Recent classified information leaks have shone a spotlight on current challenges with digital intelligence gathering processes and legal frameworks; yet, digital intelligence has proved invaluable in confronting modern day threats. A new paper issued by the Global Commission on Internet Governance (GCIG) proposes 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.”
In 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,” Omand 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.”
In his paper, Omand outlines how the ethics of the ‘just war’ tradition could apply to the activities of secret intelligence:
- 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.
- 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.
- 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.
- 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.
- 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.
- Necessity: 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.
The GCIG is a two-year initiative launched by the Centre for International Governance Innovation (CIGI) and Chatham House. Chaired by former Swedish Prime Minister Carl Bildt, the GCIG will produce a comprehensive stand on the future of multi-stakeholder Internet governance.
Understanding Digital Intelligence and the Norms That Might Govern It is No. 8 in the Global Commission on Internet Governance Paper Series. To access this paper, please visit: www.ourinternet.org/#publications. For more information on the Global Commission on Internet Governance, including its twenty-nine commissioners and thirty-six research advisers, please visit: www.ourinternet.org. Follow the commission on Twitter @OurInternetGCIG.
ABOUT THE AUTHOR:
Sir David Omand was the first UK security and intelligence coordinator from 2002 to 2005 as permanent secretary in the Cabinet Office. Previously, he was permanent secretary of the UK Home Office and director of Government Communications Headquarters (the UK signals intelligence and cyber-security agency). He has a degree in mathematics and theoretical physics and a master’s in economics. He is a fellow of Corpus Christi College Cambridge and is senior independent director of Babcock International Group PLC. His book Securing the State is published by Hurst (United Kingdom) and Oxford University Press (United States).
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