Debate on oversight of intelligence & security services Part 3

On the day that The Guardian's editor is due to appear before the Home Affairs committee I thought it was time to round off my reporting on the parliamentary debate on the of oversight intelligence & security services. The debate is over a month old now and with the exception of the Guardian has, sadly, largely been ignored by the mainstream media.

Dominic Raab made the most telling contribution to the session, as I mentioned in Part 1. Part 2 of my report concluded with Malcolm Rifkind's endeavours to defend the Intelligence and Security Committee (ISC) which he chairs and the intelligence services his committee is tasked with overseeing. The committee has 9 members (7 MPs and two members of the House of Lords) and a part time investigator. The intelligence services have a staff of over 13000 and a 2013/14 budget of £2.1 billion, according to the Guardian.

Picking up again from Mr Rifkind's evidence, he believed -

• there is no interception if it is only done by computers and the data is not seen by a human being
• the Justice & Security Act 2013 has brought a "cultural revolution" to the ISC
• hinted that critics claiming that the ISC didn't know about the Tempora undersea cable interception programme did "not have the faintest idea whether the Committee was aware of programmes of any kind."
• computers are clever
• 99.99% of the data they gather and process is never looked at so describing the activities of the intelligence services as mass surveillance was unconscionable

He then responded to a question from Tom Watson about the dangers of automated mass data analyses:

"the intelligence agencies have far more important things to do than to look at patterns of behaviour, unless they are directly relevant to a terrorist threat or serious crime. That is their function and legal duty, and if they go beyond it, they are committing a crime—even if they had the time, which they do not have, or the inclination to do so...

no other country in the world, including democratic ones, has both substantial intelligence agencies and such a degree of oversight."

He concluded by noting the Justice & Security Act 2013 has given the ISC all the oversight powers that critics have been asking for and the committee should be judged on their use of those powers and

"Right hon. and hon. Members should by all means scrutinise whether we use the powers properly, but they should please do so on the basis of knowledge about the Act"

He's right that Right hon. and hon. Members should understand the Act but an at least rudimentary but preferably deep understanding of the technology and the mathematics is also crucial. Such understanding was not evident in the contributions of the members of the ISC to the debate.

Rodney Buckland (Conservative) was next in line and he raised the need for reform of the Regulation of Investigatory Powers Act (RIPA) and the question of Schedule 7 of the Terrorism Act, widely believed to have been abused in the detention of David Miranda at Heathrow airport. David Anderson QC, the independent reviewer of terrorism legislation, has recently indeed called for an end to detention at borders without suspicion. His note to the Home Affairs select committee on the matter is available at the Parliament website.

Mr Buckland felt "the threshold of reasonable suspicion should come into play at the point when a person is formally detained" under schedule 7. He concluded by criticising the Guardian and saying privacy was important but in a balanced way, so we could catch terrorists too.

At this point Graham Brady who had taken over chairing the session part way through said he was restricting the remaining 3 speakers to 6 minutes each.

Richard Graham paraded his colours as a former diplomat and an anecdote about his first professional stint abroad - his first phone call, he says, got interrupted by a 3rd party asking him to repeat his last sentence. Mr Graham's purpose seemed to be to-

• ridicule Julian Huppert, David Winnick and the anti mass surveillance side of the debate as being motivated by hysteria and naivete
• note the hilarity of the shock at the news that spies actually spy
• defend the honour and impeccable integrity, in addition to the law abiding citizenship and valour, of the chaps and chapesses in the intelligence services
• allow these good folks, without undue interference, the capacity to get on with battling the multitude of "more complicated and more sophisticated" threats we face - including include nuclear proliferation, cyber-attacks, attacks on our intellectual property, organised crime and new weapons - that could destroy us. (Interesting to see intellectual property getting a mention in this context).

Dr Julian Lewis followed Mr Graham. He had three points to make in addition to praising Julian Huppert (anti) and Martin Horwood (pro) -

• It is unacceptable for huge numbers of junior staff to have access to classified material
• It's harder to track people today than it was in the past (seriously!); therefore data on everyone needs to be gathered for post hoc mining; and so what if there are lots of irrelevant data haystacks
• Edward Snowden is no more a whistleblower than Julian Assange. What Snowden did was "irresponsible—" Unfortunately he didn't get to use his prepared label for Mr Snowden since the chairman cut him off, his 6 minutes were up.

Tobias Elwood was next and immediately undermined his contribution by stating

"The debate is about the balance of individual privacy versus the collective right to security."

No it really is not about balancing privacy and security. It is a completely false assumption to consider privacy and security to be opposites. Reinforcing cockpit doors has not undermined privacy in any way but is probably the single most important security measure brought into aviation since the 9/11 attacks.

Mr Elwood has suffered a personal loss due to a failure of the intelligence services to share information in timely fashion. His brother was killed in the Bali bombing as a result.

Diana Johnson stepped up to have a dig at Nick Clegg -

"Even the Deputy Prime Minister, given his recent comments to the media, appears to have missed the reforms that strengthened the Intelligence and Security Committee. That is surprising, considering he has 19 special advisers."

 - offer her interpretation of RIPA, express her confidence in the ISC and her hopes the committee will show its ability to conduct public hearings and restore public confidence.

At 4.18pm the Parliamentary Under-Secretary of State for the Home Department, James Brokenshire, got to his feet.and delivered a largely monotonal reading from his brief.

• the intelligence services do essential work "confronting the diverse terrorist threat that this country continues to face"
• the importance of scrutiny of the intelligence services is underlined by the loss of Mr Elwood's brother in the Bali bombing
• intelligence work should happen within a strict legal and policy framework and it does and it has strict oversight but the intelligence services need "to maintain an edge in tackling terrorism and stopping criminals"
• much oversight must happen behind closed doors to keep secret information secret
• secrecy is essential  
• intelligence services are overseen by more mechanisms than many other areas of government 
• the ISC is good and got more power this year from the Justice and Security Act
• in response to a question from Tom Watson on why Tempora did not receive parliamentary scrutiny Mr Brokenshire said it "not appropriate" for him to comment on such things in public
• when Mr Brokenshire prevaricated following a question from Dr Huppert on on whether the ISC can investigate on long running operations, Mr Rifkind jumped in to his rescue - the ISC "have completed discussions with the Government, the results of which will appear in a memorandum of understanding that will be published and include details of how these matters will be dealt with. That will ensure that that consideration cannot be used as an improper way of preventing the ISC from obtaining access to operations that—by any normal, common-sense approach—could be considered as completed."
• David Anderson QC, the independent reviewer of terrorism legislation is deserving of praise (mind you this was before Mr Anderson suggested restrictions on the use of Schedule 7 of the Terrorism Act)
• GCHQ doesn't look inside the UK - this is misleading since GCHQ does look inside the UK under section 16 of RIPA

Mr Brokenshire concluded:

"It is this multi-faceted oversight that complements rigorous internal controls within the agencies themselves. The agencies’ recruitment and training procedures are all designed to ensure that those operating within the ring of secrecy can be trusted to do so lawfully and ethically. A culture of compliance with both the letter and the spirit of the law pervades everything that they do...

