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criminals and other spying agencies will eventuallyuse the same weaknesses.Intercepting the internal communicationsof internet companiesUnfortunately we live in a world where all toooften laws are for the little people. Nobody atGCHQ or the NSA will ever stand before a judgeand answer for this industrial-scale subversionof the judicial process. (Mike Hearn, Google securityengineer) 21The NSA – in partnership with the FBI – has directaccess to data held by several major US internetcompanies through the PRISM programme. But inaddition, the NSA and GCHQ have been interceptingthe private cables that connect the data centresof some of these companies, including Google andYahoo. The joint programme – called Muscular 22 – isbased in Britain and mainly run by GCHQ.This type of bulk collection had been ruled illegalin the US 23 because operations in the homelandhave to filter out the data of US persons (citizensand permanent residents). The NSA appears to bypassthese restrictions by getting GCHQ to collectthe data, which they are then free to search andprocess.Failures in the regulation of GCHQAll of GCHQ’s work is carried out in accordancewith a strict legal and policy framework whichensures that our activities are authorised, necessaryand proportionate, and that there isrigorous oversight. (GCHQ boilerplate responseto inquiries)We have a light oversight regime comparedwith the US. (Leaked GCHQ internal memo)The legislation governing GCHQ is very complex.The organisation operated in the shadows from itscreation 24 until 1994, when its existence was officiallyrecognised in the Intelligence Services Act, 25which also created a parliamentary committee toprovide some oversight. The Regulation of Investi-21 https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k22 apps.washingtonpost.com/g/page/world/how-the-nsas-muscularprogram-collects-too-much-data-from-yahoo-and-google/54323 Gellman, B., & Soltani, A. (2013, October 30). NSA infiltrates linksto Yahoo, Google data centers worldwide, Snowden documentssay. The Washington Post. www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-datacenters-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e3-8b74-d89d714ca4dd_story.html24 www2.warwick.ac.uk/fac/soc/pais/people/aldrich/vigilant/lectures/gchq/25 www.gchq.gov.uk/how_we_work/running_the_business/oversight/Pages/the-law.aspxgatory Powers Act (RIPA 2000) 26 created a systemof warrants and further oversight by independentcommissioners.The UK surveillance system has some peculiarities,for example:• Ministers or staff, not judicial courts, sign surveillancewarrants.• A secret court, the Investigative Powers Tribunal,which is deemed by rights groups to beinsufficient, hears complaints about surveillanceor intelligence services.• Intercept evidence is not admissible in courtin order to protect the methods of the securityservices. This means that when police or GCHQwiretap a phone call they will use this to obtainfurther evidence, but a jury will not hear thecontent of the call. Metadata in the form of calllogs and mobile location is widely used.It is important to note that there is a legal and practicaldistinction between surveillance for nationalsecurity by spy agencies and the use of similar techniquesby police forces.Weak oversight of the surveillance regimeA recent report 27 by the Home Affairs Committeeof the British Parliament was overtly critical of thecurrent oversight mechanisms. They found the Intelligenceand Security Committee (ISC) to be toocosy with the executive, despite recent changes toits statute. For example, the ISC had cleared GCHQof any wrongdoing about PRISM in July 2013, 28 soonafter the first publication of leaked documents. Asthe evidence of potential abuse piles up month aftermonth, the ISC remains broadly supportive ofGCHQ.According to the report, the independent commissionerstasked with monitoring the securityservices simply do not have the capacity to dealwith the hundreds of thousands of surveillance requestsin place every year.Jurisdiction hoppingThere are concerns that the NSA and GCHQ usegaps in their regulatory frameworks to help eachother bypass limitations on indiscriminate surveil-26 www.legislation.gov.uk/ukpga/2000/23/contents27 UK Parliament Home Affairs Committee. (2014). Oversight of thesecurity and intelligence agencies. www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/231/23108.htm28 UK Parliament Intelligence and Security Committee. (2013, July17). Statement on GCHQ’s Alleged Interception of Communicationsunder the US PRISM Programme. Statewatch. www.statewatch.org/news/2013/jul/uk-isc-gchq-surveillance-statement.pdflance carried out within national soil or affectingtheir own nationals.The US and UK are not meant to spy on eachother’s population, but a leaked memo 29 from 2007shows that the US is now “incidentally collecting”data on UK citizens who were not the target of