Nick Pickles is Director of civil liberties campaign group Big Brother Watch.
Reform of surveillance law may not be top of the agenda in Westminster, but there’s plenty of debate about how to do so in Washington. What is more, its lines are not being drawn on the partisan grounds that afflict much of the Obama administration’s agenda. Proposals to do so have brought together an extraordinary alliances of law makers and campaigners, and it look set to be a defining issue of this presidency.
Over the past week, I’ve met with campaign groups, Senators, Congressmen, some of the world’s biggest technology companies and telecommunication providers. I met with people who have worked with the US Intelligence agencies and people who’ve written some of the NSA and GCHQ stories that have lit the touch-paper of debate around the world.
Some of the main actors in the debate have taken positions that confound expectations. For example, a Clinton-appointed, supposedly liberal judge in New York ruled the NSA’s bulk surveillance legal, while a Bush-appointed conservative judge in Washington called it “Orwellian” and almost certainly unconstitutional. The Supreme Court is ultimately going to have to settle the matter.
The lobby for reform couldn’t be any more diverse – bizarre, even – from the American Civil Liberties Union and the libertarian Rand Paul to the gun lobby, the Tea party and Obama loyalists – even the technology companies who did more to put him in the White House than many others. The status quo, once the dominant centre ground, is becoming a very lonely place that few are willing to defend.
During the past week an extraordinary amount of the President’s time has been devoted to this issue. He has had meetings almost every day with privacy groups, tech companies, congressional leaders and, most importantly, his own review panel. On Friday, he will in respond to the review panel’s scathing assessment of the current legal and operational framework that governs surveillance of Americans and non-Americans alike.
Its 46 recommendations, covering everything from ending bulk data collection, strengthening the intelligence oversight court and prohibiting actions to weaken internet security, carry greater weight given how the review panel was made up.
The group included a former Bush-appointed White House counter-terrorism advisor who was in post on 9/11 and was reinforced by a former deputy director of the CIA. A cynic might have expected a whitewash. Yet it is striking is that both pro-NSA and pro-reform lobbies have welcomed its findings, a telling sign of the strength of its analysis and evidence base.
The review itself should be a wake-up call to those who say reform is not needed in Britain. Even before the proposed reforms in the US, the American system was incomparably more open and accountable than our own. Once the proposed reforms are put in place, the gap in both effectiveness and accountability is set to grow even wider.
The review panel’s finding of “serious and persistent instances of non-compliance in the intelligence communities implementation of its authorities” and that 90 per cent of the NSA’s so called ‘alert list’ did not meet the normal legal standard of “reasonable, articulable suspicion” rightly raise questions of an oversight system already far more advanced than Britain’s.
However, it is the role of this independent court, and more broadly the intelligence agencies’ interpretations of the law, that has galvanised this diverse lobby of reform. A growing body of secret law, exposed by Edward Snowden, has taken the laws passed by Congress and dramatically expanded their scope, with the review group noting that the Foreign Intelligence Surveillance Court’s interpretation of one key provision did violence to the meaning of the word ‘relevant'”
There is no disagreement that our agencies should do all they can to keep us safe. However, in a democratic society it is wholly wrong for their broad capability to be kept secret, with laws being interpreted far beyond their intention and without any challenge or debate of this widening in scope. This secret and unaccountable expansion of the law has brought together a broad base of American political and public opinion in rejecting what has been done in their name.
This has unavoidable implications for us. As court opinions, legal advice, data on the use of powers and executive orders are published in the US, the mantra that the British Government “does not comment on intelligence matters” is surely unsustainable.
Those “intelligence matters” have implications far beyond the shadowy world of the agencies. In particular, they will determine billions of pounds of investment by businesses, with the cloud-computing market estimated to be worth $207bn per year by 2016. The President’s review panel calls for a “serious and comprehensive re-examination of the balance between secrecy and transparency” and, given we are already far behind in this regard, such a concern is equally valid at home.
The Americans appreciate only too well that not acting to address the cloud of suspicion hanging over Silicon Valley will cost thousands of jobs and billions in investment. If we fail to act, Silicon Roundabout may soon start to resemble a deserted car park, as the data-dependent businesses flee to Berlin.
The exposure of such over-reach, expansive interpretation and weak oversight, and its dangerous consequences, is why you have leading Democrat members of the Senate intelligence committee working with the Republican who authored the Patriot Act. It is why you cannot face a Republican primary without backing reform, and why the President’s assurances are being treated with scepticism by his own supporters.
That’s also the reason why the oversight court will be reformed, to include an advocate who can challenge the Government’s claims and offer a differing legal view. Even the President has acknowledged that a court without adversarial opinions does not constitute meaningful judicial overview. I wonder what he would make of Britain’s system of retired judges casting a retrospective eye being cited as judicial oversight. On the basis of my meetings last week, the proposition would be seen as comical.
All of this this is before you consider that some of the programmes have been exposed as wholly ineffective. In defence of its mass metadata collection, the NSA cited 54 terrorist cases in which attacks had been prevented. After scrutiny from Congress, the NSA now accepts that just one case was uncovered – a bank transfer of $8,500 to Somalia. Similar claims made by British agencies have gone unchallenged.
The net conclusion of all this debate is that the majority of the American people and political class believe that without proper oversight and public debate the agencies lose focus, trespass unnecessarily on the public’s rights and freedoms and become materially less effective.
This debate in Britain may be in its infancy, with secrecy a well-worn habit when it comes to our security agencies, but one thing is clear. If we do not, as the US and other countries now accept is essential, bring our legal framework and oversight mechanisms in line with the expansive surveillance made possible by modern technology, our economy, our privacy and our security will all suffer.