“In This Way, Our Work Will Become Legal”: Don’t Count Your Chickens Over The GCHQ Verdict On Surveillance

Last week, there was a verdict in a UK court saying that the GCHQ had indeed broken the law with its bulk surveillance. While many privacy advocates rejoiced, so did the GCHQ, saying the verdict confirms that their activity is legal. How can this be? Don’t count your chickens quite yet.

In 2008, I was serving on an expert panel with the then-overdirector of the Swedish NSA/GCHQ equivalent. There was a new general wiretapping law in the works, and I was a public outspoken opponent against it. For some reason, this overdirector thought it was a good idea to explain to me exactly how the Swedish FRA had been breaking the law and the constitution since 1976 – while I was covertly recording, just on the silly long shot something like that might actually happen.

“We’ve had this [surveillance] task for quite a while, but in this way [with this new law], it will become legal”, the overdirector – Anders Wik – had been recorded as saying.

And I had recorded everything, and published the recording, and mainstream media didn’t write a single article about it. Not one. Only the tech journal IDG did.

The FRA had been wiretapping satellites since 1976. They justify this by pointing at a law which says that anybody may listen to radio waves, which makes sense when you’re looking at radio waves from a TV signals or CW radio perspective. But the law just said radio waves in general, which obviously includes directional radio links, such as between satellites and ground stations.

This conflicts sharply with privacy-against-wiretapping laws, where you have a so-called expectation of privacy when you’re making a phonecall, and don’t (legally) have to think about how the phonecall circuit may be connected from a technical standpoint. But the FRA argued, that if your phonecall happened to take a jump over radio waves at some point, then it was fair game to them – according to another law.

In short, there’s a multitude of conflicting laws in the area, and civil liberties activists tend to pound the table on the constitutional civil liberties regulations. But these constitutions allow for exceptions more often than not, and they’re rarely tried in public court.

However, as shown above, the FRA knew full well they were breaking the law. At least the overdirector did, and one would assume that means the entire leadership knows they’re effectively a criminal organization. They just had – and have – secret courts on their side, like their ilk in the GCHQ and the NSA.

One favorable verdict does not a summer make. So it is also with this verdict, that says the GCHQ was guilty of illegal activity. All of it has most likely passed the statute of limitations, and in any case, their bulk wiretapping is legal now, according to the same verdict.

So just like with the FRA, GCHQ’s mass surveillance is legal now, even if a court said it didn’t use to be. That doesn’t help much.

Privacy remains your own responsibility. Count on neither secret courts nor the ambiguous legislation.