anyinvestigation. Proposals to increase privacy protectionsin any of these countries, such as thoserecently proposed by the Obama administration inthe US, 30 are hollow if other countries in the alliancecan help bypass them.Mass surveillance is a breach of human rightsBulk collection of data is lawful in the UK. 31 The Secretaryof State 32 can sign special “certificates” thatallow for mass surveillance of any targets outsidethe British Isles under very broad themes, including“intelligence on the political intentions of foreigngovernments; military postures of foreign countries;terrorism, international drug trafficking andfraud.”These certificates have been labelled “a blankcheque to spy on the world” by campaigners 33 whodoubt they comply with international human rightslaws.Unaccountable hacking is unlawfulIn contrast to the justifications provided for some ofthe other programmes, no government official hasreplied to the widespread evidence of mass hackingin leaked documents. Privacy International haschallenged 34 the compliance of these activities withhuman rights legislation.Weak public and political reactionThe public reaction to the Snowden revelationshas been quite muted in the UK. There are several29 Ball, J. (2013, November 20). US and UK struck secret deal toallow NSA to ‘unmask’ Britons’ personal data. The Guardian.www.theguardian.com/world/2013/nov/20/us-uk-secret-dealsurveillance-personal-data30 Cohn, C., & Higgins, P. (2014, January 17). Rating Obama’sNSA Reform Plan: EFF Scorecard Explained. Electronic FrontierFoundation. https://www.eff.org/deeplinks/2014/01/ratingobamas-nsa-reform-plan-eff-scorecard-explained31 MacAskill, E., Borger, J., Hopkins,N., Davies, N., & Ball, J. (2013,June 21). The legal loopholes that allow GCHQ to spy on the world.The Guardian. www.theguardian.com/uk/2013/jun/21/legalloopholes-gchq-spy-world32 In the United Kingdom, a secretary of state is a cabinet minister incharge of a government department.33 Bunyan, T. (2014). GCHQ is authorised to “spy on the world” butthe UK Interception of Communications Commissioner says this isOK as it is “lawful”. Statewatch. www.statewatch.org/analyses/no-244-gchq-intercept-commissioner.pdf34 Wilson, C. (2014, May 13). Explaining the law behind PrivacyInternational’s challenge to GCHQ’s hacking. Privacy International.https://www.privacyinternational.org/blog/explaining-the-lawbehind-privacy-internationals-challenge-to-gchqs-hackinginquiries and reviews in motion but no substantialchanges. The Royal United Services Institute hasbeen commissioned by the deputy prime minister toreport after the next general election in May 2015. 35The parliamentary committee in charge of overseeingGCHQ has predictably concluded that the agencydid not break any laws. 36 The Labour Party, currentlyin opposition, has asked for a fundamental reviewof surveillance to deal with the lack of trust in thespy agencies but it has stopped short of criticisingthe activities of GCHQ.These timid reactions are in stark contrast to theUS, where there are competing legislative reforms. 37Undoubtedly the lack of political reactions reflectsthe low level of public awareness and debate aboutmass surveillance among the UK population. Thereare several hypotheses for this apparent lack ofpublic concern.Media self-censorshipThe coverage of the Snowden leaks in the UK hasfallen disproportionately on The Guardian newspaper,with little coverage in other papers and TV. Thepaper had a natural lead as the original recipient ofthe leaked documents. But while media outlets inother countries have since obtained source documentsand produced their own stories, this has notbeen the case in Britain.The UK operates a system of voluntary censorshipfor national security issues, called theD-Notice, 38 issued by the Defence, Press and BroadcastingAdvisory Committee (DPBAC). The DPBACsent out a reminder to the media the day after TheGuardian started publishing the leaked documents,and it seemed to work.Trust in the spy agencies?Popular wisdom is that the enduring mythologyabout British spies, from Lawrence of Arabia toJames Bond, 39 makes it hard to challenge the UK“secret state”. In addition, GCHQ is widely creditedwith a major contribution to the allied victory inWorld War Two by cracking the German encryption35 https://www.rusi.org/news/ref:N5315B2C9B1941/36 BBC. (2013, July 17). GCHQ use of Prism surveillance data waslegal, says report. www.bbc.co.uk/news/uk-2334159737 Glaser, A. (2014, April 23). Comparing NSA Reforms to InternationalLaw: A New Graphic by AccessNow. Electronic Frontier Foundation.https://www.eff.org/deeplinks/2014/04/comparing-nsa-reformsinternational-law-new-graphic-accessnow38 www.dnotice.org.uk39 Frith, H. (2014, February 20). Ian Fleming romance points upambiguous attitude to spying. The Week. www.theweek.co.uk/tv-radio/57398/ian-fleming-romance-points-ambiguous-attitudespying258 / Global Information Society Watchunited kingdom / 259