UK's Part-Time Intelligence Watchdog Thinks Twice-Yearly Inspection Of Spy Services 'Sufficient'

from the satisfied dept

As Techdirt discussed back in March, oversight of the UK's intelligence services is essentially one person, working part-time, one of whose techniques for establishing whether everything is being conducted according to the rules and the law is to take the word of the heads of the services that it is. The Right Honorable Sir Mark Waller -- for it is him -- has now issued his annual report on the UK's Intelligence Services (pdf). Despite Snowden's revelations of massively-intrusive spying on the entire UK population, and much of the world besides, Waller apparently doesn't feel that he needs to change the way he does things:

When I first took up my role I was concerned that twice yearly inspections and a sample of warrants might not be sufficient. However, taking into account the method of my review as set out in Chapter 2, the robust and rigorous internal compliance tests and assurances, and the culture and ethos of the intelligence services, I am satisfied that it is sufficient.

Here's a sample of his general attitude to the services he is supposed to be watching over:

The same ethos of honesty and integrity run through the service whether at Head Office or overseas. Having interviewed officers posted to these stations I was satisfied that they had no desire to act otherwise than in accordance with UK law and standards.

Perhaps because of that touching faith in the "honesty and integrity" of the UK's spies, Waller sees no problem with statements such as the following:

I required the Home Office to provide me with a list of every new warrant issued since the last list was produced, and all extant or cancelled warrants, as well as any warrants which may have been refused by the Home Secretary. The list set out the type of operation with notes on each case. The list of warrants issued by the Home Office and the list I received from MI5 corresponded. I was satisfied that both had provided a full and complete list.

He may well have been "satisfied", but how could he know the list was "full and complete"? And how can he exclude the possibility that there were operations carried out illicitly, without warrants? Since they wouldn't be on any list, he would naturally be unable to spot their absence. Despite this pervasive complacency, there are one or two signs that Edward's Snowden's string of revelations have at least raised questions in Waller's mind. For example, there is an entire chapter entitled "Media Allegations", where we read:

I have discussed with all three intelligence services [MI5, MI6 and GCHQ] the impact of the revelations made by Edward Snowden. The heads of each agency clearly set out during the public evidence session before the Intelligence and Security Committee (ISC) on 7 November 2013 how alerting targets and adversaries to UK capabilities means that it becomes more difficult to acquire the intelligence that this country needs. The agencies provided me with clear evidence to substantiate this. In the interests of national security, I am not in a position to give further detail in my open report.

What's interesting here is that Waller doesn't even try to address the central issues raised by Snowden's leaks concerning massive and disproportionate surveillance by the UK; all he says is that the heads of the services offered evidence that revealing details would make it harder to carry out spying -- possibly true, but irrelevant.

Another tiny sign that even the UK's intelligence watchdog is slightly concerned by what Snowden has told us is the following note in the report:

I have recommended to all the agencies that separate consideration be given to the individual privacy being invaded as part of the test for proportionality. In all cases I want to see this set out separately in the application for these intrusive techniques and to see this wording reflected in the warrants.

Of course, that recommendation is completely toothless: the UK's spy agencies can simply claim that they have "considered" privacy issues before merrily spying on everyone as before.

All-in-all, the Intelligence Services Commissioner's report gives the impression of someone doing their best to provide scrutiny of the UK's spying activities, but hopelessly out of their depth in the digital world. The report is focused on traditional warrants, and on whether they contain errors -- usually minor clerical ones. It ignores the larger question of whether the warrant system is adequate to address things like GCHQ's Tempora program, which is capable of downloading, storing and analyzing huge quantities of the world's Internet traffic, or the recently-revealed interception of all the UK's Google, Facebook, Twitter and YouTube traffic using the legal fiction that these are "external communications".

Moreover, even in the unlikely event that the Right Honorable Sir Mark Waller woke up one day with a burning desire to scrutinize these kinds of activities, it seems unlikely he would be able to do so on the basis of a twice-yearly inspection.

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Filed Under: gchq, inspection, mark waller, surveillance, trust, uk, watchdog

Pentagon's Watchdog In Charge Of NSA Oversight Admits He Was 'Not Aware' Of NSA's Bulk Data Collection

from the oversight! dept

We hear it over and over again from defenders of the NSA: the programs, such as the bulk collection of call metadata are perfectly legal in part because of oversight from "all three branches" of government. Of course, that's long since been debunked (especially seeing that all three branches have also demanded reforms to the very same programs). But one of the key points is that this "oversight" is usually not actually oversight at all, because the all important details are obfuscated or otherwise totally hidden from the overseers. And while this has been covered in fairly great detail about the lack of real oversight from Congress and the courts, what about the executive branch?

Well, wonder no more. The main guy in charge of supposedly "overseeing" the NSA's efforts and making sure that they're within the law (even if right up to the edges of it) is the Defense Department's Inspector General (currently Anthony C. Thomas), and he's just admitted that had no idea that the NSA was collecting bulk metadata on a huge swath of phone calls inside the US. According to a report by Spencer Ackerman at The Guardian:

“From my own personal knowledge, those programs, in and of themselves, I was not personally aware,” Thomas said.