 This has been an important debate, highlighting the strength of the scrutiny that we have and the different layers of scrutiny that operate in this country. I believe that we have every reason to be proud of those oversight arrangements and of the work of our agencies."

We've no reason to doubt that many of the intelligence agencies' 13,000 plus employees do some terrific work. Mr Brokenshire's claim that we should be proud of the scrutiny of the intelligence services doesn't pass the laugh test in the light of the reports all round the world based on the Snowden documents, however. We have every reason to be concerned that

1. 850,000 people have access to classified UK and US government material
2. the UK and US governments through the NSA and GCHQ have been complicit in the clandestine construction of an electronic infrastructure of mass surveillance
3. government intelligence & security services with the aid of large commercial organisations engage in mass surveillance - indiscriminately collecting, processing and storing the personal data - of that large proportion of the population using and/or visible to communications networks
4. the NSA and GCHQ have been systematically undermining encryption technology that underpins privacy and the security of commerce on the internet by encouraging vendors and standards bodies to build back doors into their systems
5. the notion that only the good guys will exploit such security holes is naive; they have through this process effectively destroyed trust in these systems
6. large technology companies have been quietly cooperating with all this, though once it became public they changed their PR approach to claim victimhood along with the masses
7. the laws to facilitate this mass surveillance are already in place and where they do interfere the NSA and GCHQ have operational methods for circumventing such inconveniences ('what not to say' rules when dealing with overseers)
8. those engaged in the formal oversight mechanisms of the intelligence services work have little or no understanding of the technologies involved, what exactly they are being used for and what the consequences might be
9. the UK government - with echoes of the Spanish Inquisition's, Nazi Germany's and Mao Zedong's book burning - is prepared to be responsible for the physical destruction of mainstream press equipment 
10. the UK government is prepared to threaten the press with D notices and prior restraint through the courts 
11. UK government ministers including the Prime Minister David Cameron are prepared to threaten the press (e.g in the debate on the European Council, Hansard Official Report, 28 October 2013; Vol. 569, c. 667.)
12. the NSA’s own internal auditors found its agents broke privacy rules thousands of times each year
13. the US government via the NSA reportedly route significant funds ($100 million) to the UK government intelligence service GCHQ 
14. GCHQ appreciate their "light oversight regime compared to the US" 
15. the secret US FISA Court's ability to oversee US spy agencies is very limited
16. US intelligence chief James Clapper lied (responded in the "least untruthful manner") to Congress about the extent of NSA surveillance
17. we have expanded secret courts in the UK
18. some of the regulations and laws governing the operations of the intelligence and security services are themselves secret
19. politicians are all too willing to demonise the messengers and trot out poisonous soundbites - the innocent have nothing to fear; our critics comfort/support our enemies/terrorists; government's first duty is to protect the public; be afraid but give us the power and we'll protect you; move on there's nothing to see; ...national security...; trust us we're acting within the law - to defend the indefensible and sate their ambitions
20. the fourth estate - mainstream broadcasters and press - in the UK has largely been content to ignore or marginalise Guardian revelations, allowing that publication to plow an isolated furrow on the Snowden affair; worse still the Murdoch press and the Daily Mail, in particular, have actively attacked and sought to undermine the Guardian reporting on the Snowden affair; fueling the government's political attack dogs' outrageous accusations that the Guardian is aiding terrorism by publishing Snowden's revelations
21. the UK is prepared to detain people (e.g. Glenn Greenwald's partner, David Miranda) at borders without suspicion to the limits of Schedule 7 of the Terrorism Act
22. the Secretary General of the Council of Europe, Thorbjørn Jagland, was sufficiently concerned to write to the UK Home Secretary about Mr Miranda's detention and the destruction of the Guardian's computers
23. the information consuming public take an essentially soporific attitude to all this
24. the US has been tapping the phones of world leaders including Angela Merkel, the German Chancellor
25. the surveillance infrastructure has been used for industrial espionage
26. the strong incentives now pushing towards the balkanisation of the internet

I would repeat, therefore, that the reporting of the Snowden documents, the behaviour of the US and UK governments and our respective intelligence & security services and the subsequent reaction to this have raised fundamental questions of public interest (even if, in our world of short attention spans, the public is only superficially and transitionally interested, if at all) about -

• security (no top secret can be secure if nearly a million people have access to it as a routine part of their jobs)
• privacy (you have none on the internet)
• anonymity (again you have none on the internet)
• free speech (when does a whistleblower become a traitor?; why and how is is ok to smash up a computer in the offices of the Guardian in the UK in 2013?)
• management and oversight of the police, intelligence and security services (what are the political, legal, environmental, societal, economic, technical and architectural checks and balances, if any and are they fit for purpose?)
• the size, power and reach of the security/intelligence/surveillance/anti-terror industrial complex
• secret courts (FISA, FISAAA 2008; the UK now has its own secret courts courtesy of the Justice and Security Act 2013 which came into force in June)
• circumvention of human rights laws and constitutional protections (Prism, Tempora, XKeyscore, GCHQ-NSA data sharing?)
• dangerous normalisation of activities that would have horrified earlier generations and been condemned as the actions & infrastructure of a despotic police state if connected with the Soviet Union, East Germany, China et al
• the surveillance activities implicated by the Snowden documents are a breach of international law not matter how carefully or effectively GCHQ or the NSA has circumvented their own domestic laws
• activities excused as efforts to secure the safety of citizens of one country should not violate fundamental human rights of citizens of another country
• Finally for now, as Brazilian president, H.E. Dilma Rousseff, said at the UN General Assembly recently, 

""The arguments that the illegal interception of information and data aims at protecting nations against terrorism cannot be sustained...

In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among Nations.

We face, Mr. President, a situation of grave violation of human rights and of civil liberties; of invasion and capture of confidential information concerning corporate activities, and especially of disrespect to national sovereignty...

Friendly governments and societies that seek to build a true strategic partnership, as in our case, cannot allow recurring illegal actions to take place as if they were normal. They are unacceptable."

Response from MP on parliamentary surveillance debate

My MP, Nicola Blackwood, has written to explain she could not make it to the recent parliamentary debate last week on oversight of intelligence & security services. She has also written to William Hague to raise the concerns I expressed in my note to her prior to the debate.

