GCHQ's New Tool: Obfuscation and Obstruction by Proxy

From de Veer Magazine
Jump to: navigation, search
GCHQ: Manipulate, Deceive, and Destroy (Courtesy: The Intercept)

By Ann-Marie de Veer
Saturday 12 April 2014

GCHQ has added a new tool to its burgeoning toolbox: it has successfully used obfuscation and obstruction by proxy of any meaningful review of its activities in meeting its compliance obligations under the Regulation of Investigatory Powers Act (RIPA) 2000.

On Tuesday 8 April, Anthony May of the Interception of Communications Commission (IOCC) presented its Annual Report to David Cameron who supported it in a Written Ministerial Statement and then laid it before both the House of Commons and the House of Lords.

Of course, the timing of May's report was no twist of fate: the European Court of Justice (ECJ) had just issued both its opinion and judgement on the Data Retention issue the same day. The courts' judgement, extensively reported in the media, culminated in the following directive:

Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid.

The fact that the ECJ directive and the IOCC report were contradictory is not simply an unwelcome coincidence, it was a carefully planned and choreographed response by GCHQ, via its proxies, to stop yet further rebuke coming its way.

Having already countered a challenge to its authority in 2012 it was now faced with an even more serious legal confrontation from English PEN, Big Brother Watch and the Open Rights Group via the ECJ. Adding to the pyre on which the GCHQ Guy Fawkes was soon to be placed was further evidence of their wrongdoing as seen by their desperation in trying to keep their mass surveillance activities secret. When the ECJ struck down its 2002 and 2006 rulings on the Retention of Data GCHQ looked to the quasi-judicious IOCC and the Executive for support.

Naturally, the IOCC stepped up to the plate and set out to bewilder the reader as much as possible, an example of which was the issue of the "Authorisation of Intrusive Surveillance".

In the IOCC report Page 6, Para 3.7 it states:

Statutory necessity purposes. The Secretary of State is forbidden from issuing an interception warrant unless he or she believes that it is necessary:
  • in the interests of national security;
  • for the purpose of preventing or detecting serious crime;
  • for the purpose of safeguarding the economic well being of the United Kingdom (which has to be directly related to state security).
  • for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a serious crime warrant to give effect to the provisions of any international mutual assistance agreement (section 5(3)).

And on the issue of proportionality, Page 6, Para 3.9 states:

Proportionality. The Secretary of State is forbidden from issuing an interception warrant unless he or she believes that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

Which, unlike the original RIPA 2000 document, Page 41, Para 32 states:

(2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—
(a) that the authorisation is necessary on grounds falling within subsection (3); and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
(3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime; or
(c) in the interests of the economic well-being of the United Kingdom.

More importantly, in the latest RIPA 2000 document on Page 43, Para 28 it states:

(2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—
(a) that the authorisation is necessary on grounds falling within subsection (3);and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

Setting aside the issue of mission creep, as evidenced by the growth of clauses in the latest version of the RIPA document compared to the former, the disparity between the IOCC report and RIPA is telling.

In particular, the addition of clause (g) in the latest RIPA document, of which no mention is made in the IOCC report, effectively gives GCHQ carte blanche to do whatever they please, save for the niceties of getting the incumbent Secretary of State to sign it off.

Forever onwards:

When the IOCC report was completed it then became David Cameron's turn to step up to the plate. In his rounding endorsement of the report, presented to both Houses of Parliament, he was perfunctory and fulsome in effectively blocking any challenge that may be directed at GCHQ.

At first he sought to focus on the writer (May), without reflecting on the content himself:

The report makes clear the Commissioner’s view that RIPA is fit for purpose, despite advances in technology. He also finds that interception agencies undertake their roles conscientiously and effectively, and that public authorities do not engage in indiscriminate random mass intrusion.

Then in excessively effusive praise of May:

I believe his report provides an authoritative, expert and reassuring assessment of the lawfulness, necessity and proportionality of the intelligence agencies’ work. I thank Sir Anthony for the rigour of his scrutiny.

Unsurprisingly, there was no mention of the fact that the NSA has been able to vacuum up data on UK citizens since 2007 using mass surveillance techniques like PRISM, Mastering the Internet, QUANTUM and Optic Nerve etc., nor that it is a two-way free-for-all for GCHQ in using the Five Eyes (FVEY's) aka. ECHELON systems. In other words, we have, and will continue to collect-it-all and if the legislative framework in our home country is not conducive to our direct involvement, then we will just get someone else to do it for us.

Thus, GCHQ placed another tool in their toolbox.

Oh, what a tangled web we weave
When first we practise to deceive!
Canto VI, XVII: Marmion - Walter Scott on The Battle of Flodden Field