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Your data handed over: no questions asked

Service providers have been accused of passing data to intelligen­ce agencies on “gentlemen’s agreement”

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Service providers have been accused of passing data from millions of Britons to intelligen­ce agencies on a “gentlemen’s agreement”.

TELECOMS COMPANIES AND GCHQ have been criticised after a judicial tribunal ruled that the eavesdropp­ing agency had wrongly been given unfettered access to data from millions of Britons for more than a decade.

According to Privacy Internatio­nal, which took the matter to the Investigat­ory Powers Tribunal that oversees intelligen­ce bodies, telcos often handed over data without checking that there was a legal basis for doing so.

“The judgement highlighte­d that the telcos didn’t really ask for anything and were just given oral assurance, although it should be said the judges weren’t critical of the telcos, but instead the failures by GCHQ,” said Millie Graham Wood, a solicitor with Privacy Internatio­nal.

“It was kind of like a gentlemen’s agreement, that GCHQ would contact providers and say ‘we want this kind of communicat­ions data’ and without asking for any documentat­ion or looking at any lawful authority they would just hand it over.”

The data gathered – from at least 2001 until 2016 – included bulk personal datasets and bulk communicat­ions data, which was demanded under laws such as section 45(2) of the Telecommun­ications Act 1983 and section 94(1) of the Telecommun­ications Act 1984.

Verbal agreement

The lax way in which orders for data were dealt with by service providers was also shown in case notes from the tribunal. Although any requiremen­ts should have been set out in writing, they were often communicat­ed verbally – and the provider complied.

“In some cases, a letter was sent by GCHQ to the CSP [communicat­ions service provider] which specified the categories of communicat­ions in respect of which data was required by GCHQ. However in most of the relevant cases such letters cannot be found on the files of GCHQ or the CSP,” the case notes read.

“As was accepted by the GCHQ witness, the likelihood is that in such cases the requiremen­t to provide communicat­ions data and the specificat­ion of such data was communicat­ed only orally.”

The tribunal heard several examples of data requests where no letter was sent and details were handed over on the back of a conversati­on. “In a sense, the oral agreements were just an extension of something that appears to have been going on for many years prior to the use of section 94 of the Telecommun­ications Act, without the telcos asking for any legal documentat­ion,” said Graham Wood, adding that the cosy relationsh­ip was different to what may be demanded by more recently establishe­d companies.

“The average person would expect that if GCHQ approached a telco or companies like Facebook or Google seeking vast quantities of data, the

It was impossible to know how the data had been used, or if it had been shared with other government bodies

companies would ask to see a warrant and evidence of legal basis,” she said.

“It would be shocking if GCHQ could just turn up, say ‘Hi, we want this data’ and the companies wouldn’t ask to see anything.”

In the ruling, the tribunal found that successive foreign secretarie­s up until 2016 delegated data request decisions to GCHQ, when any data requiremen­ts should have been overseen by the foreign secretary. (Oddly, GCHQ comes under the purview of the Foreign Office and not the Home Office.)

The government had previously argued that the Foreign Office had overseen all data requests, but was forced to change its position after new evidence came to light.

Because the data was collected without the required oversight, the tribunal found that “in relation to many directions made prior to October 2016 by the foreign secretary to communicat­ions service providers to provide data to GCHQ, they were not in accordance with law”.

Although very little has changed in the way that data is shared between service providers and GCHQ, such data requests are now deemed legal because they have proper oversight from the foreign secretary.

Fixed data deposit

Privacy Internatio­nal also expressed its concerns that GCHQ was allowed by a previous ruling to retain the data, and could share it with third parties and foreign agencies.

“Unfortunat­ely the tribunal found that even though the regime was unlawful they weren’t going to provide any relief or say that GCHQ has to delete it,” said Graham Wood. “They effectivel­y said, ‘Even though it’s unlawful we’ll just tell you off, but won’t impose any sanction on you’.”

According to Privacy Internatio­nal, it was impossible to know how the data had been used, or if it had been shared with other government bodies. “The data could have been shared with police, department­s or foreign agencies,” said Graham Wood.

“However, the case looked at these types of sharing on a hypothetic­al basis and so we will not know the extent of this and whether there has been any misuse or abuse of vast amounts of personal data.”

 ??  ?? ABOVE The tribunal showed that telcos often handed over data to GCHQ after a verbal – not written – request
ABOVE The tribunal showed that telcos often handed over data to GCHQ after a verbal – not written – request

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