"Dear Mr Corrigan,

Thank you for contacting me about the debate on oversight of the intelligence services. I do apologise for the delay in my response.

Unfortunately, I was unable to attend this debate due to a long-standing diary commitment. I have, however, read the transcript of the debate and have engaged with Ministers about the issues raised. If you would like to read the transcript of the debate yourself, it can be found at the following address: http://www.theyworkforyou.com/whall/?id=2013-10-31a.333.0

I appreciate your desire to ensure that powers to intercept communication are confined to what is necessary and proportionate to protect our national security, and also to be accountable. It is important to remember here the important work our security services do in tackling terrorism and international crime. However, I firmly believe, as does the Government, that it is absolutely right for this intelligence work to be carried out in accordance with a strict legal and policy framework that ensure that activities are authorised and entirely necessary.

Ministers have assured me that to intercept the content of any individual's communications in the UK requires a warrant signed personally by the Foreign Secretary, the Home Secretary, or by another Secretary of State. Every individual decision is taken based on legal and policy advice and warrants are required to be absolutely necessary and carefully targeted. Furthermore, the Interception of Communications Commissioner also has oversight powers in relation to decisions about whether to authorise the use of intrusive powers, for example in authorising the interception of communication.

At a parliamentary level, the Intelligence and Security Committee (ISC) examines the policy, administration, past operations and expenditure of the intelligence agencies and parts of the wider Government intelligence community. I am pleased that the powers of the ISC have recently been extended by the Government through the Justice and Security Act 2013, which makes it a committee of Parliament; provides greater powers; and increases its remit, including oversight of operational activity.

Ultimately there remains a need for secrecy within the intelligence community to allow agencies to function effectively, but I have received assurances from Ministers that the activities of the intelligence agencies do not, and will not, go unchecked.

I have written to the Foreign Secretary, William Hague, to raise your concerns and shall of course be pleased to pass on any response I receive in due course.

Thank you again for taking the time to contact me about this important issue, and I hope this response is helpful.

Kind regards
Nicola"

Ms Blackwood is a member of the Home Affairs select committee which Guardian editor, Alan Rusbridger, will be appearing in front of at 3pm tomorrow, followed at 4pm by Metropolitan Police Commissioner, Bernard Hogan-Howe and Assistant Commissioner, Cressida Dick. I've sent her a short response.

"Dear Nicola,

Thanks for your response and apologies for the delay in getting back to you.

Though I haven't had the time yet to cover the entire debate, you might find it useful to scan my analyses prior to Guardian editor Alan Rusbridger's appearance before the Home Affairs select committee's counter-terrorism evidence session tomorrow afternoon -

Debate on oversight of intelligence & security services Part 1 at http://b2fxxx.blogspot.co.uk/2013/11/debate-on-oversight-of-intelligence.html

Debate on oversight of intelligence & security services Part 2 at http://b2fxxx.blogspot.co.uk/2013/11/debate-on-oversight-of-intelligence_6.html

Your time is short but I would particularly recommend you pay careful attention to your colleague Dominic Raab's contribution to the debate, available at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm131031/halltext/131031h0001.htm#13103154000332

I look forward to the Home Affairs committee proceedings tomorrow with interest.

Regards,

Ray"

The other members of the committee joining Ms Blackwood are Keith Vaz (Chair), Ian Austin (Labour), James Clappison (Conservative), Michael Ellis (Conservative), Paul Flynn (Labour), Lorraine Fullbrook (Conservative), Julian Huppert (Liberal Democrat), Yasmin Qureshi (Labour), Mark Reckless (Conservative), David Winnick (Labour). On past evidence we might expect Mr Austin to be critical of the Guardian and Messrs Huppert & Winnick to be supportive.

UK government opened UK citizen data to NSA

The latest, via the Guardian and Channel 4 News, on the Snowden revelations is that

"The phone, internet and email records of UK citizens not suspected of any wrongdoing have been analysed and stored by America's National Security Agency under a secret deal that was approved by British intelligence officials...

...an NSA memo describes how in 2007 an agreement was reached that allowed the agency to "unmask" and hold on to personal data about Britons that had previously been off limits.

The memo, published in a joint investigation by the Guardian and Britain's Channel 4 News, says the material is being put in databases where it can be made available to other members of the US intelligence and military community."

Good to see Channel 4 paying some attention -

Debate on oversight of intelligence & security services Part 2

With the exception of The Guardian the silence in the UK media about the parliamentary debate last week on oversight of intelligence & security services has been deafening. It is interesting to see the Independent in the past couple of days headlining UK spying in Berlin on the front page, though I doubt this is a harbinger of the cracking of the UK media dam on the subject.

Part 1 of my report on the surveillance debate ended with Dominic Raab's excellent contribution, so I'll pick it up from there. 

Labour MP David Winnick (anti mass surveillance) followed Mr Raab and opened by emphasising "the need for the security and intelligence agencies to work as required" even were we not faced by the threat of terrorism. He highlighted some past unsavory practices of government and the security services including the farcical censorship of Peter Wright's Spycatcher book, the security services culture of treating readers of the Daily Mirror as a threat and the more recent case of Binyam Mohamed, who had been subject to extraordinary rendition and torture. The Master of the Rolls,Lord Neuberger, concluded in 2010 that “Some Security Services officials appear to have a dubious record” on human rights.

An apparently angry red faced MP (according to Hansard this was Adam Holloway) jumped up at this point to demand whether, if there'd been a terrorist nuclear explosion in past few weeks, "the hon. Gentleman’s constituents" would change their minds about thinking Snowden was a traitor. Unfortunately that kind of distorted appeal to emotion was an all too common feature in the debate. Mr Winnick didn't accept that the Guardian's actions would lead to a nuclear attack or that there was the remotest shred of evidence that they had helped terrorists.

Mr Winnick then asked how the monitoring of world leaders phones helps the fight against terrorism and admonished the prime minister, David Cameron, in the strongest terms for his thinly veiled threat against the Guardian the same week.

"Going back to The Guardian, during Monday’s debate on the Prime Minister’s statement on the European Council, he said:

“I do not want to have to use injunctions, D notices or other, tougher measures; it is much better to appeal to newspapers’ sense of social responsibility. However, if they do not demonstrate some social responsibility, it will be very difficult for the Government to stand back and not to act.”—[Official Report, 28 October 2013; Vol. 569, c. 667.]

That is the most blatant threat to the press in recent times. It says in effect, “Do as I say or the Government will take the necessary measures.” That is all the more unfortunate while we are debating a royal charter that is being described as no threat to the press"

He finished with an emotional table thumping appeal for the Guardian to stand its ground in publishing material in the national interest and for parliament to support them in that endeavour.

