Saturday, November 02, 2013

Debate on oversight of intelligence & security services Part 1

The UK parliament finally got round to debating the implications of the Snowden revelations on Thursday afternoon, 31 October. The Hansard record of the debate is now available. Thanks to the Open Rights Group for pointing out also have a transcript of proceedings. With a handful of exceptions it was depressingly ill-informed and two dimensional. Contributors were either
  • Against mass surveillance - and make no mistake that is what this blanket electronic data collection, processing and retention is, even if you, as so many of the pro faction did, contend that there is no surveillance if only the computers 'see' the data - and, sadly, for "balancing" privacy and security, the false underlying assumption being that these are opposites; whilst insisting that doesn't mean they don't support the hard working intelligence & security services; and noting that the brave Guardian has done us all a public service and it was appalling they were accused of undermining national security when they hadn't
  • For mass surveillance in the mistaken belief that it will help our hard working boys and girls in the security services to catch those bad bad bad terrorists; and anyone who has the appalling cheek to question the integrity of the security services is just a lover of pedophiles, terrorists, drug dealers and other criminals; and by the way the Guardian are treacherous traitors who had undermined national security because the anti mass surveillance crowd had no proof that they hadn't; with the occasional dose sarcasm from those who could not muster up sufficient pompous indignity - why are you fools so shocked that spies are doing their job and spying?
Julian Huppert (anti) opened the debate.
"As technology changes and the capacity of the state and companies to collect and analyse data grows massively, we are in danger of sleepwalking into a surveillance society on a scale that peacetime Britain has never seen. It is not planned, and nor is it the actions of malevolent individuals; it is merely the natural trend of what will happen if nothing is done to stop it.
It can be argued that the definitions of war and peace are no longer the same, and that our enemies are faceless and splintered and will attack our way of life if we give them an inch—that argument is often made by Prime Ministers and Home Secretaries—but if we shape our laws solely in response to that fear, chipping away at our own liberty and privacy, those enemies have already won.
The key questions of security, privacy and liberty in a digital age will come to define the 21st century. The world is changing. All of us carry around tracking devices, in the shape of our mobile phones, wherever we go. We carry devices that can be activated and controlled remotely and that store much of our most personal information. Who can read it? Who has access to that information? How do we want to protect it? We have to agree the rules now, before we lose control completely."
Julian Smith (pro), who else, interrupted to say
" Does my hon. Friend agree that the very people about whom he is talking have been put under grave threat by some of the reporting, particularly by The Guardian newspaper, of the leaks?"
D Huppert responded:
"No, I do not. I understand that the secretary who looks at the defence advisory notices has confirmed that nothing has been published in The Guardian that suggests a risk to life. The Guardian has not published photos on its website of anybody who works in the area without pixellating their faces."
Touché! That'll be a reference to Mr Smith publishing a photo on his official website of staff from Menwith Hill without pixellating their faces.

Caroline Lucas (anti) stepped in to make the point that the obsession with the Guardian was extraordinary. Wide ranging debates about mass surveillance were taking place all over the world and the UK is trying to stifle discussions and shoot the messenger.

Mr Huppert went on to suggest the UK sign up to the International Principles on the Application of Human Rights to Communications Surveillance. He also asked if we would be concerned if we found out the Chinese were tapping the prime minister's phone and by the way a Chinese company, Huawei, supply a lot of the equipment that makes up the core of our network infrastructure.
"I suspect that our intelligence agents would not miss the chance to install some equipment if we were given the chance to put in the backbone of the Chinese internet, so we should not assume that the Chinese would miss such an opportunity...
Individual surveillance is one thing, but the mass hoovering up of information enabled by new technologies has changed the system completely. It means that suspicion no longer comes first. I think that very few people think it inappropriate to target individuals where there is a serious suspicion of wrongdoing, but in the new approach, we are all suspects whose personal histories can be foraged through if ever there is interest in us later."
ID card cheerleader and former Home Office minister Blears popped up to give us the benefit of her er wisdom - mass surveillance was essential and stopped loads of terrorist plots in her day. The usual vague claims of secret amazing success and no mention of the flawed decision making leading to the shooting of innocent men and the killing and maiming of hundreds of thousands of innocents in Iraq and Afghanistan.

Once Julian Huppert concluded his contribution the chair of the session, Linda Riordan, said 12 people wanted to speak so she'd be imposing a 10 minute limit on each. Just think of that. On something as important as the operating and oversight of an infrastructure of mass surveillance, only a dozen of our 650 members of parliament could be bothered to show up with some prior preparation.

