How Great Britain Is Handling Its Post-Snowden “Intelligence Reform”

on February 1 | in cyber, Europe, Intelligence Collection, Oversight, surveillance, Terrorism

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The very American origins of the Edward Snowden/NSA controversy often means the episode’s impact outside the U.S. is often overlooked. Yet across Europe,  “intelligence reform” is occurring, although the scope of those reforms is rather uneven. American observers should nonetheless monitor these debates more carefully, since tinkering with the global signals collection architecture could have real consequences for the U.S and its allies.

Take the debate currently underway in the United Kingdom. Snowden’s leaks implicated Britain’s signals intelligence agency, GCHQ, pretty much immediately after a Guardian story focused on its access to material collected via the then-classified PRISM program. Other revelations quickly followed, such as GCHQ’s ability to attach intercept probes to fiber-optic cables carrying internet and phone traffic; its development of specific internet buffers, enabling it to store this data  (Operation Tempora); and its ability to intercept and store webcam images (Operation Optic Nerve).

Yet compared to the uproar in America, the British public’s reaction to all this was somewhat muted. In the UK, there truly is a historical and cultural attachment toward gentleman spies, which may go a long way in explaining this more relaxed attitude toward GCHQ’s activities.

Still, these stories – and the fact Washington was also exploring ways to reform the system – meant by the spring of 2014, London was also taking tentative steps towards intelligence reform.

The legislation which immediately came under examination was the Regulation of Investigatory Powers Act (RIPA) 2000, the legal framework that underpins the government’s interception of communications. RIPA has long been regarded as overly complex, confusing, and dense. Particularly disliked by privacy advocates was Section 8(4), which was used to justify Operation Tempora.

Section 8(4) proved controversial for another reason: It was not just the volume of communications being swept up, but it was also because it was taking place using a general warrant. This meant a specific individual or premises being targeted need not be identified on the warrant itself. Instead, collection just needed to be for a specific purpose (i.e. national security; preventing or detecting serious crime; or safeguarding the UK’s economic wellbeing).

Britain’s top counterterrorism official Charles Farr offered the following explanation why this type of warrant was needed:

Within the British Islands, the government has sufficient control and considerable resources to investigate individuals and organisations, and it is feasible to adopt an interception regime that requires either a particular person, or a set of premises, to be identified before interception can take place. Outside the British Islands, the government does not have the same ability.

In other words: good luck obtaining the SIGINT you want in southern Yemen or northern Syria without this capability.

All this played into the broader (and actually pre-Snowden) debate in the UK over Communications Data (CD) collection. This refers the context of a communication – the ‘who, when, where, how’ – but not the specific content (the ‘what’).

CD is used in all manner of investigations—counterterrorism, child exploitation, organized crime— as well as used to identify and locate suicide risks or threatening callers. Just like the U.S. metadata collection, Britain’s collection takes place in bulk, creating concerns over the power the government had to ‘snoop’ on its citizens.

To deal with these thorny issues, the government commissioned a series of reviews. The result of this collected wisdom was the Draft Investigatory Powers bill, itself now under review by a Parliamentary committee.

In its current form, the bill would change the oversight process for collecting intelligence in the UK. Previously, a Secretary of State (such as the Home Secretary or Foreign Secretary) signed off on all warrants. In the UK, there is no FISA court equivalent, but rather Independent Commissioners. These Commissioners had previously held high judicial office, reported directly to the Prime Minister and exercised a quasi-judicial oversight.

In the past, these Independent Commissioners could only review warrants retrospectively rather than in real-time. Now, judicial commissioners have the ability to veto a Secretary of State’s warrant; while a newly appointed, empowered, and well-funded Investigatory Powers Commissioner will provide oversight over the intelligence agencies’ work.

Furthermore, while the state is not giving up its bulk collection capacity, the bill provides some degree of clarity regarding the UK’s powers on this front, among a series of other reforms.

Yet some still argue the bill does not go far enough to protect privacy while formalizing the state’s awesome power to ‘snoop’ on ordinary citizens. To be sure, there is never going to be a perfect solution, but on balance these fears seem farfetched. One official once suggested this analogy to me: we British are generally relaxed about the army having sophisticated weaponry is because there is faith it will not turn them against the population. Systemic checks and balances, along with keen democratic oversight mechanisms, seem sufficient.

The same logic should apply to the intelligence world. The debate should be less on capacity and more on the culture and professionalism of intelligence agencies, along with the oversight of them.

London’s approach may not be perfect, and the Draft Investigatory Powers may yet still be watered down during the Parliamentary debates. However, in its present form, however, it offers a useful template for other democracies wrestling with similar issues of surveillance and civil liberties.

Robin Simcox is the Margaret Thatcher Fellow at The Heritage Foundation. Follow him on Twitter at @robinsimcox.

photo: GCHQ’s Foyer (GCHQ)

 

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