Ride the Lightning

British Intelligence Free to Target Lawyers and Journalists

November 10, 2014

The Intercept reported last week that British intelligence agents have been granted the authority to secretly eavesdrop on legally privileged attorney-client communications.

Newly released documents confirm that a series of previously classified policies the U.K.’s top surveillance agency Government Communications Headquarters has advised its employees: “You may in principle target the communications of lawyers.”

The U.K.’s other major security and intelligence agencies—MI5 and MI6—have adopted similar policies, the documents show. The guidelines also appear to permit surveillance of journalists and others deemed to work in “sensitive professions” handling confidential information.

The documents were made public as a result of a legal case brought against the British government by Libyan families who allege that they were subjected to extraordinary rendition and torture in a joint British-American operation that took place in 2004. After revelations about mass surveillance from National Security Agency whistleblower Edward Snowden last year, the families launched another case alleging that their communications with lawyers at human rights group Reprieve may have been spied on by the government, hindering their ability to receive a fair trial.

The policies state that the targeting of lawyers “must give careful consideration to necessity and proportionality,” but the GCHQ policy document adds that each individual analyst working at the agency is “responsible for the legality” of their targeting, suggesting that a large degree of personal judgment is involved in the process. Notably, there is no judicial oversight of eavesdropping conducted by GCHQ or other British security agencies; their surveillance operations are signed off by a senior politician in government, usually the Foreign or Home Secretary.

The categories that allow the agencies to spy on lawyers or others working with “confidential” material, such as journalists, are extremely broad. One policy document from GCHQ notes:

"If you wish the target the communications of a lawyer or other legal professional or other communications that are likely to result in the interception of confidential information you must:

Have reasonable grounds to believe that they are participating in or planning activity that is against the interests of national security, the economic well-being of the UK or which in itself constitutes a serious crime."

Given that the U.K. government has already accused anyone working to publish stories based on the Snowden documents of being engaged in terrorism, it could use this as justification to spy on their correspondence.

Interesting that we just taught about the dangers of NSA surveillance to lawyers here in Madrid – we missed being able to include this story by a day. While the story didn't surprise us, it sure is powerful evidence of how much the privilege afforded attorney-client communications has been eroded – no doubt globally.

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