Discussion Prompt:  Why don’t intelligence oversight bodies cooperate as well as intelligence agencies? And is there reason to believe that this could be changing?

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As intelligence agencies increasingly cooperate and share information, it would seem logical that oversight bodies do the same to ensure effective oversight of intelligence sharing. That is not the case, however. A lack of regulation, or rather tenuous regulation that, if present, tends to favour executive power over accountability, substantially weakens transnational oversight. Legislative reform is needed to ensure that intelligence cooperation is properly regulated and that oversight bodies have the mandate and capacity to effectively cooperate among each other to investigate intelligence practice in an increasingly international space.

Cooperation among intelligence agencies might still be shrouded in secrecy, but the voices in favour of it keep growing louder, particularly in light of the need to coordinate counter-terrorism activities across borders. The President of the European Commission put it in stark terms last September: “Terrorists know no borders. We cannot allow ourselves to become unwitting accomplices because of our inability to cooperate.” And several UN Security Council resolutions have emphasised the need for international cooperation in counter-terrorism.

Intelligence cooperation does not per se violate international human rights law. When done appropriately, the sharing of intelligence can enhance human rights protection by helping authorities identify and curtail threats to the security of its population. As the European Court of Human Rights stated in its recent judgment in Big Brother Watch v. UK, “due to the nature of global terrorism, and in particular the complexity of global terror networks, the Court accepts that taking such a stand — and thus preventing the perpetration of violent acts endangering the lives of innocent people — requires a flow of information between the security services of many countries in all parts of the world.”

But unregulated intelligence sharing does pose substantive risks to human rights and to the democratic rule of law. When governments share information in the absence of clear laws and robust independent oversight, they create a vastly powerful security mechanism burdened by little accountability and by which, intentionally or unintentionally, individual or group-based civil liberties might be rendered vulnerable. As the UN Special Rapporteur on counter-terrorism and human rights noted, “cooperation, whether in the area of judicial assistance or intelligence-sharing, is not a rights-free zone.” Yet, most governments around the world share information in an unregulated intelligence space

Lack of regulation impedes oversight

This lack of regulation significantly limits the capacity of oversight bodies to effectively monitor intelligence sharing and to collaborate on such monitoring. This cannot be emphasised enough: because intelligence cooperation is unregulated and intelligence sharing is often carried out in informal ways, oversight bodies have a weak mandate and face significant challenges in carrying out their functions.

In addition, states often impose additional constraints to cooperation: Firstly, national oversight mechanisms typically have remit only over the activities of their national intelligence agencies. Secondly, many intelligence cooperation arrangements prohibit the disclosure of information shared between agencies to third parties, which may include oversight mechanisms, without the prior consent of the state from which the information originated (“third party rule”). If oversight bodies must seek the consent of a foreign intelligence agency to access information, the efficacy and comprehensiveness of their work can be substantially compromised. As a matter of principle, requiring oversight bodies to seek such permission can also cripple their independence. And as a matter of practice, foreign partners are unlikely to consent to such a request.

The Council of Europe Commissioner for Human Rights has expressed concerns regarding the third party rule and called on the Council’s member states to “ensure that access to information by oversight bodies (…) not [be] restricted by or subject to the third party rule”.

Challenges to oversight collaboration

As logical as it would seem for intelligence oversight bodies to increasingly collaborate just as the intelligence agencies do, there are clear sensitivities about such collaboration, as noted in the UK’s Investigatory Powers Commissioner’s reply to Privacy International: “Cooperation between oversight bodies is something that I am committed to developing, however, it must be recognised that there are challenges due to the differing legislative regimes and issues around privacy and data sharing that will need to be explored.” (In September 2017, Privacy International, in partnership with national civil society organisations, wrote to oversight bodies in over 40 countries as part of a project to increase transparency around intelligence sharing. Full texts of the responses from oversight bodies in 20 countries, indicating their respective assessments of relevant domestic laws as well as their mandates and powers were published in April 2018.)

In October 2018 the oversight bodies from Belgium, Denmark, the Netherlands, Norway and Switzerland issued a joint statement elaborating on the challenges. They noted in particular:

  • The lack of specific legal bases for the oversight bodies to cooperate with each other across borders
  • The limits to effective oversight imposed by the application of the ‘third party rule’
  • The difficulties in assessing necessity and proportionality (as required under international human rights law) given that intelligence services are reticent to reveal their practices, and even more so when dealing with sharing among multiple intelligence agencies
  • The oversight gap created by different legal regimes regulating the authorisation and oversight of gathering intelligence about nationals and foreigners
  • The challenges to oversight when faced with informal means of intelligence sharing.

Reasons to be hopeful

Given these constraints, it is already positive that some oversight bodies are pursuing modalities of cooperation. The less controversial are in the form of exchanging views, such as sharing best practices, including through gatherings of intelligence oversight mechanisms at international or regional levels. For example, a Five Eyes Intelligence Oversight and Review Council has been established to discuss issues of mutual relevance and best practice.

Other promising initiatives aimed at supporting cooperation among intelligence oversight bodies have also offered opportunities for dialogue at the regional and international level, notably the European Intelligence Oversight Network, which brings together oversight bodies from different European countries. The UN Special Rapporteur on the right to privacy in the digital age, Professor Joseph Cannataci, has also convened an annual gathering of oversight bodies, the International Intelligence Oversight Forum, open also to civil society and other actors. His March 2019 report to the UN Human Rights Council contains recommendations which, if adopted, would facilitate cooperation and sharing among intelligence oversight bodies.

More challenging is the conduct of joint or coordinated investigations, such as those carried out by the Belgian, Danish, Dutch, Norwegian, and Swiss oversight bodies into the exchange of data on (alleged) jihadists, each from their own national context and within the framework of their own mandate. In her reply to Privacy International, Cheryl Gwyn, the New Zealand Inspector-General of Intelligence and Security (read her piece on public engagement here) also noted that she was “actively pursuing possibilities for carrying out parallel investigations with foreign oversight bodies to examine specified operational activities or, possibly, both or all ‘ends’ of a particular intelligence agency activity carried out across national borders. Any such investigations or joint projects should result in public reports.”

These examples are positive. They also point at the urgent need for legislative reform to ensure that intelligence cooperation is properly regulated and that oversight bodies have the mandate and capacity to effectively cooperate among each other to investigate intelligence practice. In meetings and correspondence with oversight bodies, I detected almost unanimous recognition of the challenges and, at the same time, of the necessity for more cooperation to ensure effective oversight of intelligence sharing across borders. Oversight bodies also recognize that laws must be in place to explicitly give them the authority to engage in such cooperation. I believe that civil society, independent experts, and researchers have a key role to play in creating and supporting the political momentum that is ultimately needed to achieve robust and internationalized intelligence oversight.