Does Government Spying Make Us Safer? Liberty v Secretary of State

A Decision of the United Kingdom’s Investigatory Powers Tribunal (“the Tribunal”) in Liberty v Secretary of State, [2015] UKIPTrib 13 77-H [Liberty], endorsed the importance of transparency in the surveillance practices of British security agencies such as the Security Service (“MI5”), the Secret Intelligence Service (“MI6”), and the Government Communications Headquarters (“GCHQ”). The decision emphasized meaningful procedural protections for citizens as a necessary counterbalance to intrusive state powers. The Tribunal’s rationale marks an important contrast to the approach adopted by Canadian policymakers in striking a balance between state security and civil liberties in a time of expanding state surveillance powers.

The Investigatory Powers Tribunal

In the United Kingdom, the Tribunal acts as an independent judicial body to review public complaints against British security agencies that carry out surveillance. Where different security agencies, including MI5, MI6, and the GCHQ (collectively, “the security agencies”), were previously overseen by separate administrative bodies, the Tribunal has consolidated their oversight since 2000. Since consolidation, the Tribunal has become more accessible to the public and has investigated many public complaints.  In the course of investigating complaints, the Tribunal may obtain information from the security agencies without any obligation to disclose this information or publish its decisions as a matter of freedom of information.

The Complaint in Liberty

In Liberty, the Tribunal addressed complaints against the secret sharing of intercepted online communications between the American National Security Agency (“NSA”) and the security agencies. Various civil and human rights organizations, including Privacy International, Liberty, and Amnesty International, alleged that these practices had breached citizens’ basic rights to privacy and freedom of speech, as protected under the European Convention of Human Rights.

As respondents, the security agencies neither confirmed nor denied the existence of such surveillance and information-sharing practices. The Tribunal therefore proceeded on the basis of public disclosures made by former NSA operative Edward Snowden, alongside the American Government’s avowal of both the “PRISM” and “Upstream” programs described in Snowden’s accounts. Both programs are used by the NSA to collect online communications from within and outside of the United States.

The Tribunal’s December 5 Decision

In its December 5 decision, [2014] UKIPTrib 13_77-H, the Tribunal upheld the legality of the intelligence-sharing in question and adjudged the crux of the complaint in favour of the security agencies. This decision was largely based upon the safeguards that were applied to these practices and disclosed in detail during the course of hearings into the complaint.

The security agencies’ safeguards included oversight by the Secretary of State and requirements for intercepted data to be securely stored and destroyed when no longer needed. Careful documentation practices and regular review of interception and data storage protocols were also detailed during the hearings.

Having further determined that these safeguards required public disclosure, the Tribunal took the rare step of making its judgment public. In doing so, the Tribunal opened the question of whether these surveillance practices had complied with human rights laws prior to the public disclosure of their safeguards.

The Tribunal’s February 6 Decision

Following its December decision, the Tribunal heard submissions from counsel on all sides and determined that British surveillance practices failed to comply with human rights law prior to the public disclosure of safeguards involved in these practices.

In another publicly released judgment, the Tribunal agreed with complainants’ submissions that citizens were only granted meaningful procedural protections on being made aware of the details of security agencies’ legal framework and accountability practices. Citizens first came to know of these details through the public release of the disclosures contained December decision.

Because the December decision had effectively served to render these surveillance practices compliant, the Tribunal gave no remedy beyond the declaration of the prior breach of human rights law.

The Importance of Oversight

The decision in Liberty stands for a proportionate approach to regulating state surveillance powers, making it clear that more intrusive practices must be counterbalanced by enhanced procedural protections for citizens who may be affected by those practices.

The Tribunal’s ruling also affirms the important role that the independent judicial body plays in preserving this balance.  The transparent disclosure of safeguards and legal frameworks by security agencies can only translate into meaningful procedural protections where citizens have a mechanism such as the Tribunal to hold these agencies to account.

Significance for the Canadian Policy Landscape

In Canada, the bulk of domestic and foreign security intelligence work falls within the jurisdiction of the Canadian Security Intelligence Service (“CSIS”) while the bulk of work involving the interception of communications (signals intelligence) falls into the jurisdiction of Communications Security Establishment Canada (“CSEC”). The growing reach of modern online surveillance and Canada’s signals intelligence partnerships with both the United Kingdom and the United States under the “five eyes” agreement has ignited growing concerns about oversight and transparency, particularly with respect to the activities of CSEC.