Julian Smith MP (pro mass surveillance) who has demanded the Guardian be formally investigated for breaching official secrets and compromising national security then rose to his feet. He opened with his belief that "in Britain we have one of the best oversight regimes in the world."Strange that one of GCHQ's senior legal advisers has told the NSA exactly the opposite. He emphasised how much he likes the Guardian (in spite of labelling them "guilty... of treasonous behaviour" and demanding their prosecution) but the paper had admitted to sending detailed data about GCHQ internationally.

He couldn't resist a swipe at Tor -  a free open network that helps you defend against surveillance - which he labelled "the black internet—where child pornography, drug trafficking and arms trading take place". I know he only used 3 but I'm really tired of the 4 horsemen of the infocalypse ruse. Is it ever going to go away?

Next  - David Miranda's data, seized during his schedule 7 of the Terrorism Act detention at Heathrow, was, Mr Smith claimed, on a games console and "hackers" claim they have access to it. I'm afraid my fear mongering nonsense alarm was hitting overdrive at this point.

He concluded by urging the Guardian editor to be a good little boy, admit his appalling wrongdoing, throw himself on the mercy of the government and hand his data dumps back to the grown ups.

George Howarth, a Labour MP and member of the Intelligence & Security Committee (ISC), then opened with high praise for Mr Smith's "measured, thoughtful speech." No kidding. That's a direct quote and no prizes, therefore, for guessing Mr Howarth is in the pro mass surveillance lobby. He was involved in the ISC review and there was no evidence any laws had been broken - he seemed to be confirming that the mass surveillance was being done within the letter of the Regulation of Investigatory Powers Act (RIPA) and the Intelligence Services Act. He also denied the UK intelligence services had been circumventing the law by "by using the NSA’s PRISM programme".

Tom Watson intervened to ask if the ISC knew anything about the NSA's PRISM programme before the Guardian wrote about it and Mr Howarth, to the background laughter of the anti mass surveillance lobby, admitted they did not.

Mr Howarth went on then to say the ISC concluded with a "high degree of confidence" that there was no law breaking going on; and that "there might a case for trying to persuade the interception commissioner to become slightly more outward facing". At this point he was unceremoniously cut off by Chair Riordan declaring his time up and reducing time limit on further speeches to eight minutes.

Next up was Conservative MP Ben Wallace (pro mass surveillance and who I mis-identified in some tweets as Dominic Raab - apologies to both for that). Mr Wallace said the UK does intelligence and security better than anyone else. He was the first to run with the major of theme of 'how can all you silly beggars be surprised that spies actually engage in spying?' Mr Wallace has had the benefit of being an insider, having "worked in intelligence in Northern Ireland before half the legislation, which the hon. Member for Cambridge [Dr Huppert] seems to have missed, came into play." He did make the particularly salient point that no one was trying to regulate excess surveillance on the part of the private sector

"I have heard no criticism of the fact that we do not regulate the private sector. No one has expressed fear about that or demanded that we do so. The big capitalist companies in America—the Googles and the Facebooks—harvest our data without a by-your-leave, sell it on and on through intermediaries and make billions of pounds. However, I have not yet heard anyone mention that they all keep their servers offshore to avoid tax. That is the area that needs regulating to protect people."

Mr Wallace is proud the security services are regulated and would rather have the state than the international private sector controlling his personal data. RIPA is much criticised and it is not perfect but prior to its introduction he, as an intelligence officer, didn't have to "keep a log or register with anybody the things that I wanted to do." His former colleagues still hate RIPA but that's a good sign because it's an indicator they are accountable.

Sadly he then blots his copybook by insinuating the Guardian are tainted by associations with the KGB.

Mr Winnick interrupted noting the unconscionable abuse and torture of Binyam Mohamed and Mr Wallace agreed there "have been failures". He rounded off by implying Edward Snowden was clearly a traitor for choosing to travel to Hong Kong and Russia rather than Switzerland; And since he risked his life in Northern Ireland and opposed ID cards, 28 or 90-day detentions without charge and detention without trials that implied his views should carry some weight.

John McDonnell (anti) then got his chance, declared that the Guardian had been heroic and it was ludicrous that anyone should accuse them of treason.

He was followed by Martin Horwood (pro mass surveillance in spite of being a Lib Dem MP), popularly known as the MP for GCHQ since he represents Cheltenham and both his parents worked in the security services (Bletchley Park and GCHQ). He pointed out that staff at GCHQ find it difficult to forgive accusations of bad faith and illegality. Understandable perhaps. On mass surveillance:

if it was really taking place, it would—apart from being wildly impractical—be straightforwardly illegal. In his statement to the House, the Foreign Secretary made it clear that he still regarded the situation in this way:

“To intercept the content of any individual’s communications in the UK requires a warrant signed personally by me, the Home Secretary, or by another Secretary of State…Warrants are legally required to be necessary, proportionate and carefully targeted, and we judge them on that basis.”

Actually it is only necessary under RIPA that the minister believes a warrant to be necessary and proportionate. Far be it from me to cast aspersions but politicians, as a class, do seem to have a well honed talent for believing whichever story happens to support the agenda du jour. In fairness, this is an element of human nature and many of us, not just our much maligned politicians, are guilty on that score. I certainly can't claim careful and consistent cultivation of critical thinking/objectivity in all areas of life.

Mr Horwood was amongst the constituency of MPs who have absolute faith in the notion that there is no surveillance going if the information is merely collected and processed by computers but not actually physically read by a human being. That constuency is fundamentally wrong in that belief and have been for nearly 250 years, since the case of Entick v Carrington (1765) 19 Howell’s State Trials 1029, 2 Wils 275, 95 ER 807, Court of Common Pleas.

When Mr Horwood insisted on implying that there was little question but that Edward Snowden was a traitor, David Winnick, who was getting well warmed up at this pass, intervened to draw parallels with Daniel Ellsberg and the Pentagon papers which exposed US government lies about the Vietnam war. Ellsberg was called a traitor by the Nixon administration but "is now considered to be a hero who did a great service for his country."

Mr Horwood brushed him off suggesting UK checks and balances are so good, any lying or abuse on the part of the government or the security services would be reigned in by the Investigatory Powers Tribunal. I can't help but refer the honourable gentleman, as just one of many critical exhibits, to the JUSTICE all-party law reform and human rights organisation report of 2011, Freedom from Suspicion. They concluded (see the press release at the time for the short version):

• Since RIPA came into force in 2000, there have been 20,000 interception warrants (e.g.secretly listening to phone calls and reading emails), more than 30,000 authorisations for directed surveillance (e.g. following someone in public), and more than 2.7 million requests for communications data (e.g. access to phone bills). The true extent of surveillance activity since 2000 is unknown because full numbers have never been published;
• Of the nearly 3 million surveillance decisions taken by public bodies under RIPA since 2000, fewer than 5,000 (or 0.5%) were approved by a judge;
• The highly secretive Investigatory Powers Tribunal, the main complaints body under RIPA, has only dealt with 1,100 complaints since RIPA began. In the last decade, it has only upheld ten complaints;
• RIPA is poorly-drafted and lacks sufficient safeguards against abuse. This has contributed to the failure of the Metropolitan police to properly investigate phone-hacking, the illegal recording of privileged conversations between lawyers and clients, the spread of CCTV cameras, and the use of snooping powers by local authorities.

