In this piece, Andrew Neal reflects on the recent US spying scandal, particularly in light of revelations that the British GCHQ was making use of this intelligence. This piece was originally published on securitypolitics on 11 June 2013.
The recent revelations about domestic surveillance in the US were controversial because the National Security Agency was secretly spying on the communications of American citizens. In the US, debates about intelligence have always hinged on a distinction between citizens and foreigners. The Foreign Intelligence Service Act has long made it perfectly acceptable for US agencies to spy on foreigners at home or abroad. These powers have been consistently approved and upheld by US courts.
In the UK, successive governments have tried to create a law to allow blanket communications surveillance. This would be the mass collection, retention and analysis of communications ‘metadata’; not the content of telephone calls and emails but connections, numbers, times, locations, call length, frequency and so on. This data could be used for sophisticated forms of social network analysis. Ad hoc groupings of libertarians in parliament, led by the Liberal Democrats, have successfully blocked the Communications and Data Bill or ‘Snoopers’ Charter’.
It now transpires that the UK intelligence agency GCHQ has been getting around the continuing lack of a legal basis for this kind of surveillance. It has been receiving the data it wants from the NSA in the US. This falls under a legal grey area. It seems that British data protection laws do not apply if the data of UK citizens is already in the US (e.g. Gmail, Dropbox, Facebook, Skype, Flikr, pretty much everything). This is a convenient way for a government to avoid the charge that it spies on its own citizens. Instead, another government spies on that population as foreigners, then hands the intelligence over.
Now, one of the uncertain issues in the Scottish independence debate is what kind of intelligence agencies a new Scotland would create. Deputy First Minister Nicola Sturgeon told the Foreign Affairs Committee that an independent Scotland would create its own domestic intelligence agency, but that the Scottish Government was taking advice on establishing a foreign intelligence service like MI6. Members of the intelligence community have said that Scotland would also need some kind of ‘mini-GCHQ’ to defend against cyber attacks. Whatever the decision, an independent Scotland would not have the resources to replicate the advanced communications intelligence facilities of GCHQ. It would also be starting from scratch and so take years to establish credible capabilities.
This raises some questions. If Scotland is not going to monitor domestic communications like the UK government wants to, then will this leave an unsurveilled utopia of personal freedom north of the border? Could a would-be terrorist simply move to from London to Gretna to avoid having his or her communications monitored, then plan the next attack? And given that UK communication systems (land lines, mobile networks, internet infrastructure) are completely integrated, how would an independent Scotland implement a different legal regime for data protection and surveillance, even if it wanted to?
Here is a modest proposal. The US-UK intelligence sharing relationship shows us the way. An independent Scotland could simply allow GCHQ to spy on its citizens’ communications, then share the intelligence with the Scottish Government. This way, GCHQ would be spying on foreigners, the Scottish government could legitimately say that it does not monitor its own citizens’ electronic activities, and the UK security services would avoid the terrifying Gretna scenario.
So here are two questions for First Minister’s Question Time at the Scottish parliament: “Would the First Minister allow UK intelligence agencies to spy on the citizens of an independent Scotland? And would the Scottish government make use of the resulting intelligence?