MI5 has been criticised for obtaining surveillance warrants with information it knew to be false or incorrect.
The high court also heard that the security agency had lost control of its data handling and storage operations. Shortcomings in MI5’s conduct have been highlighted by the official watchdog, the Investigatory Powers Commissioner, Lord Justice Sir Adrian Fulford.
Fulford, who oversees the agency’s use of data, said there was a historical lack of compliance with the law in the way MI5 retained and deleted data. He told the high court that the secret service agency was effectively in “special measures” because the breaches were of “such gravity”.
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The labelling of the problems as “compliance difficulties” was a “misleading euphemism”, Fulford said. In a response sent by MI5 to Fulford it was revealed the agency had known about the issues since 2016.
The response said: “In 2016, as part of a wider review of legal compliance in anticipation of new legislation, the problem led the team conducting the compliance review to identify, at a high level, that data might be being held in ungoverned spaces in contravention of our policies.”
In the future, Fulford said, MI5 would have to show its systems are fit for purpose “to a greater degree than usual” when applying for warrants.
Released correspondence between Fulford and MI5 showed that he believed that the agency’s method of handling and holding people’s data was “undoubtedly unlawful”.
The full scope of the problems started to become apparent in disclosures made public at the hearing on Tuesday. Ben Jaffey QC for Liberty said the agency had “ungoverned spaces” where it did not know what it held.
In written submissions, Jaffey said: “Fulford’s generic warrant decision notes that warrants were issued to MI5 on a basis that MI5 knew to be incorrect and the judicial commissioners [the watchdogs] were given false information.”
It was revealed in a letter sent by MI5 to Fulford and released to the court that the agency did not know what material it held. The letter read: “We are about to commence further scanning of [its computers] to ensure we have a full understanding of the data.
“The full scan had been challenging to action…We have also been seeking to understand working practices…so that we can take comprehensive action to improve assurance of our compliance with relevant safeguards.”
Julian Milford, counsel for the Home Office and Foreign Office, told the court: “We accept that this is material that discloses compliance risks with MI5.”
Megan Goulding, a lawyer with 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.
“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.”