Policy Recommendations: Seminar 3

Policy Recommendations from Seminar 3

Media Agenda-Building, National Security, Trust & Forced Transparency

8^th July 2015, Brunel University

(Seminar Leader: Dr Paul Lashmar)

1.         More accountability, not only transparency, concerning the actions of the state and secret-services is needed if public trust is to be rebuilt. Given the many conflicting opinion polls and studies conducted since Snowden, a definitive analysis is needed on public perceptions of intelligence, surveillance, oversight and accountability.

2.         More education and a better quality public debate (eg in the media) are required to inform the public on matters of surveillance and national security. The complexity of the issue makes it difficult to explain, and we need to find ways of making these issues both clearer and more relevant for a general public, bearing in mind that social change can happen through ‘agitators’ creating a better debate.

3.         Specific training for journalists focusing upon the intelligence realm is needed in NCTJ courses, including understanding RIPA and new technology. Journalists must be able to understand current technologies and be able to assess them in their regulatory context.

4.         An academic think tank, perhaps stemming from DATA-PSST participants, is needed to intervene on policy and media debates on these issues. We should also conduct a workshop on state secrecy structures and how to research them. This group could also try to do the ethical assessment analysis required by every EU security program that weighs the possible results against the intrusions of privacy and freedom.

5.         A very high proportion of consent notices are non-compliant. Better implementation is needed, and enforcement by the ICO. The ICO would like us to come up with real systems that work better, rather than just generalised talks on transparency.

6.         At policy-making level, participants recommend that: the government’s definition of its targets and who extremists are needs to be much more narrow; and selling surveillance technologies to non-democratic states must be regulated with better monitoring.

Policy Recommendations: Seminar 2

Policy Recommendations from Seminar 2

Debating the Technical & Ethical Limits of

Secrecy & Privacy

24th March 2015, Sheffield Univ.

(Seminar Leaders: Dr Emma Briant, Dr Ross Bellaby)

1.     There is a need to raise technological awareness among members of the public, as well as for journalists and researchers to be technologically aware. As popular culture is often misleading in what it depicts, it may be helpful to develop ‘creative’ mediums to communicate surveillance issues and privacy tools reliably and effectively. This would ensure we are all more informed as well as reducing the ‘trust deficit’.

2.     With a proper process of application and review, universities should be able to allocate anonymised, secure research terminals to researchers and research students looking at sensitive topics.

3.     There needs to be meaningful review of the oversight for surveillance in the UK as well as greater openness regarding the systems in place to ensure targeting is carried out in a way that protects minorities and respects free speech and civil/human rights. We must target incitement and planning of violent activities. However, extreme views are not illegal.

4.     To improve oversight, and trust in this process, independent members of the public should be able to contribute to the Intelligence and Security Committee of Parliament.

Seminar 3 Position Statement: Tony Bunyan (journalist and Director of Statewatch since 1991)

Tony Bunyan

(journalist and Director of Statewatch since 1991)

Quote from Intelligence Services Commissioner:

“I oversee how the intelligence services store and use bulk personal data (BPD). There is no statutory definition of BPD, but in essence BPD refers to data belonging to a range of individuals acquired by or held on one or more analytical systems in the intelligence services. The majority of these individuals are unlikely to be of intelligence interest.” (Intelligence Services Commissioner, 2014 report, June 2015)

1. We need to understand the complete “chain”

At the moment much of researchers/journalists’ attention is in the:

“gatherers”

NSA, GCHQ, “Five Eyes” and to an extent on EU Member State INTEL: these are the “intelligence-gathering” agencies who have alliances and multilateral agreement through NATO and bilaterals with almost every EU state

But then we have the second level:

“users” of the data/intelligence

CIA, FBI, DEA, DHS in USA and MI5, MI6, DIS, Special Branch & specialist police units who act against “targets” to either bring them to trial or to disrupt or destabilise (including the use of undercover agents, CHIS etc)

The third level is:

“the suppliers”

The multinational companies who make vast profits from their own, commercial, intelligence-gathering on their customers/consumers AND make further vast profits through the production of the technologies for gathering data for the agencies and the technologies of enforcement (for SECINT and LEAs - from “Smart Borders” to “Smart urban cities”).