So his suggestion that the Investigatory Powers Tribunal's oversight regime is robust is, at least, questionable.

Michael Meacher then got his turn criticising RIPA which he considers so broadly drafted it enables governent to do whatever they like. He is also largely skeptical of the 'trust us' approach of government on surveillance matters since they have repeatedly been shown to have breached that trust. Malcolm Rifkind, chairman of the ISC (pro mass surveillance and a signed up member of 'it's not surveillance if it's only seen by computers' club) jumped up, apoplectic at Mr Meacher's claims that parliament has no say on who sat on the ISC. He neglected to say that parliament only got to say yes or no to the Prime Minister's picks for the committee. Mr Meacher with Dr Huppert's help then suggested the members of the ISC should be selected by parliament not the Prime Minister.

The Prime Minister also gets a veto on ISC reports, "can modify the report in any way he or she chooses and then publish it without any indication of the changes, or publish it in redacted form, or not publish it at all. That is not serious scrutiny."

Mr Rifkind (pro) got his official turn when Mr Meacher sat down. He couldn't help himself. He had to start by noting Edward Snowden now has a job working for a website in Russia but we were not allowed to know what the job was for security reasons. Unspoken - He has a job. In Russia. With Computers. Therefore he's a Russian spy. QED.

Mr Rifkind was adamant that the ISC do report to parliament under the "new legislation" (by which I assumed he meant the Justice & Security Act 2013) and the ISC is now newly constituted. Under these new regulations the Prime Minister won't get to select the chair. S/he will be elected by ISC members. The new rules also require intelligence services to supply "all information regarding nationally significant operations" to ISC. That's "a cultural revolution". Critics that claimed the ISC didn't know about the Tempora (GCHQ undersea fibre optic cables interception) programme did "not have the faintest idea whether the Committee was aware of programmes of any kind."

It is at this point that the honorable chairman of the ISC then demonstrated his serious misunderstanding of technology and its use. He declared that computers are clever and can sort data so 99.99% of it is never looked at. Therefore we are not subject to mass surveillance. To be fair to Mr Rifkind I will quote him in full on this:

"mass surveillance”. If that means anything, it is an accusation: the implication is that all our e-mails are or will be examined by GCHQ—as it chooses and by its own methods—as though something like that was now available. They seem totally to misunderstand or not to refer to the reality of what happens with modern technology, so in the brief time available, I will share with them what they ought to know. It is not secret, but is in the public domain.

Modern computers, which can indeed digest vast amounts of e-mails or communications data, are programmed to run using certain selectors, such as an e-mail address that might belong to a terrorist or some other information relating to terrorism. They are programmed to go through millions and millions of communications and to discard, without their having been looked at—no human eye looks at any of the e-mails—all those to which selectors are not attached.

Of the totality processed by computers, perhaps 0.01% will have selectors that the computer has been programmed to look for. The communications of the other 99.99%— covering virtually every citizen of this country, bar a very small number—are never even looked at by the computer, other than in relation to a selector, such as an e-mail address. Even for the tiny minority identified by the computers as potentially relevant to terrorism, if GCHQ, MI5 or MI6 want to read the content of any of the e-mails, they have to go to the Secretary of State for permission. Under the law, only if they are given permission can the content be read.

To say that we are living in a mass surveillance society is to make a wonderful allegation that sounds vaguely sinister, but the reality is that the e-mails of pretty well everyone in the Chamber are not being intercepted or read."

Ok some comments and questions for Mr Rifkind -

•  "Modern computers... are programmed to run using certain selectors" - who programs the computers and what are the specific 'selectors'/filters? Who decides what the selectors should be? Who decides who decides what the selectors should be? The chair of the ISC doesn't understand computers, so how can he effectively and his committee scrutinise the technical aspects of this work? How do you measure the efficacy of these filters given it is widely known in the tech community how ineffective electronic filters can be? How, when someone is tagged as suspicious via these secret algorithms, does the information on that individual then get further processed? What happens when someone is wrongly tagged and how do they retrieve their innocence and clean bill of electronic health? Are you aware of the nature of false negative results and false positive results?
• do you really believe there is no interception of communications if the interception is only done by computers and not seen by a human being?
• I'm going to do some very rough maths here in an attempt to explain the problem with your point that only 0.01% of communications data is looked at. 0.01% of 60 million people in the UK implicates 6000. Now the pattern flagging will be nowhere near as simple as that but just run with it as a crude estimate. We know from the deputy director of the NSA testifying before the House Judiciary Committee that you don't need to be a terrorist or have contact (deliberate or inadvertent) with a terrorist to be flagged as suspicious. The NSA (and presumably GCHQ?) is allowed to travel “three hops” from its targets – who could be people connected to people connected to people connected to you. 0.01% of the UK population or 6000 people are 2 degrees of separation from about 160,197,360 and 3 degrees of separation from over 26 billion others (about three and a half times the population of the world). Even limiting suspicion to two hops, your 0.01% of data on UK residents, Mr Rifkind, implicates more than 2.6 times the entire UK population, the equivalent of the more than 160,000,000 people in India are considered untouchable and dehumanized by the caste system. I'm not trying to equate the mass surveillance of affluent UK computer users with the plight of the poorest people in the world but just trying to give some idea of the numbers we are talking about here. So the question for Mr Rifkind is that, given that we are all suspects, who decides which suspects the intelligence services' limited resources should be deployed to further investigate and pursue, once the computer algorithms have worked their magic? 

Mr Rifkind, you are absolutely right that the intelligence services have more important things to be doing than looking at data not "directly relevant to a terrorist threat or serious crime." However these gigantic data haystacks will put everyone 3 degrees of separation from multiple terrorist threats or serious crimes. Intelligence services and public officials with access to this data will have the capacity to deeply mine anyone's digital life once an algorithmic flag of suspicion is raised, even if they don't have the capacity to do so with everyone. That should give you pause for thought as to whether the "revolution in oversight" you have such faith in will be up to the task of controlling the mass surveillance monster that has been unleashed.

Could I also remind you that as long ago as 1765 Lord Justice Camden declared personal communications to be one’s “dearest property” and mass data collection fishing expeditions to be at odds with the rule of law.

