On 6th February 2015, in an unprecedented ruling, the Investigatory Powers Tribunal (IPT) ruled that for a period of seven years the UK's intelligence services had been acting unlawfully in accessing communications collected by the NSA.
It was unprecedented in that it was the first time since the IPT was formed fifteen years ago that it had ruled against the intelligence services. As it is the only court tribunal that is empowered to investigate into the intelligence services (MI5, MI6 and GCHQ) this is a ruling that is very significant. Though, particularly as the ruling only applies to past activities of GCHQ, it may not be quite as monumental as some reports have suggested.
Nonetheless, it does matter, and there are some significant things that should be noted about it.
1. Seven years of data
GCHQ now has seven years of data gathered through a process now ruled unlawful. Seven years of data gathered about millions of innocent people. Privacy International has challenged GCHQ to delete it all, and are working on putting together an online form to help people do so for themselves.
It seems unlikely that GCHQ will comply without a fight, and even if it does, it can be presumed that it will have analysed, condensed and filtered out as much valuable information as it can from it before it does.
2. Whistle-blowers matter
None of this could have happened without the revelations of Edward Snowden and that makes it clearer than ever that whistle-blowers matter. Without them, we remain in the dark and we are unable to challenge the authorities when our rights are infringed.
The last few days have shown this in a very different field. It was through a whistle-blower that the scandal of HSBC aiding clients to avoid and evade taxes came to light. Now, more than ever, we need to protect and support whistle-blowers.
3. Civil society matters
The case at the IPT was brought by four NGOs (non-governmental organisations), not-for profit groups working for the benefit of people generally. These NGOs: Privacy International, Bytes for All, Liberty, and Amnesty International, have done a sterling job and not for the first time.
It is hard for individuals to assert their rights in the face of the seemingly overwhelming power of the authorities (and indeed the corporates) and the role that civil society plays on our behalf is critical. It isn't the first time this has happened – the role of Digital Rights Ireland in taking the case to the CJEU that resulted in the Data Retention Directive being declared invalid was even more significant.
Civil society matters and we should celebrate and support it, by joining or helping to fund them.
4. Privacy can win
That last story, the declaration of invalidity of the Data Retention Directive, was a critical milestone in the challenges to surveillance – last week's IPT ruling is another that confirms the key point that privacy can win.
It is often suggested that privacy is 'dead'. Most recently, in Davos, it was suggested by a group of Harvard professors – but rulings like this suggest that rumours of its death have been exaggerated. The 'war' has not yet been lost, and it's still worth fighting.
5. GCHQ's surveillance was illegal
This, the essence of the ruling, should not be forgotten. GCHQ was acting illegally, primarily because the rules governing its access to data from the PRISM and UPSTREAM programmes were kept secret.
That illegality, though it might be dismissed by the authorities as a technicality, is highly significant. It blows the idea that the authorities have always acted within a legal framework out of the water – and should make us wonder about the legality of other projects and programmes GCHQ is involved in.
These are just two examples from the plethora of programmes revealed by Edward Snowden, and it would be highly naïve to think that Snowden revealed everything. GCHQ's shining armour is tarnished now and that matters.
