Is it OK to listen in on private conversations between a lawyer and a defendant on trial for a serious crime? What about sifting through the communications of an entire country, or even continent, in pursuit of a wanted criminal or terrorist?
Ask any spy agency about their practices of collecting millions (and probably even billions) of phone calls, cell phone data, e-mails and other communications data from the population, and you’ll be probably get the same basic answer:
– ‘We are not spying on Americans.’
– ‘We collect metadata; we don’t do mass surveillance.’
– ‘We are looking for bad guys… for terrorists.’
Or ultimately, the infamous answer given by Col. Oliver North as was he was interrogated by Congress during the Iran Contra hearings:
– “I was authorized to do everything that I did.”
Though the NSA, the FBI and their counterparts overseas do have legal authority for many of their activities, the line has been blurred or arguably erased on many of the surveillance activities in the fog of the post-9/11 world and in the rapid rise of technologies that may or may not require official permission to use.
Ultimately, the de facto authority for warrantless wiretaps and massive data sweeps has been justified less through careful court review and more through the practice of policy.
– ‘Well, we did it before and no one objected.’
– ‘Well, they did it and no one objected.’
– And: ‘There isn’t proof any harm was done, and no one’s privacy was violated anyway. We don’t read your emails or listen to your phone calls anyway.’
Now, spy agencies in the UK are looking to strengthen the law in favor of the activities they have already been doing, and which they say they’ve had legal authority to do, but which have been controversial – namely, “bulk interception of data and interception of legally privileged material.”
According to Vice News:
Sweeping new laws are needed to govern the investigative powers of Britain’s spying agencies, the parliamentary committee that oversees intelligence services MI5, MI6 and GCHQ has said.
The most secretive and powerful spy agencies in the UK want a “clearly enshrined” declaration that their actions are considered lawful, in order to cement their practices and bat down public criticism. Their sentiment is that:
Current legislation is “unnecessarily complicated,” and should be replaced by a single act of parliament, concluded the committee’s 149-page report — the product of an 18-month inquiry into the legal framework governing the powers of Britain’s intelligence agencies.
The interception of “legally privileged material” has been particularly controversial, given that it includes conversations between lawyers and their clients, who depend upon privacy in building a case or defense. As in the U.S. attorney-client privilege, the UK legal professional privilege is part of the rights of due process long established under common law, and only recently violated en masse by snooping practices in the technological age.
According to Vice News, however, the spy agencies have argued that they are acting under the law, despite obvious conflicts of interest and breaches of trust in lawsuits where the government is a party:
While “sympathetic” to the argument that certain professions require privacy to carry out their jobs, Britain’s intelligence agencies must have the ability to intercept such communications, it said.
The committee suggested, however, that “specific professions” may justify “heightened protection” and “statutory protection should be considered.”
The findings are likely to prove controversial because of the conflict of interest that could arise in cases brought against the government. An investigatory powers tribunal (IPT) case is currently looking at whether GCHQ’s interception of client-lawyer communications enabled the authorities to “rig” a case brought by a Libyan rebel leader, Abdelhakim Belhaj, against Britain over its role in his rendition by the CIA to Muammar Qaddafi’s jails.
The bulk interception and collection of data has, of course, been going on wholesale in every agency, thanks to massive data sharing between the NSA and GCHQ – the UK counterpart to the NSA. Using ‘Big Data’ algorithms allows these agencies to organize an overwhelming amount of data into useful data streams that can paint a larger picture – like the behavior of a school of fish – or zoom in to the minutia – like the whereabouts about a person of interest over specific range of time.
Though GCHQ was admittedly using the shared NSA data to “appl[y] extensive ‘targeting’ and ‘filtering’ to the data amassed,” it has defended its actions by denying that it is ‘reading or collecting’ everyone’s emails:
“It is evident that while GCHQ’s bulk interception capability may involve large numbers of emails, it does not equate to blanket surveillance, nor does it equate to indiscriminate surveillance,” the committee said in a statement.
“GCHQ requires access to internet traffic through bulk interception primarily in order to uncover threats,” the committee said. “GCHQ is not collecting or reading everyone’s emails: they do not have the legal authority, the resources, or the technical capability to do so.”
While the law has been interpreted to uphold these practices, the IPT tribunal did rule that GCHQ violated ‘human rights’ for seven years during which time there was no public disclosure of the policies allowing warrantless data collection and systematic data sharing with the NSA.
Great, there’s a real consolation prize.
And with the heightened anti-terror atmosphere still at full throttle after the Charlie Hebdo attacks, the spy agencies in the UK and throughout Europe are not just looking for confirmation that their practices can continue, but that their powers to filter the data of an entire continent through a sieve are expanded.
And while they keep telling you that it is to catch terrorists, bad guys and all just ‘for your safety,’ keep in mind what former NSA and CIA chief Michael Hayden said about the practices of his field:
“I am not a law enforcement officer. I don’t suspect anybody. I am simply going out there to retrieve information that helps keep my countrymen free and safe. This is not about guilt. In fact, let me be really clear. NSA doesn’t just listen to bad people. NSA listens to interesting people. People who are communicating information.”