Thursday, 12 June 2014

The case for publishing (redacted) surveillance warrants

The Home Secretary was asked yesterday if she would consider publishing anonymised versions of the applications that are prepared for surveillance warrants, to reassure the public that appropriate checks and balances were in place.

Apparently, there was a sharp intake of breath from the intelligence experts in the audience, and Mrs May preferred to leave a question mark over that particular issue.

If I were Home Secretary, I would welcome such a suggestion, and I would actually apologise for not having implemented such an excellent suggestion sooner.

In a previous working life, I was the responsible officer for T-Mobile's law enforcement team. You would expect a company the size of T-Mobile to receive lawful interception warrants, so I don’t think I am guilty of breaching the Official Secrets Act by admitting that, yes, in the past, I have seen some.

The usual practice at T-Mobile would be for the company to receive advance notice of an application for an interception warrant and then, before the interception actually commenced, it would receive verbal confirmation that the relevant minister had signed the warrant. Shortly afterwards, the warrant would be delivered to the company.

Once the interception had ceased, the warrant would be returned to the sender.

Very occasionally, there might be a problem with the paperwork that the company received. The company would expect to receive just the interception warrant. It would not expect to receive any of the supporting documentation, such as the application form containing the extremely sensitive material that was presented to the minister to support the application for the warrant. This paperwork should have been separated from the warrant before it was sent. So should any extra paperwork arrive, it was immediately returned. If my curiosity got the better of me, I might quickly read some of it.

Of course I’ve forgotten the identities of the targets – I often ignored that part of the application form anyway, as I was really worried that it would be hard for me to make myself forget details I didn't need to know in the first place. The less I knew about a particular target, the less I needed to forget. Other members of my team needed to read that part of the document – and act on it. But not me.

What did impress me, and what has stayed in my mind, during these intervening years, is an appreciation of the care and attention to detail that the author of each lawful interception application form was required to present to the minister. The paperwork (which might relate, say, to a request to intercept a suspected drug dealer's communications) could run to over 20 pages in length, summarising the latest progress of the investigation. Substantial chunks of prose would outline the potential risks, in terms of necessity and proportionality, of intercepting people who were unconnected with the target. Other, equally substantial, chunks of prose would outline why it was unlikely that operationally vital intelligence could not be obtained by using less intrusive techniques.

I’m sure that most privacy wonks would be mightily impressed if they were ever allowed to read what I was able to read.

There is a good news story that the Home Office must not let the “intelligence experts” veto. It would be a relatively easy exercise to anonymise some of the application forms to the extent that (probably) only teh relevant drug dealer might recognise that the application related to them. Samples of suitably redacted application forms could be published by the Interception of Communications Commissioner, once he was satisfied that publication would not prejudice the course of justice.

While a few spooks might mutter how disgraceful it is to give any part of the surveillance game away, I would reply that even the spooks have an obligation to assure the public – their paymasters – that high standards of probity are always maintained. 

If the Home Secretary were bolder, perhaps she might allow Chanel 4 to commission a new TV series on surveillance. After all, if consenting parents are happy to feature on “One Born Every Minute”, leaving nothing to the imagination during the birth of their children, perhaps new stars might emerge with the transmission of a series provisionally entitled “Can You Hear Me, Mother?”  – where the cameras would follow the working lives of a team of intrepid lawful interception analysts during their shift.

I'm sure that some TV cop would be happy to present the series for an extremely modest fee.


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