A landmark High Court ruling has struck down Britain's ability to
hack millions of people at a time through so-called "general warrants"
in what privacy campaigners are hailing as a major victory.
The ruling, obtained by Privacy International,
means that some bulk equipment interference (aka hacking) warrants are
no longer usable by the British authorities, something the campaign
group says enhances legal safeguards protecting innocent people from
dragnet surveillance.
Speaking on Friday afternoon when the judicial
review judgment was handed down, Caroline Wilson Palow, PI's legal
director, said in a statement: "General warrants are no more permissible
today than they were in the 18th century. The government had been
getting away with using them for too long. We welcome the High Court's
affirmation of these fundamental constitutional principles."
The judgment struck down a previous ruling from rubberstamping figleaf operation spy agency court the Investigatory Powers Tribunal (IPT), which, true to its principles, previously ruled there was nothing wrong with the idea of one single warrant authorising mass surveillance by MI5, MI6, and GCHQ.
Summing up the case, Lord Justice Bean and Mrs
Justice Farbey said in their judgment: "The question posed in the
Statement of Facts and Grounds is: 'Does section 5 of [the Intelligence Services Act 1994] permit the issue of a 'thematic' computer hacking warrant authorising
acts in respect of an entire class of people or an entire class of such
acts?'"
Such "equipment interference" (EI) warrants are startlingly broad, as El Reg reported when the infamous Snoopers' Charter was making its way through
Parliament in 2016, covering entire groups of people together with any
hackable gadgets in use by the "class" being targeted.
Barrister Ben Jaffey QC, for PI, told the High
Court that in its previous ruling OK'ing this kind of thing, the IPT had
made a crucial legal mistake: instead of focusing on whether a warrant
was lawful if it "adequately described" what items the spy agencies
wanted to hack, the law said these things had to be "specified".
The difference is that when the items to be hacked are "specified" in a warrant that means drawing up a list, not giving carte blanche permission for hacking anything and everything.
Agreeing, the judges drew analogies with 18th
century legal precedents that are still in force today. Those cases said
that general warrants authorising agents of the state to pick out
suspects at their own discretion for searches were unlawfully broad.
The modern court said last week:
In view of the importance of the constitutional principle that there
can be no interference with property without clear and specific legal
authorisation, the words of an enactment must be unambiguous before the
court may interpret Parliament as intending to override rights. There
are no such unambiguous words in section 5. The national security
context makes no difference as otherwise the courts would sanction wide
powers to override fundamental rights.
The judgment is a vindication of PI not only on
the bulk hacking warrants but also on a previous case involving the IPT.
That case, also a judicial review, overturned anti-scrutiny laws that made the IPT a one-stop shop whose rulings could never be challenged by higher courts.
Irritated by what it perceives as the persistent
misuse of judicial review to conduct politics through the courts, Boris
Johnson's Conservative government started a formal review last year aimed at reducing the power of judicial reviews to change the law. ®