Discussion
Integrating cross-sectoral and transnational perspectives is vital when discussing intelligence in Europe (we make the case for why we believe that in our mission statement). In order to facilitate a conversation in that spirit, this section curates contributions as responses to key discussion questions. That means that experts from a diverse array of backgrounds are invited to comment on the same discussion question for any given topic so as to emulate a conversation that is both issue-driven and heterogeneous.
Discussion Prompt: Which of the many deficits should German legislators tackle in the pending reform to ensure the effective implementation of human rights as well as the principles of the rule of law and democracy?
The current German legal framework for intelligence collection and its democratic governance is beset by a wide range of shortcomings. In partial recognition of its unfinished business, the German government is currently planning a major reform of the country’s legal framework for intelligence. Possible amendments include plans laid down in the coalition agreement such as a comprehensive surveillance impact and effectiveness assessment, the independent revision and evaluation of security laws, and the strengthening of parliamentary control over all federal intelligence activities. The government also needs to address and overcome grave deficits in current intelligence legislation, notably the lack of adequate safeguards and prior authorisation for several intelligence collection methods. This urgent task results from a recent judgment of the Constitutional Court on Bavarian intelligence legislation with nationwide significance.
The ministries contributing to the departmental coordination of the pending reform have agreed on a rough roadmap. However, important steps have not yet been taken, and diverging interests and objectives are influencing the negotiation process. Key reform plans of the coalition government could be toned down or even abandoned as a result. Legislators will soon bear the responsibility for critically examining and, where necessary, altering the draft legislation. They will have the opportunity to substantially improve the protection of fundamental and human rights. To this end, central standards of German constitutional and European law must now be cemented in the national legal framework governing the use and control of intelligence. Furthermore, it ought to be ensured that such fundamental principles of the rule of law and democracy are adhered to in actual practice.
This discussion panel highlights pressing issues that lawmakers should address when debating the next iteration of German intelligence reform.
For those interested in further in-depth analyses on this topic, please refer to our corresponding website: www.nachrichtendienstreform-2024.de
Discussion Prompt: The Dutch Temporary Cyber Act: Necessary measure or disproportionate expansion of power?
The Dutch intelligence and security agencies claim to lack the ability for an appropriate use of capabilities to perform the needed research to gain sufficient insight in intentions, capacity and next steps of foreign actors with an offensive cyber agenda against the Netherlands or Dutch interests. Main problems that are named are a lack of speed, argued to lie in the oversight system, and the “as targeted as possible” criterion in cable interception. A new proposal for a Temporary Act should address this problem as an urgent measure during a new reform of the main intelligence Act. Experts have different views on the legislative process as well as the content of the Act. Opinions differ whether the proposed measures are necessary, proportionate, adequate/efficient, and whether they would hold in the views of the European Courts.
As part of the consideration of the bill in the Dutch Parliament, several experts gave their views in a hearing. Interestingly, the different perspectives led to very diverse positions. About:intel asked them to write a contribution.
Discussion Prompt: Are civil liberties and democratic accountability sufficiently incorporated into the priorities of surveillance research programs?
Outputs of science and innovation policies are bound to profoundly affect our societies. This is particularly true of surveillance technologies, which can have an adverse impact on citizens’ rights and freedoms. Yet, it is often only at a later stage — when these technologies are market-ready — that any meaningful public debate actually takes place.
Think of automated video-surveillance and applications like “facial recognition” for instance: the technology is now being rolled-out and is stirring controversy in many European countries, but for years such technologies have been developed and tested by public and private organisations in the context of publicly-funded research projects. How, and by whom, are such research agendas decided upon? On what basis and according to which priorities? Are fundamental rights aspects actually taken into account by the consortia researching surveillance technologies, and if so, how exactly?
These questions appear all the more pressing considering the European Union’s commitment to the research and development (R&D) of surveillance technology has risen steadily in the context of the Horizon 2020 research program, which represents 50% of the overall public funding for security research in the EU. Overall, EU funding of security-related technologies more than doubled in recent years, from about 3.8 billion euros for the 2007-2013 budget cycle to 8 billion euros for 2014-2020. As for the 2021-2027 period, recent budget discussions secured a 30% increase for current research and innovation programmes.