He also admitted that the DOD isn't currently, nor does it have any plans to investigate the NSA's bulk surveillance efforts. Basically, he just leaves that up to the NSA's own Inspector General:

“If the NSA IG is looking into something and we feel that their reporting, their investigation is ongoing, we’ll wait to see what they find or what they don’t find, and that may dictate something that we may do. In the course of a planning process, we may get a hotline [call], or we may get some complaint that may dictate an action that we may or not take,” Thomas said.

Specifically on bulk NSA surveillance, Thomas said he was “waiting to see the information that the NSA IG brings forward with the investigations that are going on, and what we often do not want to do is conflict.”

So, this guy, who is in charge of the Pentagon's oversight of the NSA is basically taking a hands off approach to the NSA issue, letting them work out their own solution to what has been declared illegal and unconstitutional activities by two separate executive branch review panels. That doesn't inspire confidence. In fact, it inspires something entirely different: cynicism and a general distrust in government. For a government that keeps saying that the NSA has to rebuild "trust" with the American public, you'd think that it would start by actually having the people who have the mandate for oversight actually do something.

Filed Under: anthony thomas, bulk metadata, defense department, dod, inspector general, nsa, oversight, pentagon, section 215, surveillance, watchdog

Revolving Door Undermines FCC's Watchdog Role

from the network-neutrality dept

In previous installments of my series on network neutrality, I've pointed out that the end-to-end principle is not as fragile as a lot of people assume. Technological platforms have a kind of momentum that make them hard to change once they've become established, and so it's not at all obvious that major broadband providers have the ability to significantly change the Internet's architecture. In my view, this is one reason to be skeptical of making the FCC the nation's network neutrality cop.

Here's a good example of another reason for skepticism: Catherine Bohigian, chief of the office of Strategic Planning and Policy Analysis at the Federal Communications Commission, stepped down effective September 5. Her next job will be with cable giant Cablevision. According to the Washington Post, Bohigian has worked closely with chairman Kevin Martin throughout his tenure. And before her tour of duty at the FCC, Bohigian—like Martin—worked at Wiley, Rein & Fielding, a private law firm specializing in communications law. In other words, Bohigian first worked at a law firm that regularly appears before the FCC, then she became one of the key decision-makers at the FCC, and now she's going to be working for a company that regularly appears before the FCC. It's reasonable to assume that she'll be using her intimate knowledge of the regulatory process—and, perhaps, her close ties to other FCC staffers—to gain regulatory advantages for her employer.

Now, this isn't illegal. It's not even unusual. But this kind of low-grade corruption does give us a window into how the regulatory process works. Theoretically, the FCC is supposed to be a neutral agency that enforces the law in the public interest. In practice, the revolving door between the commission, major telecom companies, and the high-priced law firms that represent those companies means that the people who staff the agency and the people who lobby the agency are largely the same people at different points in their careers. In the next few years, if Cablevision wants to make sure that a particular FCC decision comes out in a way that promotes their interests, they won't just be able to make their arguments via the formal legal process. They'll also be able to dispatch Bohigian to have lunch with key FCC staffers—many of whom will be her friends, and possibly her former employees—to personally plead Cablevision's case. And of course, many of those staffers will be thinking about what their next gig will be, and it will be obvious that their chances at getting a cushy job at a major telco or cable company will be enhanced if they're helpful to those companies while they're still with the Commission.

You could mitigate this somewhat with stricter lobbying rules. For example, Congress imposes a one-year time limit on Hill staffers lobbying their former colleagues after they take jobs in the private sector. Maybe the FCC should beef up its own conflict-of-interest rules. (Update: As some commenters have pointed out, senior FCC officials are are already subject to a one-year cooling off period. This restriction could obviously be broadened or extended in various ways, but it's not going to be feasible to write rules that would eliminate the influence of industry insiders at the FCC.) But shutting down the revolving door completely would be extremely difficult. The regulations the FCC enforces are complicated, and the FCC needs a pool of people with in-depth understanding of those rules in order to do its job. But for people with expertise in the areas of law the FCC administers, the only other use for those skills is representing clients before the FCC. A ban on former FCC staffers working for telecom firms or the law firms that represent them would make it extremely difficult for the FCC to recruit talent, because working at the FCC would essentially be a dead-end job. Once somebody had taken a job at the Commission and developed expertise in telecom law, she'd have no real options for using those skills.

Which means that when we're debating new regulations of the telecom industry, we have to remember that the rules will be enforced by an agency that has close ties to incumbent telco interests. If Congress passes network neutrality regulations, those regulations will be interpreted and enforced by an agency whose key staffers have close ties to the major telephone and cable incumbents. Which means that the results are likely to be more incumbent-friendly—and less consumer-friendly—than network neutrality advocates expect. If Cablevision gets in hot water for a network neutrality problem, they'll be able to dispatch Bohigian and others on their payroll to make sure the company doesn't get more than a slap on the wrist. And, as I'll explain in the next installment, not only can this sort of lobbying render regulations toothless, but in some cases it can actually make things worse by allowing incumbents to tie their competitors up in red tape.

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Other posts in this series:

• Censoring The 'Net Is Hard
• Ownership Doesn't Always Mean Control
• Changing The Internet's Architecture Isn't So Easy
• Revolving Door Undermines FCC's Watchdog Role

Filed Under: corruption, fcc, lobbyists, net neutrality, politics, regulations, watchdog