Espionage: UK Court Restricts Massive GCHQ Hacking

The British High Court, which deals with important cases in the first instance, limited the previous broad powers of the espionage agency GCHQ for international cyber attacks in a ruling on Friday. The secret service is therefore no longer allowed to penetrate smartphones, computers and entire networks abroad on the basis of general court orders that are not geared to specific measures – for example using a state Trojan.

The judges presented following a lawsuit by the civil rights organization Privacy Internationalthat Section 5 of the Intelligence Services Act (ISA) of 1994 does not allow security agencies such as intelligence agencies to rely on such broad “thematic” search warrants for hacking information technology systems and communications networks. Concrete goals of espionage would have to be clearly stated in appropriate orders. This is the only way to uphold fundamental UK constitutional principles and the provisions of UK general law.

By doing Ruling, the High Court backs the principlethat a search warrant must not be drafted so broadly that it allows the executor a considerable amount of discretion. For example, it cannot cover a whole class of objects, people or behavior such as “all cell phones used by a member of a criminal organization”. Rather, the names, locations or identifiers of suspects must be given.

According to the British Investigatory Powers Act of 2016, the GCHQ is allowed to carry out massive interventions in technical equipment. In 2018, the British government issued the slogan that the secret service should use this competence, which is initially provided for individual cases in exceptional cases, more often and thus again triggered protests among data protection officials.

Privacy International has been taking action against this mass surveillance authorization for many years. In 2014, the applicants first turned to the competent national court, the Investigatory Powers Tribunal (IPT). The latter had rejected the lawsuit in 2016, but for the first time confirmed the massive GCHQ espionage activities made public by Edward Snowden and linked “serious questions” with it.

The activists continued to pursue their concerns through the courts. In 2019, the Supreme Court finally found them largely right. The UK Supreme Court ruled that decisions of the IPT can be reviewed by the High Court and that the rule of law must be respected. Privacy International then contacted the competent authority again and has now contested the clarifications. The IPT and the British government can still appeal. If they do not do this, they have to restrict the practice of ordering.

In 2018 the Supreme Court had already ruled that the British secret services GCHQ, MI5 and MI6 had illegally obtained massive amounts of access to data from Internet users for years. Caroline Wilson Palow, Legal Counsel for Privacy International, spoke in the face of the announcement from the High Court of a historic victory. This carried over 250 year old legal principles into modern times. The government got away with the far too broad orders for far too long.


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