Fourth there is the:

“embedded nexus”

Where the “gatherers”, “users” and “suppliers’” meet in a myriad of meetings with EU officials and from the Member States for the mutual benefit of all – see Neoconopticon: the EU security-industrial complex by Ben Hayes (Statewatch, over 900,000 copies downloaded).

And finally we have:

“the targets”

The First target is suspected terrorists a) legitimate targets concerning criminal activity and b) where the net widens to cover “sympathisers”. Ideologically, PM Cameron spelt this out recently: it is not enough to be law-abiding, people have to espouse “British values”.

A good example of “function creep” are the EU Conclusions on “Radical Messages” (“soft”, enabling law) which is a 70 question format to report individuals or groups. Its Scope is:

“Extreme right/left, Islamists, nationalists, anti-globalisation etc”

The Second target is refugees and asylum-seekers fleeing from war, poverty and persecution - in the Med and around EU land borders a new more sophisticated “Fortress Europe” is under construction – one that is also prepared to go to “war” to stop the flow of migrants.

The Third target is migrant communities targeted for surveillance, infiltration. Trying to recruit informers, The PREVENT programme has fuelled racism and contaminated the social and political lives of these communities.

The Fourth target is domestic political activity: The definition of UK “domestic extremism” includes:

“the activity of groups or individuals who commit or plan serious criminal activity motivated by a political or ideological viewpoint”

HMIC have advised the government to delete this section from the definition – they have declined to do so.

The Fifth is as old as capitalism: the targeting of inner city/”sink estates” where the preclariat, skilled but no chance of meaningful work, and the underclass with no skills and no hope, tend to riot occasionally.

The Sixth target is EU cross-border protests:

- extensive pre-planning across 28 Member States, the appointment of “spotters” who track “ring-leaders”

- undercover police

- kettling, dispensing justice on the streets

- use of para-military police units, tear gas, rubber bullets, water cannon drones

- proposed database on “trouble-makers”

The Seventh target is everyone living in the EU:

- surveillance of all communications (Mandatory data retention, declared unlawful by the CJEU in April 2014 but the practice continues.

- the surveillance of travel, EU-PNR

2. The EU state

To understand all the above development, to put the policing and security state and the surveillance society in context a concept of the state is central.

We are I believe nearing a “tipping” point where “state-building” will show the EU state is in place – for all those who want to see it: My adaptation of a well-known Gramscian perspective:

“The EU state arbitrates in the interests of capital as a whole (both economically and politically) resolving/”harmonising” differences between competing individual capitalists and the competing interests of the Member States to advance a neo-liberal agenda and to contain overt opposition. While the repressive and surveillance capacities of the EU are being built up the EU state and its power elites use their power and influence to shape the perceptions of the people as to the legitimacy of the EU and the futility of resistance.”

Also see excellent article in latest Race & Class: “Transnational capital and the technology of domination and desire" by Jerry Harris:

“The National Security Agency would argue that such a world is all for our safety, to make us more secure and comfortable as we partake in our daily liberties that it protects. It seeks our consent to approve the coercion of those who get out of line. But just what defines a violation is in the hands of the data masters, and so their threat becomes universal.”

And:

“The Gramscian dialectic of consent and coercion is at work when surveillance is sold as transparency, and transparency is presented as democratic access.”

3. The UK state

The above point mirrors what I say in talks about UK/GCHQ/MI5 etc:

Where before the existence of GCHQ and 5 & 6 was officially secret we now know they exist, see their ads for jobs in the papers, their Heads are named and even appear before Select Committees – real transparency, so nothing more to fear. The fact that the content and targets of their operations are as secret as ever is forgotten.

The agreed definition of extremism, which the Home Office will use to decide who to blacklist, is this:

The vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs. We also regard calls for the death of members of our armed forces as extremist.

PM Cameron:

“For too long, we have been a passively tolerant society, saying to our citizens 'as long as you obey the law, we will leave you alone',” he said.

“It's often meant we have stood neutral between different values. And that's helped foster a narrative of extremism and grievance.”

Speaking on BBC Radio 4 today, however, the Home Secretary Theresa May said that tolerance and rule of law were ‘British values’.

“The measures are part of a bigger picture, a strategy which will also have as a key part of it actually promoting our British values, our values of democracy, rule of law, tolerance and acceptance of different faiths,” she said.

