Over the past few years, revelations from the likes of Wikileaks and Edward Snowden have shattered our image of the global intelligence community. Far from the making it easier to spy on “the bad guys”, technology has made it much easier for state security agencies to monitor their own citizens.
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Against that background, former UK security and intelligence coordinator Sir David Omand has put forward a recommendation that there be international ethical standards for secret intelligence activities. In a paper issued by the Global Commission on Internet Governance (GCIG), he argues that that six principles of the ‘just war’ tradition underlying international humanitarian law could serve as a necessary framework for new norms to govern secret intelligence activities.
“Edward Snowden’s allegations highlight a major unresolved public policy issue,” says Omand, the first UK security and intelligence coordinator from 2002 to 2005 as permanent secretary in the Cabinet Office and a former Director of GCHQ, the UK signals intelligence and cyber security agency. “As a result of pressure from civil rights organizations following Snowden, governments are rightly re-examining processes and legal frameworks for intelligence activity and seeking to improve oversight mechanisms.”
Read more: Edward Snowden: we all need to fight government surveillance [SXSW]
In the paper, titled Understanding Digital Intelligence and the Norms That Might Govern It, Omand argues that new ethical norms, based on human rights considerations, for modern domestic and external intelligence activity should consider three layers of security activity on the Internet: securing the use of the Internet for everyday economic and social life; the activity of law enforcement — both nationally and through international agreements — attempting to manage criminal threats exploiting the Internet; and the work of secret intelligence and security agencies using the Internet to gain information on their targets, including in support of law enforcement.
“The adequacy of the previous regimes of legal powers and governance arrangements is seriously challenged just at a time when the objective need for intelligence on the serious threats facing civil society is apparent,” the former UK spy chief says. “The emergence of al-Qaeda and violent jihadist groups as a global phenomenon has created widespread public concern in many nations and a need for governments to reassure their publics over their management of the terrorist threat. Digital intelligence has proved invaluable in providing leads, such as identifying the contacts of terrorist facilitators, part of an intelligence chain that can allow the disruption of a terrorist plot and as a tool after an attack to identify others in the conspiracy.”
According to Omand, the ethics of the ‘just war’ tradition could apply to the activities of secret intelligence in the following ways:
1. There must be sufficient sustainable cause
There needs to be a check on any tendency for the secret world to expand into areas unjustified by the scale of potential harm to national interests, including public safety, so the purposes of intelligence should be limited by statute.
2. All concerned must behave with integrity
Integrity is needed throughout the whole system, from the reasons behind requirements, and the actions taken in the collection, through to the analysis, assessment and use of the resulting intelligence.
3. The methods to be used must be proportionate
The likely impact and intrusion into privacy of the proposed intelligence collection operation, taking account of the methods to be used, must be in proportion to the harm that it is sought to prevent and the mechanisms for determining proportionality need to be tested through independent oversight.
4. There must be right authority
There must be a sufficiently senior authorization of intrusive operations and accountability up a recognized chain of command to permit effective oversight. Right authority too has to be lawful and respectful of internationally accepted human rights.
5. There must be reasonable prospect of success
Even if the purpose is valid and the methods to be used are proportionate to the issue, there needs to be discrimination and selectivity (no large-scale “fishing expeditions”) with a hard-headed assessment of how to manage the risk of collateral intrusion on others.
6. Necessity
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Recourse to the specific method of secret intelligence collection should be only when necessary for achieving the authorized mission and should certainly not be used if there are open sources that can provide the information being sought.
While the standards seem reasonable in and of themselves, it’s unclear who would be responsible for administering these ethical standards and how they would even do so. This question becomes even more difficult to resolve when you remember that the world’s superpowers have been behind some of the most worrying incidences of spying on their citizens.
Image: CALI via Flickr.
