from the satisfied dept
As Techdirt discussed back in March, oversight of the UK's intelligence services is essentially one person, working part-time, one of whose techniques for establishing whether everything is being conducted according to the rules and the law is to take the word of the heads of the services that it is. The Right Honorable Sir Mark Waller -- for it is him -- has now issued his annual report on the UK's Intelligence Services (pdf). Despite Snowden's revelations of massively-intrusive spying on the entire UK population, and much of the world besides, Waller apparently doesn't feel that he needs to change the way he does things:
When I first took up my role I was concerned that twice yearly inspections and a sample of warrants might not be sufficient. However, taking into account the method of my review as set out in Chapter 2, the robust and rigorous internal compliance tests and assurances, and the culture and ethos of the intelligence services, I am satisfied that it is sufficient.
Here's a sample of his general attitude to the services he is supposed to be watching over:
The same ethos of honesty and integrity run through the service whether at Head Office or overseas. Having interviewed officers posted
to these stations I was satisfied that they had no desire to act otherwise than in accordance with UK law and standards.
Perhaps because of that touching faith in the "honesty and integrity" of the UK's spies, Waller sees no problem with statements such as the following:
I required the Home Office to provide me with a list of every new warrant issued since the last list was produced, and all extant or cancelled warrants, as well as any warrants which may have been refused by the Home Secretary. The list set out the type of operation with notes on each case. The list of warrants issued by the Home Office and the list I received from MI5 corresponded. I was satisfied that both had provided a full and complete list.
He may well have been "satisfied", but how could he know the list was "full and complete"? And how can he exclude the possibility that there were operations carried out illicitly, without warrants? Since they wouldn't be on any list, he would naturally be unable to spot their absence. Despite this pervasive complacency, there are one or two signs that Edward's Snowden's string of revelations have at least raised questions in Waller's mind. For example, there is an entire chapter entitled "Media Allegations", where we read:
I have discussed with all three intelligence services [MI5, MI6 and GCHQ] the impact of the revelations made by Edward Snowden. The heads of each agency clearly set out during the public evidence session before the Intelligence and Security Committee (ISC) on 7 November 2013 how alerting targets and adversaries to UK capabilities means that it becomes more difficult to acquire the intelligence that this country needs. The agencies provided me with clear evidence to substantiate this. In the interests of national security, I am not in a position to give further detail in my open report.
What's interesting here is that Waller doesn't even try to address the central issues raised by Snowden's leaks concerning massive and disproportionate surveillance by the UK; all he says is that the heads of the services offered evidence that revealing details would make it harder to carry out spying -- possibly true, but irrelevant.
Another tiny sign that even the UK's intelligence watchdog is slightly concerned by what Snowden has told us is the following note in the report:
I have recommended to all the agencies that separate consideration be given to the individual privacy being invaded as part of the test for proportionality. In all cases I want to see this set out separately in the application for these intrusive techniques and to see this wording reflected in the warrants.
Of course, that recommendation is completely toothless: the UK's spy agencies can simply claim that they have "considered" privacy issues before merrily spying on everyone as before.
All-in-all, the Intelligence Services Commissioner's report gives the impression of someone doing their best to provide scrutiny of the UK's spying activities, but hopelessly out of their depth in the digital world. The report is focused on traditional warrants, and on whether they contain errors -- usually minor clerical ones. It ignores the larger question of whether the warrant system is adequate to address things like GCHQ's Tempora program, which is capable of downloading, storing and analyzing huge quantities of the world's Internet traffic, or the recently-revealed interception of all the UK's Google, Facebook, Twitter and YouTube traffic using the legal fiction that these are "external communications".
Moreover, even in the unlikely event that the Right Honorable Sir Mark Waller woke up one day with a burning desire to scrutinize these kinds of activities, it seems unlikely he would be able to do so on the basis of a twice-yearly inspection.