The Daily Star
July 19, 2013
By Michael Glackin
No one should be surprised that the British Parliament’s intelligence and security committee concluded Wednesday that the country’s intelligence surveillance division, GCHQ, did not break any laws in its use of America’s Prism surveillance program, which has provided access to the content of millions of private communications. The British government has been saying the same thing for weeks, ever since Edward Snowden, a contractor who worked with the National Security Agency, exposed the shocking extent of government intrusion into our day-to-day lives.
However, the committee, which carried out a hastily arranged investigation into Snowden’s allegations, conceded it had only focused on intelligence information that GCHQ had requested from the United States on particular suspects, where a warrant had been granted, as required by British law, and signed by a minister. Small wonder then that it found no evidence of law breaking.
It did not examine the many instances in which the NSA voluntarily sent information it had gathered through Prism to GCHQ. This was a serious omission since most of the surveillance data GCHQ received via Prism was passed in this manner.
The inquiry also focused only on the content of private communications that had been intercepted, ignoring the vast amount of metadata that Prism has harvested and shared.
The committee did at least call on the government to review whether current legislation governing access to private communications “remains adequate” for the level of access GCHQ has with the Prism program. But its principal message to the snoopers was to carry on intercepting vast amounts of information, including billions of private emails and messages, without parliamentary knowledge or approval.
The legality of the blanket surveillance programs revealed by Snowden will be more thoroughly tested in separate legal actions in the United States and the United Kingdom. But whether these will shed any further light on the issue is a moot point. The British legal challenge, launched by Privacy International, will almost certainly be heard in a secret court rather than in a public hearing.
What we do know is that the conclusion of the intelligence and security committee, and the assertions from Downing Street and the White House that no laws have been broken, betrays how easily governments can corrupt the law under the guise of national security.
They get away with it because the NSA and GCHQ share their surveillance information, and there is no legal regime within the U.K. to govern this information sharing. Consequently, the government can state correctly, if disingenuously, that no law has been broken. By obtaining private information from the NSA, instead of conducting the interception and collection itself, GCHQ is neatly sidestepping the flimsy protections safeguarding individual privacy in the U.K.
At the same time, information from GCHQ’s equivalent of Prism, Tempora, which harvests millions of emails, telephone calls and Skype conversations from the undersea cables carrying Internet traffic in and out of the U.K., is shared with the NSA, enabling the U.S. agency to circumvent America’s much stronger legal safeguards.
But this mutual back scratching is only part of the complex picture. Because in reality, while there doesn’t appear to be a legal framework to govern any of this activity, there is what can be best described as a legal tool, one that provides the snoopers with all the leverage they need to do their spade work regardless of the legal niceties.
That tool in the U.S. is the foreign intelligence surveillance court, known as the FISA court, a secret body set up in 1978 to monitor federal phone tapping, but which now effectively rubber stamps the illegal snooping into the private lives of millions of Americans.
According to critics of the surveillance programs, the FISA court has consistently violated the Fourth Amendment of the U.S. Constitution, which entitles Americans to be secure “in their persons, houses, papers and effects, against unreasonable searches and seizures.” The FISA court decides, in secret judgments, what is “unreasonable” and so far has found little that is unreasonable in the NSA surveillance operations, which trawl the Internet communications and phone calls of millions of law-abiding individuals. The FISA court doesn’t provide a quasi-legal fig leaf for the illegal and unconstitutional activities of the NSA’s Prism program; it actually aids and abets the activities.
Because it operates in the shadows, we do not know if there is one recorded instance of the FISA court ever overruling an NSA request to harvest and store information on Americans. But we do know that Yahoo fought against being press ganged into allowing Prism access to its servers in a case heard before the FISA court in 2008. The FISA court overruled Yahoo’s protests and forced the company to participate in the program.
A similar toothless watchdog exists in the U.K., the Interception of Communications Commissioner Office, which was set up to scrutinize the activities of GCHQ and other agencies under the 2000 Regulation of Investigatory Powers Act, or RIPA.
Despite the adage that “no one over 40 understands the Internet” the ICCO is headed by a 72-year-old retired judge and has less than 10 full-time staff members to review the interception activity of not just all British spy agencies (which employ around 10,000 people in various surveillance activities alone), but also the Metropolitan Police, the U.K.’s Revenue and Customs department, the Foreign Office, the Home Office and the Defense Ministry.
To believe that a retired septuagenarian and a handful of civil servants can adequately oversee the activities of all these agencies or provide accountability is laughable. The ICCO’s inadequacies were laid bare in The Independent newspaper this week which revealed that publication of the office’s annual report had to be delayed and revised because it failed to even mention Prism and Tempora.
Like the FISA court, the ICCO doesn’t provide meaningful scrutiny of surveillance efforts. It merely allows the intelligence agencies to get on with it, unhindered, without the knowledge or approval of the British people or elected politicians.
However governments describe all this, it seems clear that the rule of law, the cornerstone of any democracy worthy of the name, is being turned inside out to allow unwarranted intrusion into the private lives of the innocent by faceless intelligence officials and spineless ministers. Legal or not, surely this represents a betrayal of public trust, democracy and accountability.
Michael Glackin is former managing editor of Beirut based newspaper THE DAILY STAR.
A version of this article appeared in the print edition of The Daily Star on July 19, 2013, on page 7.