Don’t spy on us: The day we fight back
In almost every week since last summer, a new Snowden document has been released which details the growing surveillance powers and practices of intelligence agencies, each one astonishing in its own right. The documents have exposed the illegal activities and intrusive capabilities of the UK’s intelligence agency, GCHQ, which has secretly sought to exploit and control every aspect of our global communications systems.
For far too long, mass and intrusive government surveillance programs have operated in the shadows, outside of the rule of law, and without democratic accountability. Now our governments are even defending this state of affairs. This should not be, and certainly cannot continue.
We must fight back.
Today, Privacy International, Article 19, Big Brother Watch, English PEN, Liberty, and Open Rights Group are launching the Don’t Spy On Us campaign, demanding an end to mass and suspicionless surveillance, and a return to a system that is accountable and transparent. We are calling for an independent inquiry into UK surveillance, and a new law that will fundamentally reform the way GCHQ carries out surveillance.
Urgent need for reform
The debate in the UK around surveillance has been disappointingly quiet since the Snowden revelations began. Citizens have shown outrage, but there has been little collective action. Politicians have reacted in surprise, but no one is taking intelligence agencies and government ministers to task. And officials, including members of the Intelligence and Security Committee, the UK committee of Members of Parliament who have some oversight over intelligence agencies, have repeatedly refused to comment, except when they speak to defend the radical actions of intelligence agencies. This silence has been deafening and has stifled any meaningful debate that is desperately needed, given what we now know.
The lack of a vigorous discourse in the UK is particularly concerning given the reaction across the pond – in the United States, thousands have protested, civil society has organised many forms of collective action, more than 40 legal opinions and court rulings have been declassified, and Congressional hearings are ongoing and there are reform initiatives being debated. And the reviews in the US by President Obama’s selected panel and the Privacy and Civil Liberties Oversight Board have all identified problematic activities.
The need for reform is urgent. Global spying activities will not be stopped unless the UK government takes serious measures to ensure that the intelligence services operate within the rule of law. The British government must understand that mass surveillance, operating beyond public scrutiny, threatens the foundations of democracy. Established under secrecy and now defended publicly, the UK Government is setting radical global standards for surveillance that will be adopted by other governments worldwide. Unless we hold our democratic governments to account on mass surveillance, it will soon become the global standard. Dictators must find great solace and support every time a UK Minister or Parliamentarian defends illegal surveillance.
What is needed
The current laws haven't stopped the intelligence services expanding their reach into our private lives. Don't Spy On Us is calling for an inquiry to investigate the extent to which the law has failed and suggest new legislation that will make the spooks accountable to our elected representatives, and put an end to mass surveillance, in accordance with the following six principles:
1. NO SURVEILLANCE WITHOUT SUSPICION
Mass surveillance must end. Surveillance is only legitimate when it is targeted, authorised by a warrant, and is necessary and proportionate.
We need a major overhaul of our surveillance laws. Laws need to be updated to take into account new technological realities and capabilities. The Government, with limited safeguards and under the veil of secrecy, has unprecedented capabilities to peer into our lives. These incredible capabilities must be strictly regulated. When the state’s powers are incompatible with our democratic values and human rights obligations, their use must cease.
2. TRANSPARENT LAWS, NOT SECRET LAWS
The Government is using secret agreements and abusing archaic laws. We need a clear legal framework governing surveillance to protect our rights.
The British public does not have access to the legal regime that governs these surveillance powers. We cannot hold our governments accountable when their actions are obfuscated through secret deals and covert legal frameworks. With the exception of a handful of documents, none of the laws and agreements that govern the way in which surveillance is conducted and intelligence is shared between Five Eyes countries (Australia, Canada, New Zealand, UK and US) is publicly available. By remaining in the shadows, our intelligence agencies – and the government – have removed our ability to challenge their actions and their impact upon our human rights. All intelligence activities must be properly legislated and subject to parliamentary and public scrutiny.
3. JUDICIAL NOT POLITICAL AUTHORISATION
The UK stands alone amongst democratic nations: Ministers, rather than judges, authorise communications surveillance. Ministers should not have the power to authorise surveillance. All surveillance should be sanctioned by an independent judge on a case-by-case basis.
This regime of political authorisation has given rise to this unaccountable regime of mass surveillance. Some politician at some point authorised the intelligence agencies to monitor all these communications. Rather than be held to account or reviewed, the regime continues in perpetuity. We are a nation of citizens not suspects. Mass and indiscriminate interception on the basis of generalised ministerial warrants must cease, and all law enforcement and intelligence surveillance measures must be scrutinised, authorised and monitored by the judiciary.
4. EFFECTIVE DEMOCRATIC OVERSIGHT
Parliament has failed to hold the intelligence agencies to account. This failure is by design: the current committee of MPs who oversee the intelligence agencies is not actually a Parliamentary committee. The Intelligence and Security Committee (ISC) reports to the Prime Minister, not to Parliament. Parliamentary oversight must be independent of the executive, properly resourced to conduct investigations, and able to command public confidence through regular reporting and public sessions. There must be concrete reform of the ISC, if it is to provide meaningful parliamentary oversight of the Agencies.
5. THE RIGHT TO REDRESS
Innocent people have had their rights violated. Everyone should have the right to challenge surveillance in an open court. Rather than an open court however, individuals can only appeal to the Investigatory Powers Tribunal (IPT). This Tribunal must also be reformed. There must be provision for appealing a decision of the IPT. The presumption should be that all cases heard by the IPT will involve hearings and as much of the hearing as possible should be made public, unless the defendant demonstrates that secrecy or partial secrecy is required in the circumstances of the case. The same approach should apply in relation to the disclosure of material and publication of judgments and reasoning.
Government must not be able to embroil the private sector in the blanket surveillance of the population. Given that the private sector designs and maintains the networks, hardware and software that make up our communications systems, and acts as a crucial interlocutor between the individual citizen and state power, private sector entities should be empowered to resist Government demands for cooperation with surveillance activities and have such claims mediated by the judiciary.
6. A SECURE WEB FOR ALL
Weakening the general security and privacy of communications systems erodes protections for everyone, and undermines trust in digital services.
State surveillance should be consistent with, not contrary to, the promotion of communications security. The Government has a responsibility to ensure its citizens have access to the highest levels of communications security and not to undermine such security the name of surveillance. In order to better protect data in transit, at rest, in the cloud, and in other storage, the Government should seek to promote, not undermine, the use of strong encryption.
The need to take action
It is shocking that in this day and age that we have to ask that governments be clear about the legal regimes they are using. That we have to ask governments not to sabotage the technologies that we all rely upon. That we have to hope governments wield their incredible powers with some restraint, and when we find that they do not, that we have no legal recourse by which to challenge them.
This is not the first, nor likely the last, time a debate around government surveillance will arise in this country. In the past, we’ve seen components of all these practices debated in parliament. In each instance, all of these proposals were all curtailed and often were rejected. Controls on cryptography were rejected in the 1990s; mass collection of 'metadata' was rejected repeatedly since 2001; and hacking by government agencies was rejected in computer crime laws.
Despite this, however, surveillance proponents now point to the political and public silence to argue that the world is happy with this surveillance. They claim that the public is happy with the secret surveillance regimes that Ministers refuse to explain and comment upon, that operate under legal regimes nobody can ascertain, about capabilities that Parliament cannot comprehend.
But we know better, and today is the beginning of a long, hard fight to achieve meaningful reform in surveillance law.