Privacy International takes its five-year battle against UK government’s hacking powers to the High Court

The case stems from a 2016 decision by the Investigatory Powers Tribunal (IPT), the UK tribunal tasked with examining complaints against the UK intelligence services, that the UK government could lawfully use sweeping ‘thematic warrants’ to engage in computer hacking of thousands or even millions of devices, without any approval by a judge or individualised reasonable grounds for suspicion. Thematic warrants are general warrants covering an entire class of property, persons or conduct, such as “all mobile phones in London”.

The Government argued that it would be lawful in principle to use a single warrant signed off by a Minister (not a judge) to hack every mobile phone in a UK city. The IPT agreed with the Government, finding that the use of thematic warrants was lawful under both UK law and the European Convention on Human Rights.

We will be challenging the decision of the IPT before the High Court on public law grounds. We argue that allowing the UK government to use general warrants would be against long established UK legal principles and the European Convention on Human Rights.

Caroline Wilson Palow, Legal Director at PI, said:
“Hacking into someone’s phone or computer without them knowing is intrusive. Hacking into or interfering with the property of literally thousands or millions of people is extraordinarily intrusive. It is a major assault on the UK’s constitutional tradition, which for over 250 years has held that such intrusions cannot be authorised at this scale.”

Notes to editors:

• Accredited journalists may contact the Administrative Court Office to request permission to attend the hearing virtually. It is taking place on 8 and 9 December 2020 in the case of Privacy International v Investigatory Powers Tribunal.
• In 2014, following the Edward Snowden disclosures, it was revealed that the UK security and intelligence services use hacking techniques in bulk to gain access to potentially millions of devices, including computers and mobile phones.
• Privacy International challenged these mass hacking practices in the IPT, which hears claims against the UK intelligence services. During the proceedings, the government asserted that it could rely on broad ‘general warrants’, not based on reasonable individual suspicion, to conduct hacking. The UK Government even argued that it would be lawful in principle to use a single warrant to hack every mobile phone in a UK city. In February 2016, the IPT held that this was lawful.
• In May 2016, Privacy International challenged the IPT’s decision in the UK High Court. The Government’s response was to argue that Tribunal decisions were not subject to judicial review because the jurisdiction of the court was ousted by a provision of the Regulation of Investigatory Powers Act (“RIPA”) 2000.
• Following a series of further appeals by PI, in December 2017, Privacy International applied for and was granted permission to appeal to the Supreme Court.
• In a historic victory for PI, in May 2019, the UK Supreme Court ruled that the Investigatory Powers Tribunal’s (IPT) decisions are subject to judicial review in the High Court.
• Since 2018, some of the UK’s hacking powers which were originally the subject of this case are now governed by the Investigatory Powers Act 2016, and therefore no longer before the court. But additional property interference and hacking powers continue to be authorised under the statute at issue, section 5 of the Intelligence Services Act 1994. These will be the subject of tomorrow’s hearing.
• Privacy International are represented by Mark Scott of Bhatt Murphy Solicitors and by Ben Jaffey QC and Tom Cleaver of Blackstone Chambers.