Against all the odds, legal challenges to UK surveillance are succeeding, as Techdirt has reported. At the forefront of bringing cases against GCHQ is the rights group Privacy International. In May 2014 it asserted that GCHQ’s activities were illegal under the UK’s Computer Misuse Act (CMA), which criminalizes breaking into digital systems. A year later, and just hours before the Investigatory Powers Tribunal hearing of Privacy International’s complaint against GCHQ, the UK government revealed the following:
only a few weeks after the claim was filed, the [UK] Government quietly introduced legislation on 6 June 2014 that would amend the CMA to provide a new exception for law enforcement and GCHQ to hack without criminal liability. The change not only affects Privacy International’s claim, but also grants UK law enforcement new leeway to potentially conduct cyber attacks within the UK.
That is, the UK government was implicitly admitting that GCHQ’s activities were, once again, illegal, but fixed that problem with the simple expedient of changing the law to make them legal. That on its own is questionable, although some might say that spies and the police need to have immunity when carrying out certain authorized acts. But the real issue here is another: the fact that this change was pushed through with none of the usual scrutiny or debate accorded to laws with important effects. As Privacy International explains, although the UK government published an explanatory note about the proposed amendment, it neglected to mention its true impact. Moreover:
It appears no regulators, commissioners responsible for overseeing the intelligence agencies, the Information Commissioner’s Office, industry, NGOs or the public were notified or consulted about the proposed legislative changes. There was no published Privacy Impact Assessment. Only the Ministry of Justice, Crown Prosecution Service, Scotland Office, Northern Ireland Office, GCHQ, Police and National Crime Agency were consulted as stakeholders. There was no public debate.
This is essentially secret law-making, where the only people consulted are the ones who will benefit. That’s troubling at the best of times, but especially so in the context of a government abusing its powers to avoid yet another embarrassing defeat in the courts.