Not only that but better intelligence, crime detection and prevention will be done through intelligent, targeted, proportionate, meta data collection & analysis; and intelligence led, targeted substantial content acquisition. The blanket collection and retention of data you currently seem to support will just allow the real criminals to lose themselves in the electronic noise whilst the security services are run ragged chasing innumerable false leads.

Part 3 of my thoughts on the UK parliament surveillance debate is now here.

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 TheyWorkForYou.com 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

Or

• 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.

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.  

Particularly astute is his observation in the light of the Edward Snowden leaks that the intelligence and security services may be threatening the separation of powers by operating in:

"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.’"

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.

Jesselyn Radack reads Snowden statement at Stop Watching Us rally

Jesselyn Radack, the Government Accountability Project's National Security & Human Rights Director, read the following statement from Edward Snowden at the Stop Watching Us rally today:

In the last four months, we’ve learned a lot about our government. We’ve learned that the US Intelligence Community secretly built a system of pervasive surveillance.

Today, no telephone in America makes a call without leaving a record with the NSA. Today, no Internet transaction enters or leaves America without passing through the NSA’s hands. Our representatives in Congress tell us this is not surveillance. They’re wrong.

We’ve also learned this isn’t about red or blue party lines. Neither is it about terrorism.

It is about power, control, and trust in government; about whether you have a voice in our democracy or decisions are made for you rather than with you. We’re here to remind our government officials that they are public servants, not private investigators.

This is about the unconstitutional, unethical, and immoral actions of the modern-day surveillance state and how we all must work together to remind government to stop them. It’s about our right to know, to associate freely, and to live in an open society.

We are witnessing an American moment in which ordinary people from high schools to high office stand up to oppose a dangerous trend in government. We are told that what is unconstitutional is not illegal, but we will not be fooled.

We have not forgotten that the Fourth Amendment in our Bill of Rights prohibits government not only from searching our personal effects without a warrant but from seizing them in the first place. Holding to this principle, we declare that mass surveillance has no place in this country.

It is time for reform. Elections are coming and we’re watching you.

Letter to MP re parliamentary debate on surveillance

Following a prompt by the Open Rights Group I have written to my MP asking she intervene positively on the side of privacy or at least follow her conscience rather than party orders in the debate on mass surveillance in parliament next Thursday. Copy of my note below.

Dear Ms Blackwood,

As you know, MPs Tom Watson, Julian Huppert and Dominic Raab have secured a 'Westminster Hall' debate in Parliament next Thursday, on 'oversight of intelligence and security services.'

Intelligence agencies have significant powers to collect and analyse private information. It is Parliament's responsibility to ensure these are necessary, proportionate and that they are not abused.

We now know from Edward Snowden's leaks that GCHQ has developed a range of mass surveillance programmes, for example the tapping of undersea fibre-optic cables under the codename 'Tempora'. From the information published so far, it seems clear that surveillance law is unfit for the digital age and that significant reforms are needed.

Debates about the limits of surveillance and the oversight of intelligence agencies are being held in America and across Europe including potentially historic hearings on the matter in the EU parliament LIBE civil liberties committee. Whether the latter hearings come to be seen as historic will largely, of course, depend on the change they can effect.

MPs in the UK, however, have seemed reluctant to take the initiative and discuss mass surveillance by UK intelligence services. And so far the Government have only seemed worried about whether newspapers should have told us anything about the surveillance.

It is high time a substantial debate took place in the UK too. The debate next Thursday will be the first substantial debate in Parliament about the mass surveillance revealed by Edward Snowden. It is an opportunity to begin the process of updating our surveillance laws so they better respect our privacy and are more fit for purpose in facilitating targeted electronic surveillance with the appropriate checks, balances and oversights to inhibit the abuse of such laws.

I'm writing to ask you to speak up about this issue in the debate. There is a long and a short articulation of why this issue is one of the most fundamental questions of the information age. I appreciate you are busy so I'll use the short version. Simply speaking the evolving infrastructure of our surveillance state represents a clear and present danger to our democracy. If that sounds like hyperbole then I would just ask you to take some time to read two essays on the subject by hugely respected commentators - Bruce Schneier's Power in the Age of the Feudal Internet available at http://en.collaboratory.de/w/Power_in_the_Age_of_the_Feudal_Internet and Evgeny Morozov's The Real Privacy Problem at http://www.technologyreview.com/featuredstory/520426/the-real-privacyproblem/

I would ask that you consider the issues carefully and draw your own conclusions rather than follow the party line. The matter is far too serious to be in the business of just following orders.

If you would like some further details don't hesitate to get in touch. I'd leave you with one final thought. Nearly 250 years ago, Lord Chief Justice Camden decided that government agents are not allowed to break your door down and ransack your house and papers in an effort to find some evidence to incriminate you (the case of Entick v Carrington (1765) 19 Howell’s State Trials 1029, 2 Wils 275, 95 ER 807, Court of Common Pleas).

The good judge also declared personal papers to be one’s “dearest property”. I suspect he might view personal data likewise in the internet age. I understand Lord Camden's reasoning in Entick became the inspiration behind the 4th Amendment to the US Constitution which offers protection from unreasonable searches and seizures. For a quarter of a millennium, fishing expeditions of the type that the GCHQ and NSA are engaged in have been considered to fundamentally undermine the rule of law. It's time Parliament brought these modern practices into line with that rule of law.

Thanks for your time and consideration.

Regards,

Ray Corrigan

Tapping Merkel's phone and other stories

It's been a bumper week for Snowden revelations and EU reactions to them.

Monday
The French government expressed their disapproval via Prime minister Jean-Marc Ayrault and President Hollande of the industrial scale tapping of French telephones by the US.

Former editor of The Times and the Sunday Times, Harold Evans, felt compelled to defend the Guardian in the face of government and other news outlets accusations that the paper was undermining national security.

"No editor in his right mind wants to give aid and comfort to murderous enemies, but every editor is duty-bound to scrutinise the use of power – responsibly but fearlessly"

The EU Parliament LIBE Committee on Civil Liberties, Justice and Home Affairs voted through the complex 'General Data Protection Regulation' (Rapporteur: Jan Philipp Albrecht) and the 'Protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (Directive)' (Rapporteur (and former Greek foreign minister): Dimitrios Droutsas). Those MEPs sure know how to coin a catchy title. The associated press release painted a rosy picture of how the new regulations are going to put people

"in control of their personal data while at the same time making it easier for companies to move across Europe...

Responding to mass surveillance cases, MEPs inserted stronger safeguards for data transfers to non-EU countries. They also inserted an explicit consent requirement, a right to erasure, and bigger fines for firms that break the rules."

