UK

MI5 engaged in 'extraordinary and persistent illegality', High Court hears

Documents obtained by Liberty reveal that an MI5 compliance team expressed concern that "data might be being held in ungoverned spaces in contravention of our policies".
Documents obtained by Liberty reveal that an MI5 compliance team expressed concern that "data might be being held in ungoverned spaces in contravention of our policies". Documents obtained by Liberty reveal that an MI5 compliance team expressed concern that "data might be being held in ungoverned spaces in contravention of our policies".

MI5 has engaged in "extraordinary and persistent illegality" in the way it retains personal data, the High Court has heard.

Lawyers representing campaign group Liberty claim MI5 identified problems with the storing and analysis of data "as far back as January 2016", and that the prime minister and home secretary were only notified in writing this April.

Documents obtained by Liberty reveal that an MI5 compliance team expressed concern that "data might be being held in ungoverned spaces in contravention of our policies".

The group's barrister Ben Jaffey QC said at a preliminary hearing in London on Tuesday: "The existence of what MI5 itself calls 'ungoverned spaces' in which it holds and uses large volumes of private data is a serious failure of governance and oversight, especially when mass collection of data of innocent citizens is concerned."

In a statement released during the hearing, Megan Goulding, a lawyer at Liberty, 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.

"This could include our most deeply sensitive information – our calls and messages, our location data, our web browsing history.

"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.

"In addition to showing a flagrant disregard for our rights, MI5 has attempted to hide its mistakes by providing misinformation to the Investigatory Powers Commissioner, who oversees the government's surveillance regime.

"And, despite a light being shone on this deplorable violation of our rights, the government is still trying to keep us in the dark over further examples of MI5 seriously breaching the law."

The disclosures came ahead of Liberty's latest legal challenge to provisions of the Investigatory Powers Act, which is due to be heard at the High Court next week.

Mr Jaffey told Lord Justice Singh and Mr Justice Holgate that the data held in what MI5 refers to as "technology environments" were "the fruits of interception, the product of computer and other hacking (and) bulk acquisition".

He added: "Much data on the systems – where most bulk data is used – will be data of people of no legitimate intelligence interest: innocent members of the public."

Mr Jaffey referred to the concerns of the Investigatory Powers Commissioner, Lord Justice Fulford, who criticised "the undoubted unlawful manner in which data has been held and handled" in one of the documents obtained by Liberty.

Lord Justice Fulford added: "Without seeking to be emotive, I consider that MI5's use of warranted data... is currently, in effect, in 'special measures'."

Julian Milford, representing the Home Secretary Sajid Javid and Foreign Secretary Jeremy Hunt, said in written submissions that Liberty's case was "a systemic challenge to the lawfulness of the regime put in place under the Investigatory Powers Act for the use of various intelligence-gathering powers".

He added: "It is not a challenge to any act done (or not done) by MI5."

Mr Milford said that "the existence of serious compliance risks" were relevant to "the sufficiency of oversight or the effectiveness of handling arrangements within the system".

But he submitted that "beyond that, however, the precise details of the issues raised by the technology environment in question are a matter of complete irrelevance to the issues that the court has to decide".