a double-post day! This morning I came across this article saying that BoingBoing had leaked a couple of GCHQ documents from Wikileaks Snowden Files (The files are available at the bottom of the BoingBoing artcile).
One is short and interesting, and the other is much longer, and slightly less interesting for a non-SIGINT specialist. GCHQ deals with SIGINT, or Signals Intelligence, basically intercepted communications, and data about communications between people, machines, and computers.
Both files have legality sections, which obviously caught my eye. In the shorter file, ‘What’s the worst that could happen?’ (hopefully not being leaked!), most interesting to me was ‘Could the Law of Armed Conflict Apply?’ This is something I’ve been wondering about in relation to the NSA’s role in Targeted Killing. I presented on this topic at both Liverpool and Edinburgh Postgraduate Law Conferences.
I am hoping to get this idea published, so I’ll just summarise it: If civilian intelligence officers are directly involved in targeting of terrorists, they have the status of Civilians Directly Participating in Hostilities, and all their actions are illegal (they would also share this status with the terrorists). My idea was to re-configure intelligence officers in direct military support roles as a paramilitary so that they have to abide by the Law of Armed Conflict (LoAC), military discipline, and be subject to military courts which are slightly more transparent than intelligence courts.
However, I really don’t know how GCHQ fit into military operations, and so don’t know what sort of operations they could do where LoAC could apply. This being a document from before the Snowden leaks, there weren’t any UK targeted killings carried out, so GCHQ couldn’t be doing the same as the NSA. I’m really fascinated by this, and other than helping military signals units out, I’m struggling to work out what GCHQ would be doing to be covered by LoAC. If anyone has any ideas, please let me know.
The second, longer document has a legality section that covers what I always knew from my undergraduate days where I looked at covert policing. The UK has a very stringent legal framework for intelligence operations. From all of the Snowden/Wikilieaks stuff, I had wondered if our intelligence agencies were just paying lip service to the law, but this document reaffirms their commitment to the law in my eyes. Why write about legal issues in a document you wouldn’t expect to go outside GCHQ? I hope this shows they do genuinely operate within the law, or at least within the spirit of the law.
The document details how GCHQ operations are covered by the Regulation of Investigatory Powers Act, Intelligence Services Act, and the Human Rights Act. It also notes all GCHQ actions must be necessary and proportionate, and within a Human Rights framework. Indeed, the document notes that for GCHQ operations, the right to privacy of ordinary citizens can only be breached in the interests of national security, the economic well-being of the UK, and in the prevention or detection of serious crime.
In a legal procedures section, it details how only when doing analyses that could identify an individual, or ‘behaviours which are sufficiently precise that they apply to only a few individuals‘, would a GCHQ officer need to fill out a Human Rights ‘log’. To me, this signifies that GCHQ lawyers do not see analysis which cannot identify an individual as a breach of privacy. I kind of agree with them, it’s not really an invasion of privacy, if even they don’t know whose data they are looking at.
I mean, an analyst sitting in the Doughnut at Cheltenham thinking ‘Mr. X likes Facebook a lot. Ms. Y reads the Daily Mail’ isn’t really looking into their lives if they don’t know who they actually are. But, that’s not really the point, is it. It is not a nice feeling knowing that out there, somewhere, behind a computer is someone dealing with my data, and it is outside of my control. I hope they really do stay within the law.
Until next time!