British Court Rules Against Intelligence Agencies's Bulk Hacking

The High Court in London has ruled that British security and intelligence services can no longer rely on ‘general warrants’ to authorise the hacking of large numbers of computers and phones belonging to UK citizens.

Bulk hacking has been exploited by the UK’s intelligence services to access electronic devices represent an illegal intrusion into the private lives of millions of people, the High Court has been told. The use of bulk surveillance by the intelligence and security services first came to the public attention after the Snowden revelations of 2014, prompting a rearguard effort by the government to shore up the status quo in which officials argued that it would be lawful in principle to use a single warrant to hack every device in a UK city.   

The government relied on the issuing of “general warrants” under section 5 of the Intelligence Services Act 1994 to do so.
The Court referred to cases dating back to the 18th century, which demonstrate the common law’s insistence that the Government cannot search private premises without lawful authority even in the context of national security. Because general warrants are by definition not targeted (and could therefore apply to hundreds, thousands or even millions of people) they violate individuals’ right not to not have their property searched without lawful authority, and are therefore illegal. 

As the Court emphasised: “The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so.”

Privacy International legal director, Caroline Wilson Palow, argued the ruling brought legal precedent into the modern age, where searching “property” could mean remotely spying on users’ digital lives. “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,” she said.  "Today's victory rightly brings 250 years of legal precedent into the modern age. 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." 

However, some government hacking powers are now governed by a newer law, the controversial Snooper’s Charter, or Investigatory Powers Act. There are also various legal challenges underway to this legislation. In October last year,  the Court of Justice of the European Union (CJEU) ruled that bulk collection and retention of citizens’ data must be brought into line with EU privacy law, even in cases of national security.

The UK has a vested interest in rowing back from its position on bulk surveillance, as it seeks an “adequacy decision” from the EU on data handling that is vital to seamless cross-border data flows in the new post-Brexit era.

Privacy International:        Infosecurity Magazine:        Guardian:      Computing:        Computer Weekly:  

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