimant but not one of the test claimants. What happens next?
If you are not one of the test claimants, but submitted a claim to the IPT, you will soon receive or may already have received a copy of the IPT's 16 May 2016 judgment. The judgment provides that the IPT must receive additional submissions from each claimant within 28 days of the judgment's dispatch or his or her claims will be dismissed.
- If you are a UK resident:
The IPT will determine on the basis of those additional submissions whether both the UK law and ECHR aspects of your claim will be fully investigated.
- If you are a non-UK resident:
The IPT will determine on the basis of those additional submissions whether the UK law aspect of your claim will be fully investigated. The ECHR aspect of your claim will be dismissed.
What does the IPT want from me in terms of additional submissions?
In its 16 May 2016 judgment, the IPT explained that an “individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or legislation permitting secret measures only if he is able to show that due to his personal situation, he is potentially at risk of being subjected to such measures.” In other words, the Tribunal seeks additional information regarding your personal circumstances as to why you believe you would be likely to be subject to surveillance by the British intelligence agencies.
We provide below two examples of additional information submitted respectively by an individual and an organisation, who were among the test claimants:
- Example 1: Mr W is an American citizen and lives in the US. He is an IT professional and independent researcher who has worked for both commercial data centres and news organisations. He was responsible for discovering malware in files from Strategic Forecasting (Stratfor), an intelligence firm, leaked to and published by WikiLeaks.
- Example 2: Human Rights Watch ("HRW") is an NGO that reports on human rights violations globally, headquartered in New York, but with operations throughout the world, including major offices in the UK and European capitals. HRW undertakes research and advocacy to further fundamental human rights globally. Through its work, it communicates with its staff as well as external partners, journalists, lawyers, government officials, civil society, alleged perpetrators and victims located around the world. In the UK office, it employs thirty-six people, all of whom communicate regularly with colleagues in the US or in other countries, and many of whom handle extremely sensitive and confidential communications with victims of human rights abuses globally, or who assess or advise on security, in the sense of threats to life and liberty, around the world.
As you can see, the additional information need not be lengthy. It should touch on your personal and professional background, providing any details you think are necessary to help the IPT determine whether you might be "potentially at risk of being subjected" to unlawful surveillance by British intelligence agencies.
What kind of information should I include?
The purpose of mass surveillance is to subject many people to indiscriminate monitoring rather than to target well-defined individuals. Mass surveillance programmes are designed to collect everything and then mine and extrapolate from that information, looking for correlations or patterns, suspicious thoughts or words, tenuous relationships or connections. We believe that you should not have to justify why you might be subject to surveillance under such a programme.
To proceed your claim, however, the IPT has asked you to provide any information about your life that might make you a person of interest to the intelligence agencies. Remember, the agencies do not restrict their surveillance to people who themselves pose a risk to national security. But perhaps you are a foreigner residing in the UK with strong ties to your home country, or you reside in or travel frequently to regions that are of interest to the agencies. Or your social network includes such individuals.
Consider also your professional background. For example, the intelligence agencies subject to surveillance those who control access to information, software developers, system administrators, researchers and their friends and colleagues. A person who works as an IT administrator may be of interest because he or she has administrator access to a computer system. Similarly, a software developer may be of interest as a means of covertly obtaining source code or to backdoor their software.
How will the IPT determine whether I am a UK or non-UK resident?
You may wish to provide whatever details you consider pertinent for the IPT to determine your place of residence. If you reside outside of the UK, you may also wish to indicate whether you have traveled to or spent time in the UK in the past.
Where and how should I send additional submissions?
Your additional submissions should be sent directly - by mail or email - to the IPT.
Will Privacy International be legally representing me in my claim?
Privacy International has not been nor will be legally representing you in your claim. You are responsible for providing any additional submissions to the IPT and following up with any requests for further information or action.
Doesn't providing additional submissions give the British intelligence agencies even more information about me?
Yes, unfortunately that is likely. The test claimants argued that the IPT was established to accept complaints from anyone, regardless of whether they have evidence of surveillance in their individual cases, and that the role of the IPT is then to investigate and resolve those complaints. Unfortunately, the IPT came to the conclusion that it required additional information in order to carry out its investigations.
What will happen if the IPT finds that I have been unlawfully spied on?
If the IPT is able to establish that you have been unlawfully spied on, it must tell you. You will receive a declaration that your privacy rights have been violated and you can request that any information unlawfully obtained is deleted. The IPT may also award compensation.
How soon will I receive an answer to whether I was unlawful spied on by the British intelligence agencies?
It might be a while. The IPT's investigations can take many months, and it may even be years before your claim is resolved.
Will there be any appeal of the IPT's judgment regarding the ECHR aspect of claims by non-UK residents?
As noted above, two of the test claimants reside outside of the UK and therefore had their ECHR claims dismissed by the IPT. These two test claimants are likely to challenge this ruling in the European Court of Human Rights. We will keep you updated on the status of this appeal. If your claims are dismissed, you will also be able to complain to the European Court of Human Rights.