On 10th March 2015, I had an article published (in German) on the GCHQ’s threats to end cooperation with Germany’s foreign intelligence agency if the German NSA-Inquiry continued looking into the questionable surveillance practices of the GCHQ. I quoted Guardian editor-in-chief Alan Rusbridger who suggested at a discussion panel on the Snowden-revelations on 2nd March that politicians in the UK find it almost impossible to have a rational discussion about the subject of surveillance. On the same day that my article went online, UK Foreign Secretary Philip Hammond went ahead and, once again, proved Rusbridger’s point. Say what? Snowden debate “cannot be allowed to run on forever” Hammond said that Britain needed to “draw a line under the debate about mass surveillance by the intelligence agencies sooner rather than later to stop them getting distracted from their work.” Hammond
also threatened added that his party (the Conservatives) “would legislate early in the next parliament to give the security services extra powers” because the debate about privacy sparked by the American whistleblower Edward Snowden… “cannot be allowed to run on forever”:
We need to have it, address the issues arising from it and move on sooner rather than later if the agencies are not to become distracted from their task. The prime minister, home secretary and I are determined we should draw a line under the debate by legislating early in the next parliament to give our agencies clearly and transparently the powers they need and to ensure our oversight regime keeps pace with technological change and addresses the reasonable concerns of our citizens.
I cannot be the only one who was momentarily rendered speechless by these comments. Apart from the fact that I find Hammond’s kind concession that we “need to have” the debate extremely patronising, I also have a couple of questions: Just what is Hammond talking about when he says that we need to have this debate but then also move on from it “sooner rather than later”? How is a rushed debate that is ended by the government if and when it wishes a fruitful debate at all? Speaking of: which debate, actually? I have commented repeatedly on how debate in the UK was muted at best and how that didn’t look likely to change any time soon – not least because the UK government has repeatedly made efforts to stifle it. Which beckons the question what it is that Hammond is so desperate to move on from. Without doubt the rather uncomfortable revelations that keep being reported based on the Snowden documents. Like the one that NSA and GCHQ in cooperation hacked Gemalto, the world’s largest SIM card manufacturer. Or perhaps legal challenges like the one which recently led to a ruling by the Investigatory Powers Tribunal that the sharing of mass surveillance data between GCHA and the NSA was unlawful for the past seven years. This was followed closely by an admission from the British government that “[t]he regime under which UK intelligence agencies, including MI5 and MI6, have been monitoring conversations between lawyers and their clients for the past five years [was] unlawful” and “that the activities of the security services have failed to comply fully with human rights laws.” None of that inspires the kind of confidence that should prompt us to pack in the debate or grant the intelligence agencies more powers. Debate isn’t the enemy If, for the sake of the argument, we were to give Hammond the benefit of the doubt, we might want to interpret his comments to mean that the government is seeking to clearly regulate surveillance powers and subject them to proper oversight and a strict, legal framework. Any faith of such kind is shaken by the knowledge, however, that regulating surveillance in the past has sometimes meant to make previously illegal practices legal and then continue them and that legislation governing current surveillance powers is often riddled with loopholes “big enough to drive a bus through”. Similarly, meaningful oversight has been proven, time and again, to be insufficient. In any case, the new legislation Hammond seems to have in mind does not inspire any confidence whatsoever:
I am quite clear that the ability to intercept bulk communications data, to subject that metadata to electronic analysis and seek to extract the tiny, tiny percentage of communications that may be of any direct security interest does not represent an enhancement of the agencies’ powers. Rather it represents an adaptation of those powers to the realities of the 21st century.
Okay, so what it seems that Hammond would like the agencies to be able to do is to collect communications metadata in bulk and then filter out “the tiny, tiny percentage of communications that may be of any direct security interest”. Sound familiar? That’s because it’s already happening. So no; surveillance powers would not be extended. They would be kept as they are – possibly within amended legal framework that would make any challenge to them even harder than it already is. What is more, these are powers that have already been proven to be ineffective! I have a different suggestion: how about legislating in a way that makes the work of the agencies more efficient rather than – as David Cameron has previously suggested and Hammond also hints – come up with bonkers solutions like banning encrypted communications? Encryption is not “the enemy”, debate isn’t “the enemy”. Millions of citizens not suspected of any wrongdoing aren’t “the enemy”. Mass surveillance, however, is very dangerous for democracy, especially if not subjected to proper oversight. How are we to trust laws that are passed quickly and early simply to “reassure the public” and put an end to a debate about our civil liberties versus our security? Laws like the Snooper’s Charter for example which was torpedoed by the Lib Dems for good reason in the past? Make no mistake: what Hammond is suggesting is new legislation that will “reassure” the public, not necessarily make it safer by curbing surveillance and making surveillance more effective. Nor does he seem to want to seriously consider people’s concerns – for that to be possible, we would need to have the debate. Perhaps because politicians find it impossible to have a rational discussion about mass surveillance not just in the UK, is it that they declare a debate over before it has even properly begun. Human Rights standards: a slippery slope We cannot let this happen, especially when considering Hammond’s comments that “he was seeing more and more cases cross his desk in which he had to make decisions about sharing intelligence with agencies from other countries that do not uphold the same human rights standards as the UK”:
Not all of the countries with whom we might like to share information in the interest of national security adhere to the same high standards as the UK in how they treat suspects. These are often finely balanced decisions.
Let this sink in: what Hammond seems to be saying here is that intelligence is shared with countries that do not adhere to the same human rights standards as the UK – in addition to the UK intelligence agencies engaging in practices that are considered in breach of European Human Rights laws. This raises even more questions – and frightening ones at that: Do we really want to be complicit (by allowing our government to be) in violating human rights? Do we really want our government to continue to openly criticise other nations for their human rights record and then cooperate with them behind closed doors? Let me put the question a different way: are things like torture and drone killings ever justified and do we want to be complicit in them in any way? If we think the answer to that is yes then we might as well let Hammond et al go ahead. But before we do, I have one more question: Just what does Hammond mean when he says that the security services being “distracted” by the debate? Seriously? The security services are distracted from doing their job because citizens in a democratic society are having a healthy debate about unhealthy practices? Apart from the fact that the debate hasn’t been as emphatic as all that, frankly, the suggestion is plain ridiculous and I am mentioning it to show how nonsensical some of Hammond’s arguments really are. Surely, professional organisations like the GCHQ or the MI5 can tolerate a bit of debate without losing their effectiveness? Keep calm and carry on debating The threat to Britain, its security services or the effectiveness of their work isn’t a debate that we are barely even having. It is, as Simon Jenkins remarks in response to different but equally worrying comments from Hammond, “hysteria”:
[Hysteria] drives language to extremes. It encourages reckless responses and feeds the greed of the security industry. All sense of proportion vanishes as the politics of the scare grips every politician, every lobbyist, every media outlet.
I don’t quite agree with Jenkins that the answer to this may be self-censorship. But hysteria in politics to legalise programmes that are a threat to democracy is indeed something we need to be wary of. In any case, what Hammond’s comments prove is not only that a rational discussion about surveillance is hardly possible in British politics, but also that we must not wait for politicians to accomplish the “balancing act” (Rusbridger again) between security and civil liberties on our behalf. Because they won’t.