Too many commentators conclude that we are sliding into a society where behavior is restricted by even the possibility of state surveillanceby / April 29, 2014 / Leave a comment
Demonstrators against PRISM wearing Edward Snowden masks: Have the whistleblower’s revelations led to undue paranoia?
© Mike Herbst
The latest Snowden revelation: the NSA has the capability—codenamed MINDPRISM—to mine the thought patterns of millions of people simultaneously, collection that may involve thousands of Americans. The Powerpoint slide has the logo of an eagle’s claw clutching a human brain. “With MINDPRISM, we can stay one step ahead of communication itself. If the target can think it, we can collect it,” an NSA official commented. “We used to know what Putin was planning before he called anyone we were covering now we’re just getting a lot of hummed Russian advertising jingles—even in the run-up to the Crimea invasion. We’ve lost a huge asset here.” Before readers reach for their keyboards, yes, you can read all about it on the Lawfare blog—for 1 April.
That April fool distils the essence of the debate triggered by media exposure of material stolen by Edward Snowden. Is there no limit to what the NSA is prepared to do by way of mass surveillance, to spy on Americans as well as foreign leaders? Would the intelligence oversight committees ever be told? Is it legal? Would our GCHQ work with NSA to use the technique to spy on the British population, and evade British law? And has the revelation damaged our security?
The purpose of intelligence work remains, even in the digital age, to help improve the quality of decision making by reducing ignorance about the threats that face us. Obstinately, there remains information that the enemies of our free society—the dictators, terrorists, insurgents, cyber-, narco-and paedophile and other criminal gangs—want to prevent us knowing. It is the very purpose of secret intelligence to overcome the will of these others and thus to support our military commanders, police officers and policymakers.
From that definition flows two conclusions. First, that there is inescapable moral hazard to collecting secret intelligence, not least from the intrusion into privacy that it can involve. The answer to that is to manage the risk through carefully drawn law and rigorous legal and Parliamentary oversight to maintain public trust that the behaviour of intelligence agencies is lawful, proportionate and necessary.
The second conclusion is that oversight must be managed so that the detail of sources and methods of intelligence remain confidential so that our adversaries are not forewarned.
These questions are capable of being sensibly answered if we can have a rational debate on the issues. But too many commentators continue to read into the Snowden material that we are sliding into a Panoptic state where behavior is restricted by even the possibility of state surveillance, despite the ample evidence that there is no GCHQ monitoring scandal to uncover. These critics make the common category error of not distinguishing bulk access to the internet—which the UK and its partners certainly need to find their legitimate targets—and so-called “mass surveillance” which they do not conduct.
Mass surveillance is about pervasive observation of the entire population or a substantial sector of it. Observation implies observers, human beings who are examining the thoughts and actions of the population. No such mass surveillance takes place on the UK population. Sir Anthony May, UK Interception Commissioner, concludes in his recent annual report—recall he has been one of the nation’s most senior judges—that “the interception agencies do not engage in indiscriminate random mass intrusion by misusing their powers…It would be comprehensively unlawful if they did.” As the Commissioner concludes, the main shape of the governing British legislation derives from and is fully compliant with Article 8 of the Human Rights Convention, the right to respect for private and family life; I can bear witness to that as the Permanent Secretary in the Home Office when the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000 were introduced and debated.
Interception can only be lawfully undertaken for one of the statutory purposes derived from Article 8, and cannot lawfully take place except by procedures and subject to safeguards designed to achieve that compliance. The staff at GCHQ, MI5 and MI6 have not the slightest interest in examining the general public’s emails, their phone or postal communications or their use of the internet, and they do not do so to any extent which could reasonably be regarded as significant. What GCHQ and its partners in pursuit of their foreign intelligence mission must have (for example to assess the risks posed by returning jihadists from Syria) is bulk access to large volumes of global internet traffic. This is a practical necessity given the exponential growth of such traffic and the nature of modern communications networks that chop every message into multiple digital packets each potentially taking a different route around the globe.
What we need from Ministers is a rational re-justification for the digital age of the contract between the people and government under which in return for protection, including protection of our human rights, we empower government with coercive means under the law, including armed forces and security and intelligence agencies, and the power to tax people to pay for them. After Edward Snowden, that task is now overdue.
David Omand will be debating this issue at HowTheLightGetsIn, the world’s largest philosophy and music festival, held annually over ten days in Hay-on-Wye in association with Prospect