Understanding digital intelligence from a British Perspective

The Snowden revelations revealed much that was never intended to be public. But to understand them they must be seen in their context, of a dynamic interaction over the last few years between the demand for intelligence on the threats to society and the potential supply of relevant intelligence from digital sources. All intelligence communities, large and small, and including those hostile to our interests, have been facing this set of challenges and opportunities.

First let's look at the challenge of meeting insistent demands for secret intelligence. For the UK this is, for example, to counter cyber security threats and provide actionable intelligence about the identities, associations, location, movements, financing and intentions of terrorists, especially after 9/11, as well as dictators, insurgents, and cyber, narco and other criminal gangs. The threats such people represent are real and in many respects are getting worse and spreading.

These demands for intelligence have coincided with a digital revolution in the way we communicate and store information. The Internet is a transformative technology, but is only viable because our personal information can be harvested by the private sector, monetized and used for marketing. So the digital age is able to supply intelligence about people, for example by accessing digital communications, social media and digital databases of personal information. And for intelligence communities, new methods of supply call forth new demands from the police and security authorities that could not have been met before the digital age. And their insistent demands for intelligence to keep us safe call forth ever more ingenious ways of extracting intelligence from digital sources.

For the democracies (but not for others such as the Russians and Chinese), there is an essential third force in operation: applying the safeguards needed to ensure ethical behaviour in accordance with modern views of human rights, including respect for personal privacy. For the UK, the legal framework for GCHQ is given in:

The Intelligence Services Act 1994 Article 3 confers on GCHQ the functions of intelligence-gathering and information assurance with the sole purposes of national security, prevention and detection of serious crime and safeguarding the economic well-being of the UK from actions of persons overseas; Article 4 relates to obtaining and disclosing information.

The Regulation of Investigative Powers Act 2000 outlines the powers of the Secretary of State to issue a warrant to make interception legal

The Human Rights Act 1998 including incorporating a 'necessity and proportionality' test to everything GCHQ does.

Like some elementary experiment in mechanics the resultant of these forces of demand, of supply and of legal constraints and public attitudes will determine the future path of our intelligence communities. 

Into that force field blundered the idealistic Edward Snowden, the Wikileaks-supporting information campaigners Poitras and Greenwald, plus a posse of respectable journalists. Some are tempted to see Snowden as a whistleblower. But he certainly did not meet the three essential conditions for a legitimate whistleblower as far as the UK is concerned. He did not expose UK wrongdoing, he did not exhaust his remedies before going public, and he did not act proportionately by stealing and leaking so many secrets (including 58,000 British intelligence top-secret documents) to make his main case against the US National Security Agency's collection of metadata on the communications of US citizens.

Close examination has shown that there is no scandal over illegal interception, or other unlawful intelligence activity, by GCHQ. The three elements of the 'triple lock' on GCHQ's activities – the Foreign Secretary's authorisations, the oversight by the Parliamentary Intelligence and Security Committee (ISC), and the legal compliance by the independent UK Interception Commissioner and the independent Investigative Powers Tribunal – have each separately concluded everything GCHQ does is properly authorized, and legally properly justified including under Article 8 of the European Human Rights convention regarding personal privacy.

The documents from these different oversight bodies are well worth reading for the unparalleled detail they provide into how interception by the UK authorities is authorized, carried out and audited so as to be always within the law:

• The ISC Report.
• The Interception Commissioner's Annual Report for 2013.
• The Investigative Powers Tribunal Judgement.
• The Foreign Secretary's Statement.

The Home Secretary has also described her role in authorizing legal interception of UK communications, including by GCHQ. The inescapable conclusion from these documents is that GCHQ operates entirely within the law, including the 1998 Human Rights Act and therefore the European Charter of Human Rights in respect of freedom of expression and personal privacy.

What Snowden and his supporters have failed to do therefore is to distinguish bulk access by computers to the Internet, which the US and UK, France, Germany, Sweden and many other nations certainly do have and so-called 'mass surveillance'. Mass surveillance implies observers who are monitoring the population or a large part of it. As the ISC, the UK Interception Commissioner and the IPT confirm, no such mass surveillance takes place by GCHQ; it would be unlawful if it did.

We would be well advised not to have blind trust in the benevolence of any government. 'Trust but verify' should be the motto. With increasingly robust executive, Parliamentary and judicial oversight and publication of the results of their work we can and must ensure those tools will only be used in lawful ways that do not infringe beyond reasonable necessity our right to privacy for personal and family life or impose unconscionable moral hazard.   matthewaid