The Liberty decision, in terms of both its outcome and the investigative tribunal mechanism it arose from, sets out some important points for Canadian policymakers and citizens to consider in striking a balance between the secrecy of surveillance and the liberty of citizens in the context of modern intelligence-gathering practices.

1. Procedural Protection Through Complaints Investigation

On the reasoning of the United Kingdom’s Tribunal in Liberty, citizens’ access to a complaints mechanism is key to offering meaningful procedural protections that counterbalance intrusions upon civil liberties.

In Canada, CSEC is overseen by the Communications Security Establishment Commissioner (“CSE Commissioner”). Whereas the United Kingdom’s Tribunal is a judicial body that operates independently from the government, the CSE Commissioner is a single individual who reports directly to the Minister of National Defence.

Although the CSE Commissioner receives complaints concerning CSEC’s surveillance practices, such complaints are rarely investigated. The two most recent annual reports issued by the CSE Commissioner each devoted a single paragraph to complaints from the public and concluded that “no complaints about CSEC activities warranted investigation.”

2. Public Accessibility Through Consolidated Oversight

The Tribunal was established in 2000 to oversee all of the United Kingdom’s security agencies, thus providing citizens a single point of contact for addressing complaints arising from state surveillance.

In Canada, no single regulatory body provides oversight over the surveillance activities of all major security agencies. While CSEC’s activities are solely overseen by the CSE Commissioner, the activities of CSIS are subject to scrutiny by the Security Intelligence Review Committee (“the Committee”).

Unlike the CSE Commissioner, the Committee is an independent reviewing body with broad powers to examine classified materials and investigate complaints against CSIS. As its most recent Annual Report illustrates, the Committee has undertaken numerous investigations of complaints and CSIS has responded to recommendations arising from these investigations.

In its 2012-2013 Annual Report, the Committee brought up concerns over “challenges” to co-operation between CSEC and CSIC, noting that “gaps in understanding” between the two agencies had “resulted in instances where CSIS policies or procedures were not followed.” Despite recommendations to expand the scope of the Commission’s oversight, a recent editorial by former Commission member Bob Rae suggests that such change is not forthcoming.

3. A Proportionate Expansion of Surveillance Powers

The decision in Liberty turns on the need for protective oversight mechanisms to factor into expansions of state surveillance powers.

Recent developments in Canada’s House of Commons have seen a one-sided advancement of Bills intended to expand the surveillance powers of security agencies like CSEC with little consideration given to proportionate enhancements in oversight and accountability mechanisms.

Proposed measures to enhance oversight have largely arisen in Private Member’s Bills that subsequently met with little support from Parliament. Private Member’s Bill C-622, the CSEC Accountability and Transparency Act, received first reading in Parliament in June 2014 but was defeated at second reading in November 2014. That Bill entailed provisions to establish court oversight over CSEC’s surveillance activities alongside a Parliamentary committee to review and oversee CSEC. Similarly, Private Member’s Bill C-551 proposed to create a committee to oversee the activities of all of Canada’s national security agencies. That bill has not been considered since its first reading before a chamber of 16 sitting members in late 2013.

At the same time, House Government Bills have proposed expansions of surveillance powers without matching enhancements in oversight. Bill C-44, which broadened the powers of CSIS to carry out foreign surveillance, was introduced in October 2014 and proceeded to first and second Senate readings in February 2015. The House Government’s Anti-Terrorism Act, Bill C-51, received first reading late in January 2015 and proposes to broaden the surveillance powers of agencies like CSEC. In particular, that Bill’s proposed Security of Canada Information Sharing Act would enable security agencies to effectively collect individuals’ information via numerous government institutions including the Financial Transactions and Reports Analysis Centre of Canada and the Public Health Agency of Canada.

A Stark Contrast

In a time when individuals’ lives are increasingly entangled in online technologies and state surveillance powers are expanding, the Tribunal’s decision in Liberty offers a contrast to Canada’s approach to balancing state security against civil liberties.

In the United Kingdom, an accessible judicial tribunal has served to establish procedural protections as a counterbalance to state surveillance powers. In Canada, the expansion of CSEC’s powers without proportionate increases in oversight or procedural protections seems grounded in the assumption that most Canadians are willing to pay a cost in privacy in order to feel secure.

The correctness of this assumption will surely be tested in the coming months as the Government’s Anti-Terrorism Act is subjected to scrutiny before one of the last true public oversight mechanisms that these powers will face – the court of public opinion.