As citizens we are more and more concerned about our personal safety, whether its because of crime or terrorism. Security services have to operate in a difficult environment and bend the rules or make up new ones to keep us safe. Is this justified or should there be more control of our privacy? Belong spoke to two experts in internet privacy to find out.

The ECHR And Its Ruling on UK Surveillance

In September 2018, the European Court of Human Rights in Strasbourg ruled that the UK intelligence agencies’ surveillance regime violated Article 8 of the European Convention of Human Rights (ECHR), the right to privacy and family life, and Article 10, the right to freedom of expression. The court ruled that there was “insufficient oversight” by the British over which communications were chosen to be intercepted and that journalistic sources were not given enough protection.

This was the first challenge to the UK’s bulk collection of digital communications and was brought against the British government by a group of human rights charities including Amnesty International, Privacy International and Big Brother Watch.

These sweeping powers were formally given to the UK’s spy agencies by the Investigatory Powers Act 2016, although in practice most observers concede that they had been doing this for many years already.

The intelligence agencies and the UK government have “neither confirmed or denied” that data is harvested on this level. Government Communications Headquarters (GCHQ) in Cheltenham allegedly uses an extraordinarily powerful program called Tempora, which can hoover up any data that passes through UK territory and beyond.

Amnesty International believe that Tempora represents a huge reduction in the liberty of UK citizens. The process of harvesting mass data operates in complete secrecy, so it is unclear exactly what information is gathered and who it is shared with.

The security services argue that they have to have such a large net to be able to find and monitor people who are clever, sly and want to do us harm. So where does the truth lie?

Bevan Lane, an independent information security expert based in South Africa, told Belong in an exclusive interview that across the world intelligence agencies are trying to consolidate their power. “All intelligence agencies have been trying to get more and more power and some of them in my mind have got too much power and I think Britain is right up there,” he said.

James Leaton Gray, Director of the Privacy Practice

James Leaton Gray, Director of the Privacy Practice and former Head of Information Policy and Compliance at the BBC, and who is based in London, was more nuanced in his analysis of the powers of British intelligence agencies and what this ruling by the European Court of Human Rights might mean for the UK. Even after Brexit, he explained, in an exclusive interview with Belong, the UK will still have to align its own legislation with the European General Data Protection Regulation (GDPR), which means the European Commission will force the British government to deal with this ruling.

Leaton Gray explained that there will always be tension in government and society between those who want to underpin our human rights and those who think, “the most important right is the ability to stay alive and you need to intrude in order to get this.”

He also questioned the idea of privacy and how we understand it. “This idea of privacy as a space is slightly false. Privacy is a social construct and its an agreement, as it were, within society and different cultures have different boundaries around it,” he said.

GCHQ – Changing with The Times

Leaton Gray also emphasised that in terms of surveillance things have changed massively with the growth of the internet so the goal posts have moved in terms of espionage. In GCHQ’s early days there would have been little question from most of the British public that they were on the side of the establishment and the establishment were right.

The nature of espionage has also changed dramatically; before the advent of the internet it was far more focussed. “Somebody sitting in a little office listening to a Russian transmission, it was by its nature limited, because there were limited resources and therefore you threw them at the place you thought you’d most likely find a wrongun,” explained Leaton Gray.

The problem is that technology allows us to hide in cyberspace and therefore we must be able to look there too. Rights groups such as Amnesty International is concerned because the net has to be cast so wide that everyone is caught in it. Even though most things the intelligence agencies find is not of interest to them, “that’s not the same thing as not having caught them in the first place,” said Leaton Gray.  

The Growth of Private Security Firms

There are a growing number of private security firms and consultancies, most of them run by former spooks, ex-military men or former detectives. These firms often operate without much oversight by government and without the honour that has traditionally been part of the spy agencies unspoken code of conduct, although post Skripal it is now not at all clear if these unspoken rules are still in play. Lane believes these security firms present a problem.

“[They] are ruled by ex-intelligence and ex-military people who have an incredible amount of contacts in the government. Because they have the network, some understanding of how the system works and access to personal information, there are a lot of question marks about these relationships,” said Lane.

Leaton Gray shared this concern that there may be no proper oversight of these companies but was less concerned about their ability to pose a real danger to society.

“These firms will be using targeted approaches, they won’t have the resources to do a mass approach and it wouldn’t be worth their while. They will have a job to investigate a particular person, regardless of if its legal or moral, its going to be comparatively narrow,” said Leaton Gray.

Commercial Companies – The New Big Brother?

Leaton Gray and Lane are more concerned about the many companies that harvest our data simply because we use their online services and “then use it in any manner they like,” said Leaton Gray. “That clearly has a far greater level of intrusion both in terms of scale and impact for most individuals.”

