If anyone still thought legal challenges to surveillance are possible, think again. After, against all odds, succeeding in the United Kingdom it appears lawmakers will simply change the laws to allow for the otherwise illegal spying - even resorting to secret methods that blatantly short circuit democracy.
The UK has seen several cases against the GCHQ (their NSA) by rights group Privacy International. In May 2014 it had the GCHQ's activities ruled illegal under the Computer Misuse Act (CMA), which criminalizes breaking into digital systems.
But a year later, and mere hours before the Investigatory Powers Tribunal hearing of Privacy International's complaint against GCHQ, the UK government
quietly introduced legislation on June 6th 2014 that would amend the CMA to provide a new exception for law enforcement and GCHQ to hack without criminal liability. The change not only affects Privacy International's claim, but also grants UK law enforcement new leeway to potentially conduct cyber attacks within the UK.
So while the UK government conceded that GCHQ's activities were illegal they 'fixed' that problem by simply changing the law to make them legal.
But the real issue here is the fact that this change was pushed through with no debate or formal hearing on laws, which is the hallmark of democracy. Instead, according to Privacy International
it appears no regulators, commissioners responsible for overseeing the intelligence agencies, the Information Commissioner's Office, industry, NGOs or the public were notified or consulted about the proposed legislative changes. There was no published Privacy Impact Assessment. Only the Ministry of Justice, Crown Prosecution Service, Scotland Office, Northern Ireland Office, GCHQ, Police and National Crime Agency were consulted as stakeholders. There was no public debate.
This is secret law-making, where the only people consulted are those who will benefit. It shows that along with secret surveillance comes secret courts making secret laws. The UK case illustrates the slippery slope of secret police, in that once they start it becomes necessary to make secret vast swaths of the democratic process, turning it from democracy into rule by a few.