Tom Watson was next up and, disappointed he was only getting 10 minutes, posted the full speech he would have made on his website.
"At the heart of this cross party debate today is GCHQ’s own big data programme, Tempora, and its impact upon our citizens’ fundamental rights. It’s a new and profoundly challenging issue for policy makers. We have to answer questions about the nature, the scale and the depth of surveillance that should be tolerated in our democracy...
And let us be clear, if the Minister is telling us that the law permits such fundamental abuse of liberty, then the law is wrong, and the law must be changed.
I suspect the minster may point to section 16 of RIPA to suggest the Tempora programme is legal.
Interpreting S.16 of RIPA requires unravelling a triple-nested inversion of meanings, across six cross-referenced sub-sections, linked to a dozen other cross-linked definitions, and all dependent on a highly ambiguous “notwithstanding”.
It is probably the single most confusing and complex drafting ever put on the statute book, and I have heard that a former GCHQ Director said that it was drafted this way intentionally...
There is not a snowball’s chance on a hot day in Strasbourg that this will pass the tests of foresee ability and quality of law required by the European Convention (of Human Rights)"
I can't disagree with him about the spaghetti code of s16 of RIPA. Mr Watson's other significant contribution was in noting the practice of stripping citizenship from individuals with suspected terrorist connections.
"The Bureau of Investigative Journalism has highlighted the uneasy relationship between deprivation of citizenship, intelligence sharing with US, and targeting of former British citizens in drone strikes in Somalia. The concern is that citizenship may remove one obstacle on information sharing for the purpose of targeting British people...
David Ormand ex head GCHQ...mentioned the ‘ethically ambiguous position of the British public’ here because, he said, people here had benefited from the US drone programme, even though it would not be permitted in the UK. This can’t be right – the British public would surely be alarmed to hear that data collected in UK or on British citizens (or indeed anyone else) might end up being used to implement the US targeted killing programme – described as war crimes by Amnesty international."
Next up was the third co-sponsor of the debate, Dominic Raab (anti mass surveillance). He paid tribute to MI5 Director Andrew Parker for an under-reported aspect of his recent speech.
"While discussing trying to reduce the terrorist threat, he observed:
“In a free society ‘zero’ is of course impossible to achieve...A strong record of success risks creating an expectation of guaranteed prevention. There can be no such guarantee.”
Similarly, any democratic Government must be accountable to their citizens, particularly if they impinge on their citizens’ freedoms in the necessary pursuit of security. In recent years, UK surveillance of its citizens has increased exponentially, and the legal basis has sometimes, and now regularly, appeared strained at best. Oversight is frayed and legitimate debate is at risk of being drowned out by frankly untested assertions of national security.
In June, The Guardian published revelations by US National Security Agency whistleblower Edward Snowden that GCHQ was clandestinely tapping transatlantic fibre-optic cables, giving almost unfettered access to people’s phone call records, e-mails, Facebook entries and the like. The legal basis for Operation Tempora looks thin at best, and Parliament certainly had no idea of the scale of the use of those powers.
We also learned that Britain receives data from the US Prism surveillance programme, which appears to allow GCHQ to dilute—not circumvent entirely, but dilute—the safeguards that would apply if the same agencies were to gather the information themselves."
Mr Raab was particularly robust in rebuking the fear mongering of an intervening MP who was implying that terrorists are everywhere
" I thank my hon. Friend for his intervention, but he is wrong as a matter of fact. According to the terrorist threat assessment given publicly in annual speeches by successive director-generals at MI5, there was a spike—
My hon. Friend is shaking his head, but this is what the MI5 director-general said, so we ought to pay it some heed. There was a spike after 9/11, but it then dipped. In the most recent speech, given this month, the director-general said that the threat had not got worse...
In this month’s speech, the MI5 director-general also lambasted The Guardian for handing terrorists a “gift”—he used a potent word. More recently, Ministers have claimed that the disclosures have put lives at risk. I want to take that seriously, because Mr Parker claimed that making public
“the reach and limits of GCHQ techniques”
breaches national security. To be clear about what was being discussed, the newspaper was not disclosing interception techniques—the technical aspect—or revelations of sources or operatives, which would clearly be a major source of concern, but simply revealing our intelligence “reach”. I find the assertion that was made difficult to take at face value. The contention may be true, but it cannot be taken on mere assertion.
Any serious terrorist groups assume that their phones, e-mails and internet use will be monitored. That is no secret, and learning that Western spies drain the swamp of their own citizens’ data in the process does not aid terrorists in any tangible way. If national security had been materially breached, why has no one at The Guardian been charged or even arrested since the search of its offices back in July? Why was David Miranda not arrested and bailed, following his detention for several hours at Heathrow, in August?
Either UK law enforcement is surprisingly slow—given the assertions—or national security is being used as a fig leaf to muzzle disclosures that are just plain embarrassing.
I accept, by the way, that the disclosure that 850,000 contractors can access data from Project Tempora represents a security concern, but of course that vulnerability is entirely of the Government’s own making.
I am prepared to be proven wrong about all that, but Ministers and intelligence chiefs need to understand that the bald assertion of national security cannot be used to guillotine all debate. We are here to correct that understanding. Without revealing details that would prejudice the work of the security services, we need a coherent explanation of the damage to national security, not only vague and opaque assertions.
From reports in The Guardian, we also know that the Government are concerned about the legality of the powers that they are using—fears that public debate might lead to litigation, fears about legal challenge under the Human Rights Act. Those are legitimate concerns. I recall similar ones from my own experience of working with the agencies as a Foreign Office lawyer. Those, however, are altogether more nuanced concerns than the shrill and unsubstantiated suggestion that we have somehow lost track of terrorist plotters as a result of the revelations."
Very well said. He went on to assert with some justification that successive governments have been remiss in pushing and deploying mass surveillance, that the Intelligence & Security Committee charged with overseeing the security services is not fit for purpose and that, as Karl Popper said
“We must plan for freedom, and not only for security, if for no other reason than only freedom can make security more secure.”
He then concluded:
"We need to pursue our security in a way that respects our freedoms, limits incursions to genuine cases of national security and does so under a regime that commands the rule of law. Failing to do that would be the real gift to the terrorists—a victory for everything that they believe in and a blow against everything we stand for."
Mr Raab is to be congratulated for one of the few thoughtful and balanced contributions to the debate and his speech should be read in full by anyone with a serious interest in or commitment to democracy. And thanks to him, Dr Huppert and Mr Watson, who were also reasonably well briefed (though I'd encourage Dr Huppert to avoid repetition of the security v privacy balance false dichotomy), for finally getting the matter raised in a parliamentary debate. It was a shame though not unexpected that the debate itself, with some exceptions, descended into little more than sales pitches and sniping from opposite sides, the anti mass surveillance crowd being marginally the better informed of the two.

