The state of surveillance
A serious debate about surveillance then isn’t about shutting down the agencies or stopping surveillance. It is, however, essential to protecting our digital economy and our leadership on internet issues around the world.
Indeed, to justify inaction on the grounds that we may not have the worst oversight regime is missing the point. Trust is essential to foreign policy and digital businesses that have customers around the globe. The Snowden revelations have shone a light on the activities of the agencies in a way that even the head of the NSA admitted was overdue.
What has been striking is the assumption by some that these concerns will blow over because they are not being debated in the majority of the UK press. The rest of the world, from the UN to the G20, is going to have the debate if we do or not.
Already, Bloomberg has put the cost to the US economy at $35bn. Google publicly stated their outrage at the actions of GCHQ and the NSA in hacking into their data flows. Vodafone last week became the first major UK telecoms business to call for greater transparency about how companies comply with Government requests for data. Others should follow.
Amid this backdrop, President Obama recognised the need to act. While his speech on Friday only touched on a handful of the 46 recommendations his review group made, it made clear the status quo is not an option.
What struck me most vividly when I visited Washington is the divergence of figures uniting around reform. From the Tea Party to the American Civil Liberties Union, libertarians to staunch Obama supporters. What has united them is not just the attack on the privacy of innocent people, but the constitutional questions behind the massive expansion in data collection.
While the separation of powers may a phrase more commonly found in legal and political textbooks than the mainstream press, it is fundamental part of the debate in America. As technology has moved much faster than the law, interpretation of what is legal has gone far beyond what lawmakers intended, including the man who wrote the Patriot Act in the US, a critical piece of the surveillance landscape.
This executive branch overreach has angered Republicans and Democrats alike, as a fundamental constitutional issue, facilitated by a judicial process lacking any adversarial debate. This issue is what led President Obama to call on Congress to reform the Foreign Intelligence Surveillance Court to include a public advocate to offer a critical voice on Government arguments.
In Britain, the issue is far more pronouced. Judicial oversight is entirely absent, with the executive branch responsible for nominating members of the ISC and authorising surveillance warrants. The various Commissioners report to the Prime Minister, not Parliament.
Calls for reform are not new. In 2004 the Foreign Affairs Select Committee called for the ISC to become a full Parliamentary committee, something backed by former Director of Public Prosecutions Lord MacDonald and many more. The question goes to the heart of the constitutional issue of oversight. As former Court of Appeal judge Sir Stephen Sedley noted last year, he described ‘a statutory surveillance scheme shrouded in secrecy, part of a growing constitutional model that raises the question as to whether the tripartite separation of powers, legislature, judicial and executive still holds good’
Sadly, the ISC’s call for evidence – open until the 7th February – does not even ask about current oversight arrangements. This omission is both glaring and troubling.
These questions are of fundamental importance to UK PLC and the protection of British civil liberties. The longer we delay in addressing them, the greater the damage to British businesses and the harder it becomes to offer a credible counter to those nations around the world who seek to stifle the free flow of information to, and from, their citizens.