In the US the vote was seen as a stick to beat the US with in the wake of the Snowden leaks on the NSA.surveillance.

Unfortunately, in spite of the best intentions of MEPs, no one can possibly know the effect of the regulations even if they were to see the light of regulatory day in the form the LIBE committee approved them.

Firstly they are hugely complicated.

Secondly they were subject to 3999 amendments, tabled in various EU committees, the highest number with respect to a single legislative file ever in the parliament's history.

Thirdly because Article 6 of the proposed data protection regulations drives a coach and horses through all of the protections:

"Article 6

Lawfulness of processing

1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:

[...]

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f) processing is necessary for the purposes of the legitimate interests pursued by the a controller or in case of disclosure, by the third party to whom the data is disclosed..."

Seriously? All those words, clauses, pages, negotiations and protections and buried in the midst of it there is a gigantic get-out-of-data-protection-free provision like this. The government and associated public services can process your data "in the exercise of official authority"; and commerce (including 3rd parties) can do so for the purpose of their own "legitimate interests"? With a loophole that enormous it's hard to believe the UK government are still fighting tooth and nail against the package.

Evgeny Morozov did a lovely job of outlining the clear and present danger to democracy posed by the voracious appetite of government and commerce for personal data when combined with privacy blind unrestrained information consumerism.

The Irish High Court granted Maximilian Schrems leave to pursue a judicial review case against the Irish Data Protection Commissioner. Schrems alleged that that esteemed body's refusal to investigate his complaint in June 2013 in relation to Facebook's actions in connection with the NSA PRISM program was unlawful.

Tuesday
Reporter Glenn Greenwald labelled Julian Smith, the MP who is demanding the Guardian gets prosecuted for endangering national security, an authoritarian functionary.

Mr Smith and security minister James Brokenshire shamefully used the platform of a parliamentary committee to abuse Guardian. All attempts at debate in the committee were curtailed by the chairman.

Privacy International wrote to NSA chief, Keith Alexander regarding their unauthorised access to the international financial messaging system, SWIFT.

A powerful cast of US dignitaries noted their objections to mass surveillance via a very well produced EFF video.

Wednesday
The European Parliament voted to suspend the Terrorist Finance Tracking Program (TFTP) agreement with the US - the transfer of the SWIFT finance data of European citizens to the US.

Dutch MEP Sophie in t Veld was pleased

YESSSS!!! EP votes to suspend Swift agreement (and my tweet on this victory gets stuck....NSA? ;) ;)
— Sophie in 't Veld (@SophieintVeld) October 23, 2013

The Commission in the form of Commissioner Malmström rapidly moved to calm US and UK jitters on the matter by issuing a statement saying they would "take note" of the vote and that they "have no indications that the TFTP Agreement has been violated" by the NSA. The Commission have asked for assurances that the agreement has not been violated and

"In the meantime, the provisions of the TFTP Agreement that clearly regulate the transfer of personal data, and that provide effective safeguards to protect the fundamental rights of Europeans, will remain in place."

MEPs also voted for enhanced whistleblower protections but Commissioner Malmström scuppered that notion too:

"For the time being, the commission does not however intend to propose new legislation on the definition of corruption or approximations of statutes or limitations of corruption offences or protection for whistleblowers," 

She's of the opinion that there are adequate international standards in place which will be why Edward Snowden is holed up in Russia of course.

Peter Sommer produced a succinct blueprint of how to engage in better oversight of security and intelligences agencies, specifically GCHQ.

Keith Alexander, head of the NSA, continued to defend his right to defend America in cyberspace.

Thursday
German Chancellor Merkel was reported as being rather upset that the NSA had been bugging her phone since at least 2006. Even the Taoiseach thought it might be a good idea to speak up against such misbehaviour.

So with France and Germany now less than enamoured with US digital shenanigans, the best laid plans of officials for the EU leaders' meeting got slightly sidetracked.

Friday
It wasn't just you Ms Merkel - the NSA monitored the calls of 35 world leaders. So Ms Merkel and Mr Hollande are agreed then that they should have a chat with the US government and that they might well be, contrary to popular belief, undermining the fight against terrorism.

Even David Cameron can't find a way out of signing a relatively innocuous statement from the EU leaders complaining about US surveillance. He hasn't changed his mobile phone though, so I assume he's got nothing to hide...

Some consolation for Mr Cameron was that he may have managed, with Chancellor Merkel's support and the disapproval of certain members of the Commission, to scupper the data protection package until 2015, i.e. beyond the next EU parliament elections, the deadline being pushed by the LIBE committee to get the provisions passed.

The EU Commission proposed a comprehensive reform of data protection rules to increase users' control of their data and to cut costs for businesses. They kinda agree with the LIBE committee but not really.

A study done for the EU parliament LIBE civil liberties committee on National Programmes for Mass Surveillance of Personal Data in Member States and their Compatibility with EU Law looks like a fascinating read.

"In the wake of the disclosures surrounding PRISM and other US surveillance
programmes, this study makes an assessment of the large-scale surveillance
practices by a selection of EU member states: the UK, Sweden, France,
Germany and the Netherlands. Given the large-scale nature of surveillance
practices at stake, which represent a reconfiguration of traditional intelligence
gathering, the study contends that an analysis of European surveillance
programmes cannot be reduced to a question of balance between data
protection versus national security, but has to be framed in terms of collective
freedoms and democracy. It finds that four of the five EU member states
selected for in-depth examination are engaging in some form of large-scale
interception and surveillance of communication data, and identifies parallels and
discrepancies between these programmes and the NSA-run operations. The
study argues that these surveillance programmes do not stand outside the
realm of EU intervention but can be engaged from an EU law perspective via (i)
an understanding of national security in a democratic rule of law framework
where fundamental human rights standards and judicial oversight constitute key
standards; (ii) the risks presented to the internal security of the Union as a
whole as well as the privacy of EU citizens as data owners, and (iii) the potential
spillover into the activities and responsibilities of EU agencies. The study then
presents a set of policy recommendations to the European Parliament."

Finally, for now, has the Guardian just got its own back on Julian Smith MP by accusing him of endangering national security? Apparently Mr Smith posted a picture on his official website of him posing with staff from the high-security US base in the UK, Menwith Hill. Mess with the press at your peril.

Stop watching us: the US video; now where's the UK version?

The EFF has produced a nice video with an impressive cast of characters demanding a halt to mass suspicionless surveillance.



Now how about a UK version with an equally heavyweight cast? There is at least a debate up and running in the US.

MP & Minister "debate" aka accuse Guardian of breach of national security

The terms and conditions for embedding video of exchanges in the UK Parliament state that sites that "Lower the dignity of either House or that of individual members" are excluded from posting the recordings. You can judge for yourself whether this site or the particular MP and minister are the ones lowering the dignity of the House or its members in this "debate" on whether Guardian damaged national security.