I'll post some further thoughts on the debate when I get the chance.

Update: Part 2 and Part 3 now done.

Thursday, October 31, 2013

Oversight of the intelligence and security services

Parliamentary debate on oversight of the intelligence and security services started 1.30pm, Thursday, 31 October 2013.

Beware the kite-flyers on surveillance, legal aid, judicial review

Retired Appeal Court judge, Stephen Sedley, is always good value. I'd recommend his "Beware Kite-Flyers" piece in the London Review of Books Vol. 35 No. 17 · 12 September 2013 pages 13-16. It is ostensibly a review of The British Constitution: A Very Short Introduction by Martin Loughlin
Oxford, 152 pp, £7.99, April, ISBN 978 0 19 969769 4.  

"a statutory surveillance regime shrouded in secrecy, part of a growing constitutional model which has led some of us to wonder whether the tripartite separation of powers – legislature, judiciary, executive – conventionally derived from Locke, Montesquieu and Madison still holds good. The security apparatus is today able in many democracies to exert a measure of power over the other limbs of the state that approaches autonomy: procuring legislation which prioritises its own interests over individual rights, dominating executive decision-making, locking its antagonists out of judicial processes and operating almost free of public scrutiny. The arbitrary use of sweeping powers of detention, search and interrogation created by the (pre-9/11) Terrorism Act, which recently made headlines with the detention of David Miranda at Heathrow, illustrates a long-term shift both in what is constitutionally permissible and in what is constitutionally acceptable. The former may be a matter for Parliament, but the latter is still a matter for the rest of us."
He is also scathing about the Blair government's "making the Lord Chancellorship a secondary occupation of the new secretary of state for justice" and the current government's cynical exploitation of that change to dismantle our legal aid and judicial review processes.
"The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable. The incoming legal aid reforms were introduced by a consultation paper which gave a dismissively short time for responses and parodied its own case for attenuating legal aid by pointing out that people affected by unlawful state action ‘may represent themselves in court, seek to resolve issues by themselves, pay for services which support self-resolution, pay for private representation or decide not to tackle the issue at all’. This is an argument not for modifying or reducing legal aid but for abolishing it, something the Treasury has wished it could do for half a century, but which the consultation paper, describing legal aid as a ‘hallmark of a fair, open justice system’, purports not to support.Instead, Grayling’s proposal is to undermine judicial review by starving claimants of legal aid on several fronts...
In recent years a practice has developed – routinely denied by ministers but privately confirmed by their civil servants – of flying kites as lightning conductors: a consultation paper or a bill will include an outrageous proposal which government neither needs nor particularly wants (an example in the legal aid consultation was the proposal, now dropped, to deny criminal defendants any choice in the lawyer to represent them). When it has served its purpose of distracting attention from other objectionable provisions, it can be abandoned. The trouble is that there are so many other objectionable proposals in the current legal aid consultation, it’s not easy to know which, if any, of them are kites. What we do know is what the 145 barristers who, as members of the attorney-general’s panels, argue cases on behalf of the central state, wrote to him in their joint letter: ‘We consider that the proposals in the consultation paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular.’"

Monday, October 28, 2013

Schneier and Drake at the Stop Watching Us rally

Bruce Schneier and Thomas Drake talking sense at the Stop Watching Us rally in Washington DC on 26 October 2013.