Monday, March 28, 2016
Seminar 5 Position Statement: Prof Pete Gill
Much of the debate provoked since 2013 by the publication of a trove of NSA/GCHQ documents in major media outlets has taken place within the traditional civil libertarian frame of suspicion and critique of states’ (formally democratic and otherwise) surveillance of citizens and others. The ‘others’ abused by what is variously described (by critics) as ‘mass surveillance’ or (by officials) as ‘bulk collection’ include not just foreigners but also the communication service providers (CSPs) who have been variously hacked, bullied or bribed by governments in their search for data. Major proposals for reform are under consideration in many countries and, unsurprisingly, are centred on the perceived need for laws that not only acknowledge the breadth of contemporary intelligence activities but also are ‘fit for purpose’ in the age of the Internet and social media networks.
Current laws have certainly been exposed as inadequate; in the UK, for example, the Regulation of Investigatory Powers Act 2000 has been criticised as outdated, irrelevant and opaque. As anyone who has tried to understand it will testify, it is certainly the last of these but, significantly, prior to June 2013, there was no clamour from government or the agencies that it was either of the first two. It had rather successfully ‘future-proofed’ the interception of communications (and other covert techniques) against technological innovation by describing powers very generally and ‘judge-proofed’ it by building in authorisation and oversight processes that met ECHR requirements. The Investigatory Powers Tribunal had upheld no complaints against the agencies until recent cases brought on the basis of information released as part of Snowden’s archive exposed faults in GCHQ’s internal practices.
Thinking about reform, we must note that ‘intelligence’ has, to put it mildly, an ambiguous relationship with law. ‘Legalisation’ of intelligence is relatively recent (only in Germany and Netherlands does it go back more than forty years…) and intelligence for security purposes is a central (realist rather than cosmopolitan) tool in the conduct of international relations. There are greater (ECHR article 8-inspired) legal restrictions on the use of intelligence domestically. But agencies such as MI5, MI6 and GCHQ are not the only intelligence actors. First, there are a range of other state agencies – police, border, financial – who develop intelligence. Second there are a range of corporate actors including specific security companies working on contract to governments or other corporations, companies involved in foreign operations where security is a major issue and companies providing the hardware and software products without which neither states not companies can operate. This gives rise to a crucial interdependence or symbiosis between public and private (described by Anna Leander and Didier Bigo as ‘hybridity’). These companies are not ‘victims’ of the state; they have essentially the same business model: the exploitation of people’s personal information in order to pursue organisational objectives.
Also relevant is the changed perception of risk since 9/11: compared with the Cold War, governments perceive current security risks as much more complex and uncertain and therefore demand as much ‘intelligence’ as possible from the agencies. More or less contemporaneously with this shift has been the digital revolution which, for the first time ever, seems to make it feasible to supply this by ‘collecting everything’. International intelligence collaboration has always existed, especially between allies during war, but has been much increased this century as a result of pressure from the US and the UN to respond to this heightened threat-perception. The most controversial example of collaboration after 9/11 was the use of ‘extraordinary rendition’ (aka kidnapping and torture) at the behest of the US and which involved the active cooperation and/or collusion of many other states including the UK. International intelligence cooperation is essential for security but has a great potential for the abuse of human rights. It cannot be dis-invented; therefore the issue is how it might be better controlled and overseen.
There are two main sources of ideas and experience: national oversight procedures established over the last 30-40 years, mainly in the Americas and Europe but also in parts of Africa and Asia and the legal and political processes by which rendition was exposed. Key to effective national oversight is that those responsible (whether inside or outside the Assembly) have a legal mandate to examine all aspects of intelligence, including international cooperation, have adequate resources in terms of staff expertise and full access to agency people and files, and, crucially, have the political will to deploy them. The main lesson to be drawn from the exposure of rendition is that formal parliamentary, extra-parliamentary or judicial oversight will always require supplementation from civil society organisations and media.
The more specific challenges to the oversight of international intelligence cooperation and some thoughts on how they might be met will be discussed at the seminar.
15 March 2016