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Thursday, June 11, 2015 

When maintaining the status quo feels like something to celebrate.

David Anderson QC's review of the various laws authorising and regulating the interception of data by the state is as good as we possibly could have hoped for.  Compared to the work of parliament's Intelligence and Security Committee, well, there's no comparison.  Not a single redaction for a start, very little in the way of obfuscation or outright distraction, regardless of how transparent those attempts to muddy the debate have been, and outright recognition that if it had not been for the whistleblowing of Edward Snowden, we would still know almost nothing about the way GCHQ hoovers up our data with the very minimum of oversight.  Anderson still, contradictorily, criticises Snowden, but that is to be expected.  The independent reviewer of terrorism clearly does not swallow the bluster from the security services that major damage has been done to them, despite accepting "national security" has been affected.  When national security is defined so widely, and presumably in this instance includes damage to the reputation of said security services, it could hardly be otherwise.

He does nonetheless accept the pleas of GCHQ for the bulk interception of data to be allowed to continue.  He did at least manage to persuade the powers that be to disclose the general outline of the examples previously provided to the ISC for why bulk interception, which if nothing else gives us something of an idea as to what we're giving up in terms of privacy in order to prevent.

This is not to say the examples given are beyond question (they're contained in Annex 9 of the report): most eye-catching is the claim that without bulk data, an airline worker with links to al-Qaida would not have been convicted.  As Joshua Rozenberg writes, this almost certainly refers to the case of Rajib Karim, who was in email contact with the then leader of al-Qaida in Yemen, Anwar al-Awlaki, since killed in a US drone strike.  You would of course expect someone like al-Awlaki to be under surveillance, although how precisely GCHQ identified Karim we can't know.  Nor can we know how exactly "bulk data" is being defined in this instance: yes, Karim might not have been identified if al-Awlaki also hadn't been targeted, presumably under the rules governing bulk interception rather than as a specific target, but that's rather different to how our "external communications", i.e. the use of any website not hosted in the UK are considered by the intelligence agencies to fall under bulk interception as a whole.  Two of the case studies provided do not so much as relate to subsequent law enforcement action in this country at all.  While this is evidence of the efficacy of bulk interception in cases where intelligence or what we would normally consider to be standard surveillance techniques have started off the investigation, it hardly convinces that the ordinary sifting through of the vast amounts of data being collected will ever on its own save lives, or outweigh the potential abuse of such access to personal data.


That aside, the report on the whole is so well argued that if the intelligence agencies had any sense, they would take a good hard look at Anderson's recommendations and five principles, of minimising no-go areas, limited powers, rights compliance, clarity and transparency and a unified approach and adopt them as their own.  Anderson writes of just how co-operative everyone was with him, as you would expect, and yet these are the same agencies that once free of the presence of those reviewing them go back to demanding redactions in reports, that over-the-top levels of secrecy be maintained and the delivering of self-defeating lectures that we're all so familiar with.  There is in essence absolutely nothing in the report they should disagree with, at least if they realise things can no longer go on as they were, but whether organisations which by their very nature have to be paranoid and constantly on the lookout for new ways to break things can handle such concepts remains unclear.

The problem you suspect will in fact be more with the politicians than the agencies themselves.  Ministers will be loth to give away to judges the authorising of interception warrants, not least because it's another power they'll lose.  So too will it affect their direct line into the agencies, and considering the past at times fractious relationship between the spies and politicians, that's not something necessarily to be welcomed.  Anderson also reiterates the past criticisms of the proposed Data Communications Bill, aka the snoopers' charter, essentially saying the case for it has still to be made, despite "compulsory retention of records of user interaction with the internet" being "useful", as he terms it.  Well yes, useful it would certainly be; as for being justifiable, in the same way as bulk interception is justifiable, not without safeguards far beyond what has been outlined so far.  


All things considered though, especially when we think of how with a Tory majority, a Labour party that looks certain to head back to the right and when the only party remotely interested in civil liberties as a whole has been reduced to a rump, this report in different hands could have been the sum of all fears.  Instead it looks set to merely maintain the status quo.  These days, that feels like a victory.

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