Posted by Kevin on July 10, 2014.

A new statement from Privacy International points out that from Monday 14 to Friday 18 next week, its action laid before the Investigatory Powers Tribunal (IPT) challenging the legality of GCHQ surveillance (the Tempora program) will come to a head:

Privacy International, along with Amnesty International, Liberty, the American Civil Liberties Union, Pakistani organisation Bytes for All and others, have brought the case before the Investigatory Powers Tribunal (IPT) to challenge the UK government’s insistence that alleged operations involving bulk interception, collection, analysis and use of people’s communications, and related intelligence-sharing arrangements with the US, are lawful.

But there is a subtle and fascinating change in semantics. When the action was originally announced (see Privacy International’s new complaint against GCHQ is like pissing in the wind for details), it said it was seeking

A declaration that the matters set out in the complaint are well founded and GCHQ’s conduct has been unlawful, an injunction restraining any similar future conduct, an order requiring the destruction of any information unlawfully obtained and a public judgment.

That is not going to happen. The witness statement of Charles Farr, Director of the Office for Security and Counter-Terrorism has already made it clear that the official stance from government will remain: we neither confirm nor deny anything. There will, then, be nothing to be declared unlawful.

However, Farr’s statement does accept the reality of Prism and Upstream Collection by the NSA because the US government has already acknowledged their existence. Public knowledge of Tempora comes from the same source as public knowledge of Prism – Edward Snowden’s leaked files. What is true for Prism is with almost absolute certainty true for Tempora; but Farr will neither confirm nor deny – so Privacy International will be stymied.

The subtle change in semantics is this:

Despite the widely published revelations by Edward Snowden about the scope of UK and US surveillance practices, the UK government persists in refusing to ‘neither confirm nor deny’ the existence of a programme at the heart of these claims – Tempora. As such, the hearing will with [sic] the Tribunal seeking to determine, on the basis of agreed hypothetical facts, the following issues: If the ‘Tempora’ mass communications surveillance programme exists, whether it violates the rights to privacy and freedom of expression enshrined in Articles 8 and 10 of the European Convention on Human Rights; and

If the UK government has access to intelligence collected by the US under its PRISM and UPSTREAM programmes, whether that violates Arts 8 and 10 ECHR.

The questions have become conditionals. ‘We neither confirm nor deny’ is no longer any form of answer. Whether Farr will be able to come up with his own semantics to continue to avoid the issue remains to be seen – but he is certainly being put on the spot. On the surface, he will have to say either, ‘if it exists Tempora is lawful or unlawful.’ If it is unlawful then there is an immediate case against the British Government. If it is lawful, it can be taken to the European Courts because it most certainly is not lawful under European law. The only other response is to say ‘there is no such thing as Tempora’; which again will almost certainly be rejected in European courts.

My bet is that the government will simply dig in its heels and refuse to answer what it will claim to be an hypothetical question.

But whatever way you look at it, it’s going to be an interesting week.