Seminar 3 Position Statement: John Lloyd, Reuters Institute, Univ. of Oxford

by John Lloyd

Senior Research Fellow, Reuters Institute, Univ. of Oxford

Contributing Editor, Financial Times;

Columnist, Reuters. com; La Repubblica, Rome.

Chairman of the Advisory Council, Moscow School of Civic Enlightenment

Wikileaks, and especially the NSA leaks, face journalism with  particular challenges, both new and familiar.

First is that which has been posed most clearly by Glenn Greenwald, who argues (with others) that the Snowden revelations have moved journalism into a new era: from being merely sceptical about authority, especially that of governments, journalists should become overtly suspicious of, even hostile to, the state and especially the intelligence services. The rationale for this is that they have both hidden, and lied about, programmes of monitoring domestic and foreign citizens' communications in the name of security.  They have lost all rights to an implied trust.

Second, assuming this position above isn't taken,  is the choice which must be made by editors as to what to publish and what not to publish - that is, how far and on what grounds should editors acceded to requests by governments not to publish material which is said by the intelligence services to be harmful to national security and/or dangerous to intelligence officers?

Third, as the intelligence world becomes more complex, how far are journalists competent to understand the criteria and processes used by the intelligence agencies - and thus how far should they seek closer relationships in order to grasp more fully the nature of the work, with the attendant danger that they would be consciously or unconsciously co-opted into the agencies' world and lose distance from their subjects?

Seminar 3 Position Statement: Iain Bourne, Group Manager – Policy Delivery, Information Commissioner’s Office

 by Iain Bourne

These views are my own and do not represent the ICO.

This is a difficult debate and one in which the secureaucrats are always at a disadvantage. Explain their successes may mean revealing secret intelligence gathering techniques or prejudicing current or future operations. And when our agencies do try to further transparency – for example by publishing the outlines of cases or statistics about operational successes – their critics will simply not believe the information to be true. So really the agencies can’t win and the debate is framed in terms of (dis)belief and political scepticism rather than evidence of what information is being collected, how it is being used and what the result of this is.

Any system of transparency must take place within the bounds of the law. It is not for individual operatives to make decisions about the release of secret information the consequences of which they cannot accurately predict. Maybe there is no place for whistle-blowing in national security contexts? We have two main pieces of transparency law – freedom of information for information held by public authorities (including the police and security agencies) and data protection for accessing your own personal information. Neither gets you very far. Both contain very powerful exemptions relating to national security. In data protection law, the DPA is essentially suspended where an exemption from its provisions – for example those relating to transparency - is required for the purpose of safeguarding national security. A Ministerial Certificate is conclusive evidence of this. End of story. In FOIA, to be exempt, the information requested from one of the agencies simply has to have been supplied directly or indirectly by one of the named security bodies, or relate to one of those bodies. As it is a class based exemption there is no need for the disclosure to prejudice the work of those bodies in any way. The duty to confirm or deny whether information is held is also suspended. End of story. 

Some won’t like this, but the power of these exemptions – which means in effect that individuals have very little or no statutory right of access to information held by the agencies – ultimately reflects the will of Parliament. If we want more transparency we will have to pass different laws and there is no political appetite for that. In a democratic system this principle must be respected, by those working for the agencies and by everybody else. It is initially for the regulator (in this case the ICO) and ultimately for the courts to make the decision as to what degree of access – if any – the public has to information about the work of our agencies. We have to accept the fact that the agencies will go about their work and in reality outsiders will know very little about it. Maybe that’s the best outcome in terms of public security if not informational transparency. If you can only have one or the other, which would you prefer? 

So how can we improve things – assuming the improvement is needed? Maybe the Interception of Communications Commissioner’s annual report could provide more operational detail, although the ICC recognises that “it is a challenge to provide a full public account of what the intelligence agencies in particular actually do because much of the operational detail is sensitive for understandable reasons”. The ICCs reports though do contain a lot of information about the scale of authorisations for interception and so forth, if people can be bothered to read it. How much more do we want to know? How much more can we know?  What do those that criticise the national security agencies on the grounds of a lack of transparency actually want? Is there an exemplar model in operation elsewhere? What do citizens of other countries get to know that we don’t, if anything? I expect the situation is pretty much the same everywhere and there’s a reason for that. 