Just for the record and so no one is in any doubt about my perspective - I believe it was an utter disgrace:


The Guardian bashing starts at 16:30:11. There follows 30 minutes of prepared speeches by Julian Smith MP and security minister James Brokenshire with all efforts to "debate" blocked by the session chairman. This is despite several MPs desperately trying to intervene. David Winnick makes a number of heckling interventions accusing Mr Smith in particular of McCarthyism and of making a "disgraceful speech". Mr Smith responds that Mr Winnick is "a rude man". As soon as Mr Brokenshire finishes his speech the chairman closes the session.

Mr Brokenshire allowed David Davis to make a single intervention to ask if it was so clear that the Guardian has broken the law and endangered national security why has there been no prosecutions? The minister dodged the question saying it was a matter for the police and CPS and continued with his pre-prepared speech.

That a parliamentary debate about one of the most fundamental issues in an information age should be orchestrated in such a manner is contemptible and inexcusable. That most people still won't care is, as John Naughton put it in the Observer this week, is really scary.

Update: the Guardian's own reserved report on Messrs Smith & Brokenshire's performance is now available.
I also recommend Evgeny Morozov's MIT Technology Review essay on how the erosion and neglect of privacy is putting democracy at risk. Extract:

"we can now be pinged whenever we are about to do something stupid, unhealthy, or unsound. We wouldn’t necessarily need to know why the action would be wrong: the system’s algorithms do the moral calculus on their own. Citizens take on the role of information machines that feed the techno-bureaucratic complex with our data. And why wouldn’t we, if we are promised slimmer waistlines, cleaner air, or longer (and safer) lives in return?
This logic of preëmption is not different from that of the NSA in its fight against terror: let’s prevent problems rather than deal with their consequences. Even if we tie the hands of the NSA—by some combination of better oversight, stricter rules on data access, or stronger and friendlier encryption technologies—the data hunger of other state institutions would remain. They will justify it. On issues like obesity or climate change—where the policy makers are quick to add that we are facing a ticking-bomb scenario—they will say a little deficit of democracy can go a long way."

ORG interviews, the ISC inquiry & Benkler re the Snowden leaks

The Open Rights Group has done a series of interviews about the Snowden leaks with such luminaries as former GCHQ chief David Omand, human rights and freedom of information campaigners Peter Tatchell and Heather Brookes and the former Conservative foreign and defence secretary, Malcolm Rifkind.



Particularly telling is Mr Omand's point that we've got to grow up and have a public debate about the powers of the intelligence services to engage in operational surveillance, what that means in practice and what the boundaries, checks and balances of such powers should be.

Mr Rifkind, comes across as believing in the magic powers of computers, given enough personal data about everyone, to point out the bad guys. It doesn't matter, you see, that the data of the rest of us is in there too; because as long as it's only seen by the computer which grades us as innocents then there is no harm done.

His lack of understanding might not be a problem except for the fact that he is chairman of the parliamentary  Intelligence and Security Committee (ISC) charged with overseeing the work of the intelligence services. The ISC is also the committee that has announced it will look into the Snowden leaks. Unfortunately Mr Rifkind is also framing this inquiry as examining

"the appropriate balance between privacy and security in an internet age...

There is a balance to be found between our individual right to privacy and our collective right to security.

Wrong, wrong, wrong.

It is not about "balancing" privacy and security. They are not opposite sides of the same coin. More privacy does not mean less security any more than more security means less privacy. Door locks and strong fences provide privacy and security. Security gets pitched against privacy in the context of mass surveillance and identity; and the anti-privacy security measures like mass surveillance and identity cards not only don't work but can undermine security. (All the 9/11 attackers had their photo identities checked before boarding their planes.)

If Mr Rifkind does not understand that he should not be chairing such an influential parliamentary committee in this area. If he does understand it he's engaging in manipulative politics, framing the "inquiry" to get pre-ordained "answers".

Even if we did have Mr Rifkind's magic terrorist catching machine and it was 99.9% accurate (no existing surveillance system comes close to this) it would be still be useless.

Why?

Because even if the machine was watching only the 60 million people in the UK, it would wrongly accuse roughly 600,000 innocent people of being terrorists every time it was asked for a suspect. That’s a lot of false leads for the police and security services to follow whilst the bad buys get lost in the noise.

So even if there were 1000 terrorists (unlikely), our 99.9% accurate terrorist catching machine would be wrong more than 99.8% of the time (599,000/600,000).

Yet the machine still might miss the terrorist! Because not only will it wrongly identify innocent people as bad guys, it will also identify real bad guys as innocents.

Tuning the machine to accuse fewer innocents will make it more likely that it will miss the bad guys.
Finding a terrorist is a needle in a haystack problem. You don’t find the needle by throwing more electronic data hay on the stack. It requires targeted, intelligence led surveillance and investigation - targeted intelligence led data preservation not blanket data collection and mass surveillance.

So not only does the Rifkind-approved mass surveillance apparatus not work, it blows a hole in the constitutional, common law, statutory and international protections for privacy.

Yochai Benkler spelt it out nicely in yesterday's Guardian:

"Pervasive surveillance proponents make two core arguments.

First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal...

The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called "probable cause" and a warrant "particularly describing the place to be searched, and the persons or things to be seized". The problem with this second argument is that it combines two fundamentally incompatible elements.

Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility...

Technology has enabled government to have investigative and situational awareness on a scale and scope that were science fiction when the Stasi shut its doors. The "state of emergency" mindset necessary to justify the program in the first place drives those charged with assuring the safety of Americans to always use this technology to its full potential; it also gives them an independent source of legitimacy for their actions – the fierce urgency of necessity.
Their mission clashes with the fundamental premise of privacy as a civil right: that state power is best contained by making the overwhelming majority of what goes on in society invisible to the state. As Justice Alito put it in the supreme court's decision to strike down GPS tracking:

[Historically] the greatest protections of privacy were neither constitutional nor statutory, but practical.

Once the state knows about behavior, it is hard to rely on rules alone to bear the full burden of preventing overreach by those who wield its awesome power...

Rules alone cannot hold back the millions of potential abuses of an omniscient state.

As long as government is allowed to collect all internet data, the perceived exigency will drive honest civil servants to reach more broadly and deeply into our networked lives. Bringing an end to mass government surveillance needs to be a central pillar of returning to the principles we have put in jeopardy in the early 21st century."

Mr Tatchell and Ms Brookes, as you would expect, are articulate on the need to protect human rights, expose wrong doing on the part of government, protect whistleblowers and wax skeptical about the constant 'trust us it's a matter of national security' refrain on the part of governments.