from the one-of-the-better-uses-of-normally-useless-anti-hacking-laws dept
Indispensable organization Privacy International has filed a legal challenge against GCHQ’s hacking of computers and devices, seeking to use the UK government’s own Computer Misuse Act against its national security agency.
Much like the (frequently maligned) CFAA (Computer Fraud and Abuse Act) here in the US, the CMA prohibits unauthorized access of computers as well as knowingly impairing computers and devices with malicious software. Privacy International argues that GCHQ (in conjunction with the NSA in many cases) has done both — multiple times.
The extent of GCHQ’s capabilities was revealed by the Snowden documents, which detail how GCHQ and NSA are using malware to conduct surveillance that is potentially far more intrusive than any other current surveillance technique, including the interception of communications. GCHQ’s hacking capabilities are so advanced that they are able to surreptitiously:
- take over a device’s microphone and record conversations taking place near the device (NOSEY SMURF);
- take over a device’s webcam and snap photographs (GUMFISH);
- record Internet browsing histories and collect login details and passwords used to access websites and email accounts (FOGGYBOTTOM);
- log keystrokes entered into a device (GROK);
- extract data from removable flash drives that connect to an infected computer (SALVAGERABBIT);
- identify the geographic whereabouts of the user (TRACKER SMURF); and
- retrieve any content from a phone, including text messages, e-mails, web history, call records, videos, photos, address books, notes, and calendars.
Because the leaks have made these programs public knowledge, there’s very little GCHQ can do to deny the claims. Instead, it will most likely invoke its “legal authority” to perform these acts, granted to it (albeit not in those specific words) by the UK’s Intelligence Services Act of 1994, as PI’s Caroline Wilson explains.
Section 5(1) of the ISA provides: “No entry on or interference with property or with wireless telegraphy [by GCHQ] shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section.” In other words, so long as GCHQ is acting under a warrant then its interference with computer and mobile devices may be authorised under Section 5, even if its otherwise against the law.
This assertion rests on the presumption that these acts are always carried out under a warrant. And even if not, the broad reading of the law has allowed GCHQ to declare its operations are completely legal. The CMA itself also provides another loophole for GCHQ, nullifying the stipulations of Section 1 of the act if performed under government authority.
This may not look all that promising for Privacy International, but the UK can’t rely solely on its own laws to protect GCHQ from this legal action. It also has to answer to the European Union.
[T]he law authorizing GCHQ’s hacking must at the least set out the nature of the offenses that might lead GCHQ to intrude on our personal devices, define that categories of people who might be affected, limit the duration and extent of any intrusion, set out the procedure for examining, using and storing any information obtained, prescribe how that information will be secured and shared with other parties, and define when the data collected will be erased or destroyed. The ISA’s bare bones authorisation most certainly does not meet these basic requirements.
[GCHQ’s] hacking is so intrusive, giving GCHQ unlimited control over any target device, that it is hard to imagine how it could made proportionate […] This intrusion is only compounded when it is indiscriminately deployed to potentially millions of devices.
Privacy International argues that it is the breadth of GCHQ’s activities that make it run afoul of both UK and EU law. Leaked documents have shown several programs instituted under the title of anti-terrorism that have failed to prohibit abusive use or even hold the agency to a reasonable definition of “relevant.” Much like the NSA, the capabilities have outstripped the narrowly-defined goal, providing the agencies with unprecedented levels of intrusion.
Privacy International has filed its complaint with the UK’s Investigatory Powers Tribune, the only body with the power to hear challenges of GCHQ’s activities. The legal authority GCHQ claims gives it the permission to sabotage and infiltrate computers on a widespread basis is far from clear. Much of what’s been granted to the agency has been done in complete secrecy and, as the leaks have been unleashed, its oversight has been exposed as completely worthless.
This legal battle (joining others filed by citizens and Amnesty International) will also likely end up being fought in the dark, obscured by cries of “national security.” But at least one of the
combatants will be making an effort to publicize every detail of the fight.