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Surveillance in the UK and the USA: commonalities and differences

In one of those fortuitous instances of synchronicity, there are two stories today that illustrate some of both the commonalities and the differences between state surveillance practices and regulation in the UK and the USA.

In the UK, The Guardian has revealed that the Surveillance Commissioner (a separate office to the Information Commissioner) has been very critical behind the scenes, as the Lords Committee was in public, of the uses to which the Regulation of Investigatory Powers Act (2000) (RIPA) has been put, not this time by local government, but by national ministries like the Department for Environment, Food and Rural Affairs (DEFRA) and agencies, including Ofcom (the broaadcast and communications regulator) and the Charities Commission. DEFRA came in for a particular telling-off over its spying on fishermen. The chief commissioner, Sir Christopher Rose found generalised lax practice, a lack of proper justification for and proportionality in the used of RIPA, and little training or accountability. In short, RIPA is being used because the powers exist not because there is any pressing justification to use surveillance in this manner – the used of surveillance has expanded because it is available.

It is very interesting that The Guardian had to discover all this through Freedom of Information Act (FOIA) requests, and that the Surveillance Commissioner had not put all of this in the public domain as a matter of course. It highlights for me, once again, the clear difference in attitude and regulatory practice between him and the open, accountable, and active Information Commissioner’s Office (ICO). It confirms my view that we would be much better off if the Surveillance Commissioner’s work was absorbed into the ICO.

In the USA, it is to lawyers that people immediately turn if some bad practice is suspected on behalf of the government. The Los Angeles Times reports that on Friday, the US government lost the case it had been bringing to try to stop an Islamic charity based in Oregon from suing them over what they claim were illegal wiretapping operations targeted at them. The case stems from the Bush administration’s attempts to bypass what were already very weak regulations governing the surveillance of American citizens which were introduced in the Foreign Intelligence Surveillance Act (1978) (FISA) and recently amended in the Protect America Act (2007). Requests are supposed to go to the Foreign Intelligence Surveillance Court (FISC) which meets in secret and does not have to publish its rulings and so far as we know, has never turned down a request – so it is somewhat mystifying except as a matter of speed and convenience that the Bush administration did bypass the court.

Now the Obama administration is (shamefully) defending the actions of his predecessor. This is not entirely surprising. Intelligence is one area of continuity between governments: it is what Peter Gill called the ‘secret state’, a core that remains constant regardless of changes of administration. Nixon and Bush were both stupid enough to get caught, but the NSA, CIA and FBI are continually looking for different ways to get around domestic regulations on surveillance. Political devices like the UKUSA agreement served this purpose for many years – whereby Canadian and British intelligence services would collect SIGINT on Americans and supply it to the NSA and vice-versa. But GCHQ and others just don’t have the capabilities to carry out the amount of monitoring that now goes on. It’s been the reality for many years now that the NSA in particular does spy on Americans. Again, they have the capabilities so those capabilities are used.

Of course, unlike in the UK, we are talking about the threat of terrorism not anglers catching one-too-many fish; that really does say something about the petty bureaucracy that characterises the UK! However RIPA was also justified originally with reference to terrorism and serious and organised crime. Anyway, the ruling in the Oregon case clearly states that state secrets privilege was not enough to justify warrantless surveillance of suspects, whatever they had allegedly done. It seems that at least is one point of hope that the USA and the UK have in common. Let’s see where these situations now lead in each country…

Surveillance to be ‘hardwired’ into British culture?

Labour simply needs to admit that it has been wrong on this and to develop some more credible plans which recognises that real security protects liberties rather than undermining them in the name of security.

Richard Thomas is no longer a lone voice in the top echelons of the British state against the growing culture of surveillance, but he remains the most persistent and hard-hitting critic, not least because of he makes the best possible use of his position as UK Information Commissioner when most government watchdogs are largely toothless.

Now in an interview in The Times newspaper, he has renewed his attack on the government’s data-sharing and surveillance proposals,arguing that we risk “hardwiring surveillance” into the British way of life. He has clearly fully absorbed the report we wrote for him back in 2006, in which we warned of the possibility of a ‘technological lock-in’ and is building on it in a serious and creative way.

Thomas is clear in the interview that government plans are ‘excessive’ and so much so that they ‘risked undermining democracy’. With Thomas now joined in his stance by eminent critics like the House of Lords Constitution Committee, former MI5 chief, Stella Rimington and most recently, former far-from-liberal Home Secretary, David Blunkett, as well as just about all media and academic opinion, it seems difficult to see how the government can continue to claim that its plans are in any way credible. Labour is now obviously isolated, unpopular and wrong on surveillance. This needs more than token gestures like the resignation of the Home Secretary, Jacqui Smith (she has other reasons why she should resign anyway), it needs some real soul-searching and a complete reconsideration of the direction in which the government is heading. Labour simply needs to admit that it has been wrong on this and to develop some more credible plans which recognise that real security protects liberties rather than undermining them in the name of security.

