Seminar 5 Position Statement: Dr Paul Lashmar

The Problems of Accountability in an Age of Mass Surveillance

Paul Lashmar

University of Sussex

If you go to the Cryptome website submissions for the 10 February 2016 you will find a document marked GCHQ Malware /Boing Boing. It is a GCHQ document “HIMR Data Mining Research Problem Book” shared by the Five Eyes and one of the documents leaked by Edward Snowden that has been released into the public domain. It is marked ‘UK TOP SECRET STRAP1 COMINT US/CAN/NZ/UK/US EYES’.

Snowden says of the document: “This GCHQ research report dated 20 September 2011, co-written by researchers at Heilbronn Institute for Mathematical Research HIMR based at the University of Bristol, concerns the use of data mining techniques to develop usable intelligence as well as the contradictions that arise from the use of algorithms to identify wrong doers, or potential wrong doers. The paper also provides a great deal of background information on GCHQ operations and the detailed discussion of network theory demonstrates the power of metadata collection.”

Putting aside academic involvement in intelligence, the issue this document brings to the fore is this: Here is a 99 page document on big data problems for GCHQ and the complexity of the programmes, methods and mathematics it refers to is such that you would have to have a good level of knowledge of GCHQ projects and a good grasp of relevant programming and associated maths to make much sense of the content. And this document was written for a wider than a specialist audience!  I chose this document not at random, as I was just updating myself with what had been recently added to Cryptome, but because it struck me it is an example of how difficult it is to monitor the modern SIGINT intelligence service. Of course, even if you went back to Alan Turing and Bletchley Park you would find programming and maths problems that few but specialists could have grasped. It is question of scale. GCHQ has expanded massively in the last ten years as has its data capture capability and what we now have is part of a huge intelligence-industrial complex that spans not only the Five Eyes countries but also the 35 partner countries. There is a huge array of highly technical programmes and developments underway – all with implications for the way we live. There are huge vested financial interests in the development of surveillance technologies and this in itself needs independent scrutiny. There is growing evidence that aside from passive data collection intelligence agencies have powerful interventionist capabilities. Even more worrying is the engagement with behavioural intervention, encouraging people through covert programmes to change their behaviour.

It is fortunate that Boing Boing website, which originally released the document, have given a reasonable account of what it means.

Nonetheless the document demonstrates the problem of comprehension for external oversight. After monitoring intelligence for four decades I would suggest history teaches us that the intelligence community almost always exceeds its powers where the official oversight is weak - and it always is. Home Secretary Theresa May’s admissions in October 2014 indicate that GCHQ bulk collection was most likely illegal but Government supported. So where does that leave accountability and oversight? The most consistent and effective oversight mechanism has been the media. But the economic forces at play in the news media mean there are now only a handful of national security reporters. I doubt if any have struggled to make sense of HIMR Data Mining Research Problem Book or its implications. The BBC’s national security reporting which should be exemplary is instead notably for its lack of critical analysis of the intelligence community.

So what about the official intelligence oversight? The dominant body is Parliament’s Intelligence and Security Committee. In the ISC report of February 2013 – thus pre Snowden - which, in effect, supported the government’s position that a Communications Data Bill - “the Snooper’s Charter” - was needed, there was no mention of mass collection of data, nor had there been in the ICC’s report of 2011. It was Snowden’s leaks which revealed that GCHQ was engaged in mass data collection. So did ISC deliberately not refer to bulk collection or did they not know it was happening? It is a fool or knaves question that needs to be answered. The revised Snooper’s Charter Mark Two – the Investigatory Powers Bill (IPB) – again allows for invasive of privacy rights with some amendments. The current arrangements for intelligence accountability have many critics, including the UK Parliament’s Home Affairs Committee, who published a report in May 2014 critical of the current system. ‘We do not believe the current system of oversight is effective,’ the report said. ‘The scrutiny of the work of the security and intelligence agencies should not be the exclusive preserve of the Intelligence and Security Committee.’ Gill echoes this when he observed: “But we have learnt of highly controversial policies such as rendition and torture and mass communication surveillance not from these formal institutional mechanisms of oversight in the UK; rather they have come as a result of whistle-blowers, legal action and investigative journalists” (2013, 3).

Official oversight in the UK, he stated, is insufficient: First, because of the inadequate legal basis for the authorisation and control of UK intelligence agencies and, second, institutions of oversight are overly-concerned with the legalities of intelligence practices compared with broader issues of ethics and public education. Effective oversight will always depend partly on an informal network of researchers, journalists and lawyers in civil society but a mature democracy must develop an oversight system with adequate powers and full-time research staff (2013, 4).

ISC investigatory capabilities have been poor. In fairness, I am told that ISC is developing its capability to monitor programming and mathematical side of its charge’s work. God knows what MPs would make of any of this without help. The feeble efforts of the Joint Committee on the Draft Investigatory Powers Bill have been embarrassing when not plain partisan.

At the moment the little accountability there is, is brought be a range of individuals at Intercept, Boing Boing and specialists like Duncan Campbell. It is not joined up. There is clearly a need for an independent grouping that can organise and sustain the expertise to analyse material like the Snowden documents to bring effective accountability to the UK’s burgeoning government, private and academic intelligence community. This in its turn would be the first step to multinational approach to monitoring the Five Eyes and their partners.