In view of the fast-paced growth of public R&D programmes for surveillance and security-related technologies, and given the many pressing questions regarding potential right infringements of such research products, what should be done to ensure proper democratic legitimacy of future security research programs? What oversight mechanisms need to be in place to ensure that research in surveillance technologies can be reconciled with fundamental rights?
BND Reform 2.0
Discussion Prompt: To what extent does Germany’s new BND draft bill provide a rights-based and modern framework for foreign intelligence?
In May 2020, the German Constitutional Court ruled that key provisions in the current legal framework on the German foreign intelligence service (BND Act) are unconstitutional and that the Bundestag has until December 2021 to rectify a long list of deficits. The basic premise of the Court’s judgement is that the right to private communication and the right to press freedom under Germany’s Basic Law are rights against state interference that ought to extend to foreigners in other countries, too. In its new foreign intelligence bill, German state authority must honor these rights not just with respect to its own citizens and residents but also with regard to non-nationals the world over.
Drafting a new legal framework for Germany’s foreign intelligence collection requires a substantial overhaul of the provisions on the surveillance of foreign telecommunications, on the sharing of intelligence thus obtained with other bodies, and on the cooperation with foreign intelligence services as well as the design of effective judicial and administrative oversight. Many legal, technical and political decisions that now need to be made are open questions in other countries, too. This concerns, for example, the mandate for bulk collection, oversight requirements, the rights and protections afforded to non-nationals, or special protections for journalists.
Does this BND reform 2.0 manage to protect both fundamental rights and security? And will it therefore see Germany enter the small club of liberal democracies paving the way for better rights-based intelligence conduct in the world or will it only be a matter of time before this reform, like its predecessor, will be squashed in court? With much at stake, the variety of perspectives featured in this panel is intended to provide answers to these questions and help both the members of the Bundestag and the general European public to form their opinion on a truly consequential piece of security legislation.
*If you wish to read an English language version of the draft law, please see the translation provided here.
– Contributions will be added on a rolling basis. More voices coming soon. –
Discussion Prompt: Should we ban the use of automated video-surveillance?
Facial recognition technology has captured both the imagination and the concern of many. But it is only one form of biometric surveillance, which itself is merely one application of automated video-surveillance. The field of video analytics is vast, and can include nearly every type of action and occurrence imaginable, even human sentiment. The pair of human eyes once tasked with passively watching CCTV footage has been replaced with artificial intelligence programmes. Law enforcement and other security agencies, which increasingly resort to automated video-surveillance, tout the technology’s aid in reducing crime and increasing public safety, but critics have long raised the alarm. They may highlight its supply-driven market background or point to all the problems AI itself is fraught with — racial biases, false positives, and algorithmic inscrutability, among others. Fundamentally, they worry that full-scale automated video-surveillance in public spaces will create a point of no return, after which we will be unable to live our lives anonymously and assert our essential civil liberties, such as freedom of assembly or freedom of speech, with dire consequences for democracy. With the spotlight usually being on how to regulate technology after it has already been introduced, we want to take a step back and ask: Do we even want to allow this kind of technology? How can we enforce our democratic will in the face of ever-faster technological change?
Discussion Prompt: What existing national security legislation, new bulk analysis efforts, and emergency measures have different states deployed to curb the spread of Covid-19?
We are facing a global health emergency. Governments around the world have responded by making use of existing contingency plans in their public health and emergency laws but also turned to new measures to slow the spread of the pandemic. What changes to the legal framework, policy, and use of surveillance has Covid-19 triggered across different states? Are these changes necessary and what can be said about their democratic legitimacy? What legal and technical safeguards are being addressed or should become the norm to render surveillance-based government responses to the health crisis proportionate?
Discussion Prompt: When, if ever, is predictive policing effective, fair, and legitimate? What is the role of data reliability in this?