Battle lines being drawn in UK surveillance debate

there appears to be a gathering of forces and a drawing of battle lines amongst the ‘big beasts’ of security policy in the UK…

The UK’s Institute for Public Policy Research (IPPR), the influential think-tank that was behind the New Labour project, has released a report on intelligence and national security that argues that privacy and human rights will have to take second place in the War on Terror. The report, National Security Strategy, Implications for the UK Intelligence Community, is written by former civil service security and intelligence coordinator, David Omand, is part of the IPPR’s Commission on National Security in the 21st Century, whose rather unimpressive launch event I attended last year.

The Guardian newspaper’s story on this is trying to build this up into an ‘end of privacy’ / ‘end of civilisation as we know it’ story and Omand certainly comes down firmly on the side of security over liberty. He recognises that his arguments are contrary to ours and go “against current calls to curb the so-called surveillance society.” But he is not actually making a total ‘by any means necessary’ argument. Even the Guardian’s own report quotes his rather qualified statement that “in some respects [new intelligence methods] may have to be at the expense of some aspects of privacy rights.”

The report is simply not as strong or even as interesting as The Guardian‘s story suggests. Most of it is simply a description of how intelligence works (and not even a very comprehensive or insightful one at that). Much, as we predicted in our recent book (see My Publications), it tries to set the creation of ‘resilience’ as a key rationale for reducing civil liberties, as if resilience in itself was a good thing that needed no justification when in fact it is being used as a bland container for all sorts of questionable policies – from the use of torture and imprisonment without trial to the everyday use of intrusive high-tech surveillance. The references to the political controversies over surveillance are rather cursory and don’t really say much other than that people are worried and really they shouldn’t be. These are just the usual ‘trust us, we know what we are doing’ and ‘these are exceptional circumstances’ arguments that we have heard many times before, and they are as weak and old-fashioned coming from Omand as from anyone else.

It is worth noting that there appears to be a gathering of forces and a drawing of battle lines amongst the ‘big beasts’ of security policy in the UK. I reported yesterday on David Blunkett’s conversion to the cause of limiting surveillance society, and a few days ago, Stella Rimington, the former Head of the Security Service, MI5, condemned the current government’s approach to liberty and security in even stronger terms, arguing that the approach that Omand typifies would lead to ‘a police state’.

Surveillance has finally become an issue on which it is becoming less possible to be unengaged, apathetic or even neutral. That in itself is a good thing, however it does not guarantee a good outcome even if more major public figures suddenly discover their enthusiasm for liberty once they leave office. However, I hope this reflects a split which is growing within the current government too – normally when retired politicians and civil servants speak out, they are conscious of the way in which they speak on behalf of friends and colleagues who feel they cannot be so candid.

David Blunkett Attacks Surveillance!

I know. Pause. Take a deep breath…

You read it right. The former UK Home Secretary, with a reputation as one of the most authoritarian of recent years (though it is hard to chose in that regard), will condemn the growth of surveillance in a speech at the University of Essex today. He will also, according to Tom Young at VUnet, call for the ID card scheme (which he introduced!) to be scrapped, and for the information-sharing powers that were hidden in the new Coroners and Justice Bill, to be reduced. He also argues that the latter will happen as he knows the Justice Minister, Jack Straw, recognises the problem.

I don’t know whether to laugh or cry. Certainly it is fantastic when a prominent figure like this changes their mind and is prepared to admit that they were wrong, I just wish that sometimes they listened to the arguments against what they were doing when they were in office. In addition, of course Blunkett spent several years after leaving office writing very strong pro-surveillance, pro-ID card pieces for the populist, right-wing tabloid newspaper, The Sun, and is (or was) according to the Register of House of Commons Members Interests, paid £25-30,000 ($35-40,000 US) as the Chair of the International Advisory Committee of Entrust Inc., a company that works on digital certification and Internet surveillance, and which was involved in consortia for the ID card contract. Perhaps they have had enough of him.

But let’s hope he really has had a genuine change of heart.

Newcastle University CCTV comment

Not a million miles away from my office at Newcastle University, back in the UK, this stencil has appeared (“nothing to do with me, guv, I was in Brazil, honest…”)

Claremont Bridge, camera and comment (photo: Jon Swords)

They want us to trust them…

Maybe what Jacqui Smith needs is a dose of ‘Chinese democracy’ to go with her Chinese-style attitude to security and surveillance…

In the last fortnight there have been interesting developments that have reminded us, as if we needed reminding, that those who want to infringe on the liberty of others need to be absolutely squeaky-clean themselves or risk severe censure, and that those who introduce systems which encourage suspicion and spying should not be surprised if people no longer trust them and start to investigate their activities.