Lane says that coming from South Africa has taught him that the government doesn’t always act in our best interests. During apartheid national security was used as an excuse for throwing huge numbers of people in gaol, and corruption has always been a problem. As such, South Africans are savvier about protecting their personal data, he explained.

There are a number of things we can all do to protect ourselves and our online data from all but the most targeted surveillance from the big state intelligence agencies. In terms of limiting what commercial companies like Facebook and Google know about us, “that could mean looking at encryption and also thinking about how you behave, so when it comes to volunteering information, don’t give any of your personal information away,” said Lane.

Leaton Gray also says there are little things we as consumers can do to make life more difficult for apps and websites trying to harvest our data. The increased use of Personal Data Stores (PDSs) reflects people’s growing concerns about online privacy. “Firms like My Data and Yoti, where you put your data in and they then authenticate you but without handing the data over,” explained Leaton Gray. For example, these apps can say you are a UK resident but not give away your address. 

Secret Justice – Secrecy for Secrecy’s Sake?

A law was slipped through parliament in 2013 with minimum media coverage, by coincidence it was on the same day that MPs were voting on gay marriage, and to certain lawyers, journalists and rights activists who have come into contact with it, it is the biggest threat to justice and human rights that the UK has seen for many years.

The Justice and Security Bill was designed by British lawmakers to allow evidence to be heard without the intelligence agencies revealing their sources or practices to the media or anyone else. They are called Closed Material Procedures (CMPs) and all evidence is heard in secret by special security cleared judges and advocates, the defendant or their lawyers are not allowed to see any evidence against them or even what they are accused of.

A report commissioned by the European Parliament’s Committee on Civil Liberties Justice and Home Affairs (LIBE) looked at the use of secret courts in the EU and was particularly critical of the UK.

Most people are not aware of how secret courts are used in the UK. They have been in use for many years in child protection cases but since the 2013 act are now used in complaints against the security services, or cases where the security services need to present evidence, as well as in deportation and immigration cases.

The problem is that we know virtually nothing about what cases are decided in them. Everything in a secret court is stacked in the authorities’ favour. In only one case has a secret court found against the authorities, which is the only reason we know about it. Poole Borough Council were spying on a family to see if they were lying about which school catchment area they lived in, hardly an issue of burning national security.   

The obvious problem is that in the worst-case scenario the British government can use secret courts and national security as a shield to hide behind whatever inconvenient and potentially damaging truth they want to keep hidden.

There is also less chance of even the legal profession itself correcting substandard legal procedure or miscarriages of justice in secret courts than when justice is open.

There is also the possibility that the use of secret courts will creep into areas of law for which they were never intended. In a case that was reported by the Bureau of Investigative Journalism, a rank and file civil servant in the Home Office, who helped deport failed asylum seekers and illegal immigrants, was told he was a national security risk after a visit to see relatives in his native Pakistan. His case was heard in a secret court and he was fired. He was never arrested or convicted of any crime and was not even told the very basics of the allegations against him. The effect on his life and mental health was devastating. 

Leaton Gray, who admitted that secret courts were not his area of expertise, thinks the government have gone too far with this piece of legislation. “Personally, I’m not sure the balance was properly caught in the passage of that bill,” he said. He added “as I understand it hasn’t been used much,” although it is unclear how he would know this, as many journalists and human rights activists have no idea how often they are used.

Leaton Gray also said they need proper oversight. But in July 2017 Justice Minister Chris Grayling published a very short report about Closed Material Procedures. The public and press learnt that judges had considered secret undisclosed evidence on five occasions in 2017, but no one, including charities like Liberty, had any idea what the cases were. In-fact the act only requires that the Justice Secretary report once a year on how many CMPs have been sought by the Secretary of State but not what the cases were about.  

Leaton Gray admits that “there needs to be some oversight beyond the individual court to make sure that secrecy is maintained for the right reasons, rather than just because the court doesn’t want its undertakings scrutinized.”  At the moment, at least, it would appear the UK authorites are not providing proper scrutiny of what’s going on in secret courts.

Safety More Important Than Privacy

British secret courts aside, the governments and intelligence agencies in any healthy democracy must get the balance right between human rights and the need to have a secure, safe environment where they can be practiced. 

“Will we ever get this right? Of course, we won’t because the balance itself will be moving, so we are always playing catch up with the society for which these laws were created,” said Leaton Gray.

Right now, in an environment where terror attacks are becoming common place and even New Zealand is not safe, the population will give greater weight to the voice in government that says we’ve got to provide security.

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Edward Cowley
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