MI5 ‘unlawfully’ held people’s data and misled senior judges, lawsuit claims

12 Jun 2019

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MI5 has been accused of ‘extraordinary and persistent illegality’ in a legal challenge brought by human rights organisation Liberty.

The UK Security Service, MI5, has been accused of mishandling private data, misleading senior judges, and of “extraordinary and persistent illegality” in a legal challenge brought by human rights organisation Liberty.

The high court heard on Tuesday (11 June) that MI5 has been holding on to large quantities of people’s personal data – such as locations, calls, messages and web browsing histories – without the proper data protections in place.

Liberty brought the case to challenge the Investigatory Powers Act – also known colloquially as the ‘Snooper’s Charter’ – which grants MI5 with broad powers of surveillance, allowing for bulk data collection under warrants issued by ‘judicial commissioners’, also known as senior judges.

These powers are granted with the caveat that the agency has a duty to ensure the data is properly stored, and destroyed when it is no longer required. The Investigatory Powers Commissioner’s Office (IPCO) is responsible for seeing that these privacy protections are upheld. Yet numerous letters and internal documents disclosed during the course of the hearing have revealed a series of failures in this capacity in what the investigatory powers commissioner Lord Justice Fulford has deemed “undoubtedly unlawful”.

“Without seeking to be emotive,” Fulford said, “I consider that MI5’s use of warranted data … is currently, in effect, in ‘special measures’, and the historical lack of compliance … is of such gravity that IPCO will need to be satisfied to a greater degree than usual that it is ‘fit for purpose’.”

A lawyer for Liberty, Ben Jaffey, said there were “ungoverned spaces” in MI5 where it did not know what data it held. An MI5 letter sent to Fulford confirmed that the agency was not aware what kind of material it had.

The letter said: “We are about to commence further scanning of [agency computers] to ensure we have a full understanding of the data.”

According to Liberty, the MI5 legal team claimed there is “a high likelihood [of material] being discovered when it should have been deleted, in a disclosure exercise leading to substantial legal or oversight failure”.

Letters reveal that MI5 was aware there were serious issues with how data was managed for years while still applying for warrants, failing to disclose this to judges. Liberty argued that this means the warrants issued may not have been lawful.

Lawyers for the agency said they could not expand on the exact nature of the breaches in open court – not because they were “embarrassing”, but because there were “serious national security concerns”.

Megan Goulding, a Liberty lawyer, said: “These shocking revelations expose how MI5 has been illegally mishandling our data for years, storing it when they have no legal basis to do so. It is unacceptable that the public is only learning now about these serious breaches after the government has been forced into revealing them in the course of Liberty’s legal challenge.”

UK home secretary Sajid Javid, the minister who oversees MI5, said the security service has taken “immediate and substantial steps” to comply with the law.

Eva Short was a journalist at Silicon Republic