The first of course was the saga of Jacqui Smith’s apartment. The basic facts are that the UK Home Secretary has been claiming £24,000 (around $35,000 US) per year in allowances for an apartment that she does not actually live in. The particular irony (and we love a bit of irony in Britain!) was that she has been reported by a neighbour – in other words she was a victim of the kind of suspicious, back-stabbing, trust-no-one society that she has been encouraging. Of course she should resign if she had any intelligence or integrity, but we already know to the cost of our civil liberties that she does not.

Funnily enough, it is to China we go to another example and one with, it seems, a rather more accountable outcome. This is almost the second time in a row that I have unfavourably compared a western country to China – this is getting rather disturbing particularly as I am no friend of the Chinese state, being a long-term Free Tibet supporter. However, Variety (of all places) is reporting that Yu Bing, who is director of the internet monitoring department of Beijing’s Public Security Bureau, and therefore a major figure in the infamous Golden Shield, and surveillance of journalists, bloggers and net democracy activists (as well as those just trying to access unapproved content), has been arrested for taking bribes from a contractor.

Admittedly it is a lot more than the sums in the Jacqui Smith case (40M Yuan, or about $5.8M US), and corruption is endemic within the Chinese state at all levels, but it does show a rather different attitude to the establishment towards top officials who fail to live up to the standards we expect of them. Maybe what Jacqui Smith needs is a dose of ‘Chinese democracy’ to go with her Chinese-style attitude to security and surveillance?

Britain ‘risks a police state’

Following the damning reports of the House of Lords Constitution Committee and yesterday, the International Commission of Jurists, now Stella Rimington, ex-Head of the security service, MI5, has warned that Britain risks becoming a police state. In an internview with the Spanish newspaper La Vanguardia reported by the Daily Telegraph, Ms Rimington attacked government plans for the National Identity Register and the soon-expected plans for a database of all communications (delayed from last year). If even ex-heads of the security service are now asking the government to change direction, in addition to civil liberties experts, independent judges, and just about everyone else, their stock of excuses must be rapidly diminishing. The current cabinet must know that their actions smack of the desperation of a failing government desperately searching for votes in being ‘tough on crime and terrorism’… but they seem to be locked into a trajectory of ever-increasing surveillance and security that they cannot justify but cannot escape. You do wonder who is actually advising them that this is all a good idea…

UK and USA have actively undermined international law

A major new report by the independent International Commission of Jurists has concluded that the actions taken by the many countries, but in particular the USA and the UK, since 9/11 in the name of fighting terrorism add up to “a serious threat to the integrity of the international human rights legal framework.” Acording to the BBC, the eminent jurists have been ‘shocked’ by the “excessive or abusive counter-terrorism measures in a wide range of countries around the world,” including detention without trial, torture (and of course the massive extension of surveillance powers). The report, entitled Assessing Damage, Urging Action is available for download here.

Talk to Parliamentary Committee

I’ve been invited back to the British Parliament (yes, I know – I’m surprised they keep asking me back too!). This time it is to address a meeting of the Parliamentary & Scientific Committee on the subject of “Security Technology and Individual Freedom” in April, just after I get back from Brazil.

Is there anything anyone wants me to tell them? 😉

Some things are just wrong

It is disturbing that… the default position for state officials seems to be that surveillance is a normal, even required part of everyday life.

Ok, there are some things about surveillance that are arguable, some things that are good, but some things are just wrong.

The Guardian today is reporting the story of Nick Gibson who is taking over the tenancy of a pub in Islington in north London. The police have insisted that he will not receive the licence he needs to run the pub unless he installs CCTV and is prepared to hand over footage to them whenever they want. Mr Gibson complained to his Member of Parliament, Emily Thornberry (not Thornhill as The Guardian claims), but she is apparently a spineless New Labour loyalist who has no time for niceties like civil liberties. She refused to represent him on the grounds that other local residents ‘want more CCTV’.

It is one thing to want to install CCTV if you run a business. Your customers can chose whether to patronise your establishment or not. It is however, entirely another matter to be quasi-legally blackmailed into installing it by police. There is no law that mandate the installation of surveillance cameras an in fact there is no statutory basis for CCTV at all in the UK – it is something that the Lords committee report on surveillance recommended as a matter of urgency. The police are simply abusing their right to impose licensing conditions to make local policy. The installation of CCTV is not a matter of ‘common-sense’, it is an ethical judgement, and police should not be be able to override the ethical judgement of individuals by edict in this way.

This is a very worrying case, because it shows that there is a kind of cozy ‘common-sense’ authoritarianism developing in the UK. It is disturbing that despite all the research, including that of the Home Office and the Association of Chief Police Officers, showing that CCTV has very limited utility, the default position for state officials seems to be that surveillance is a normal, even required part of everyday life.