It is important to stand back and consider the political context of all this. Many of those who care to think about state surveillance and the work of the agencies – most people don’t and why should they – would probably see themselves as the beneficiaries of state surveillance rather than as its victims. This is because they believe that the state – our state at least – is essentially benign and is acting in our interests: stopping the bad guys blowing us up or turning our critical national infrastructure off. In fact mass data collection – which is different to surveillance – has no impact on the vast majority of people. Have we really become less free or more psychologically inhibited as the result of it? No – this is a trade-off we are happy to make – we surrender some privacy for the protection of the state. A perfectly rational position based on trust. In fact our personal freedom is dependent on state surveillance. It may be possible to limit data collection and to target it more effectively. However, it is the ‘golden thread’ that connects information about people within a huge mass of data that can lead us to the bad guys. Those capacities are never going to be dismantled. We will never go back to collecting information only about known baddies because we don’t know who the baddies are, well not all of them.     

Seminar 3 Position Statement: Christopher Hird, Dartmouth Films

by Christopher Hird

 Dartmouth Films 

I write as the former managing editor of the Bureau of Investigative Journalism and before that as a journalist on the Economist, New Statesman and Sunday Times and as a reporter and producer of factual and current affairs television. Since 2008 I have run Dartmouth Films, an independent documentary company. I also write a “position paper” with some caution as those attending the seminar are much more versed in these matters than I am. However, I hope I can bring some perspective as a practising journalist to the discussion.

I think it worth noting that the building of a media agenda around the narrative of national security as a means of suppressing the work of journalists – and, indeed, oppressing journalists themselves – is not new. In particular, in the second half of the 1970s the Labour government successfully deported two US citizens - Philip Agee (a CIA whistleblower) and Mark Hosenball (a journalist) on the grounds that their reporting of the CIA’s undercover work was a threat to national security. When a British former soldier – John Berry - knowing that what Agee was saying was true, contacted two journalists – Crispin Aubrey and Duncan Campbell – all three were arrested and charged under the Official Secrets Act. Although, in the end, the trial effectively collapsed it was far from a foregone conclusion that it would. 

In the context of this seminar, the point to emphasise is that the line pedalled by the government and in private briefings to the media  was that these five were a threat to national security – a narrative reinforced by witnesses in the ABC trial (as it was known) not being identified. And further reinforced in my own case – as one of the people standing bail for the accused – by telephone calls from Special Branch to my employers (the Daily Mail) underlying the seriousness of the offences.  

The media consensus – until the collapse of the ABC case – was very much: if a Labour government says these people are a threat to national security, then we should trust them. At the time, the only media organisations which consistently attacked this position were Time Out (which had published Hosenball’s work and employed Aubrey) and the New Statesman (who had decided to employ Campbell) – the latter running brilliant essays by EP Thompson on – among other things – the cosy and corrupting relationship between the security services and the national newspapers. (The case and the operation of the secret state were all discussed in Crispin Aubrey’s 1981 book: Who is Watching You? Britain’s Security Services and the Official Secrets Act)

35 years on what has changed? Well, starting with the good news: The Guardian. Unlike in the 1970s there is a major media organisation which is willing to devote a substantial amount of money to challenge the unaccountable operations of the secret state, as its publication of the Snowden papers demonstrates. Faced with a lack of transparency around the operation of the security services, imagine a world without the Guardian : remember that its publication  of both the Wikileaks disclosures and those of Snowden provoked some of the Guardian’s competitors to launch attacks on the paper, claiming that they undermined national security – claims often based on briefings from unnamed “security sources”. 

The bad news. That UK legislation to ensure that journalists can do their job of ensuring appropriate transparency of state and other agencies is not fit for purpose. In my capacity as Managing Editor of the Bureau of Investigative Journalism I am one of the people who has taken the British government to the European Court of Human Rights in an attempt to secure a ruling that the Regulation of Investigatory Powers Act 2000 is a breach of the European Convention as it allows for mass surveillance of journalists’ (and others) communications. In the 1970s they tapped Crispin Aubrey’s phone. Today sophisticated computer programmes can routinely search and analyse all our communications – phone and emails.