Police departments worldwide are increasingly exploring predictive policing tools. Whether this is because they are trying to harness new technology to provide a 21st century police service, trying to cut costs and do more with less, or perhaps merely jump on the shiny tech bandwagon — algorithmic analysis tools are proliferating. While they vary in method, many seek to anticipate future crimes (types, geographic areas, and time windows) and identify possible victims and offenders. Despite contested evidence for the effectiveness of the approach, more and more police departments around Europe are adopting predictive policing tools, often in the absence of clear regulation on the use of data analytics in our criminal justice systems. While proponents claim algorithmic tools eliminate human bias, voices flagging the self-fulfilling nature of using historical crime data, which can lead to over-policing and profiling of racial minorities, are growing louder. How these tools sit with the right to presumption of innocence and civil liberties is yet to be determined.
Discussion Prompt: To what extent can and should surveillance technology be subject to export control?
For tyrants, and those who would like to be one, digital technology has ushered in a new era of social and political control. Around the world, authoritarian regimes persecute journalists and dissidents and violate the rights of minorities with sophisticated surveillance tools, from government malware to facial recognition and from Stingrays to IMSI catchers. European countries, particularly the UK, Germany, and France, are among the key suppliers of these technologies. Despite the implementation of stricter export controls for European companies since 2011 — after the Arab Spring exposed the degree to which European technology aided the crackdown of protests — much government oppression continues to be “Made in the EU”. With global trade in AI-enabled surveillance flourishing, what are the regulatory options for ensuring that surveillance technology produced in Europe will not be used to assail fundamental human rights elsewhere? And what are the practical obstacles to their effective implementation and enforcement?
Discussion Prompt: Is productive engagement on intelligence law, policy and oversight possible between the secret and civilian world and what can be gained from it? Reflections on best practice, lessons learned, and plans for the future.
The issue of intelligence in public debate has arrived at a noteworthy conundrum: on the one hand, we are experiencing a normalisation of intelligence politics — the Snowden revelations and the subsequent response by parliaments, governments, and agencies have had their share in that — on the other hand, many countries are still treating intelligence politics as a special, if not unique, realm of policy, one that necessitates secrecy by default. This prerogative leads to the exclusion of large swaths of institutionalised public life (from civil society to business, and from academia to tech industry) from the political and legislative process around intelligence. Weighing the need for national security and civil liberties should not be left to one sector alone. Rather than preclude the input of different stakeholders, we posit that sound intelligence policy and practice requires a plurality of cross-disciplinary inputs and partnerships. This discussion question seeks to investigate the practical possibility and the potential of reaching across the ‘aisle of secrecy’ by hearing from experts who have done that.
Discussion Prompt: Will AI solve the “information overload“ challenge for intelligence agencies?
In a 1993 white paper, the US Scientific and Technical Intelligence Committee (STIC) spelled out the need for analytical “paradigm shifts” to cope with the rapidly expanding “global production of information”, widely dubbed ‘the information overload’. 25 years later, self-learning algorithms, commonly referred to as Artificial Intelligence, are often heralded as that very technological revolution, suited to provide for either a “new kind of security” or a new age of government surveillance, or both. Against this backdrop, we try to understand the current and projected role of artificial intelligence in the work of intelligence agencies. Is it the technological breakthrough agencies have been seeking? Has it propelled us into a new intelligence governance dimension, where we require specific and updated regulation and control? Or is it a continuation of technology support systems which simply aid decision makers.
Discussion Prompt: Why don’t intelligence oversight bodies cooperate as well as intelligence agencies? And is there reason to believe that could be changing?
A series of terror attacks, most notably 9/11 and the 2015 Paris attacks, has led to an ever-closer cooperation among European intelligence agencies. The bodies tasked with monitoring these agencies, however, rarely engage in direct cooperation, let alone conduct joint investigations into intelligence cooperation. This discrepancy engenders an oversight gap, whereby intelligence data and activity eludes nationally mandated review as it crosses national borders. Simply speaking, transnational intelligence practice and national oversight have historically been an accountability mismatch, which in turn undermines the democratic legitimacy of intelligence agencies and their work. This discussion question interrogates why oversight bodies don’t have similarly extensive international relationships and what the likely trajectory is for intelligence oversight in an increasingly transnational security context.
