Smoke, Mirrors, and Loopholes

Spying On One's Own

The UK government has finally come out of the closet.  It has reluctantly confirmed publicly, for the first time, that its intelligence agencies conduct warrant-less spying upon its own citizens.  But there is a casuistic justification which outdoes the subtlety of a Medieval Schoolman: the electronic data upon which the UK agencies spy has to have been collected by one of the other "Five Eyes" nations (Canada, the US, Australia, or New Zealand.)  This from The Guardian: 

British intelligence services can access raw material collected in bulk by the NSA and other foreign spy agencies without a warrant, the government has confirmed for the first time.  GCHQ’s secret “arrangements” for accessing bulk material are revealed in documents submitted to the Investigatory Powers Tribunal, the UK surveillance watchdog, in response to a joint legal challenge by Privacy International, Liberty and Amnesty International. The legal action was launched in the wake of the Edward Snowden revelations published by the Guardian and other news organisations last year.

The government’s submission discloses that the UK can obtain “unselected” – meaning unanalysed, or raw intelligence – information from overseas partners without a warrant if it was “not technically feasible” to obtain the communications under a warrant and if it is “necessary and proportionate” for the intelligence agencies to obtain that information.

This, we believe, is yet another smoking gun.   For the record, we are not opposed to espionage.  Neither are we opposed to espionage upon our own citizens.  But it is imperative that there be checks and balances, limits and controls upon such activity.  The limits and are essential to the rule of law.  Without such limits, spying agencies and governments would be, by definition, lawless--that is, above and beyond the law and answerable to no-one.  The first basic limitation and control would require the spying agencies to demonstrate reasonable cause.  The second limitation would be for the spying activity to be specifically targeted at identified individuals.  Thirdly, the stipulation that these limitations are being adhered to needs to come from an independent judicial review and the issue of judicial warrants. 

In the UK it has been acknowledged that spy agencies can access unlimited data to spy on citizens without any judicial review or warrant whatsoever, provided the data has been captured by another country.  It follows, of course, that Five Eyes partners--if permitted by their enabling legislation--will likely regularly gather data upon the citizens of other four partner countries and pass it over, thereby subverting and skirting around lawful checks and balances.