As more alarming details emerged of GCHQ’s mass capture of data, however, some stirred and opened their eyes. They began to wonder if the system that was supposed to oversee the UK’s spy agencies might be in need of reform. The system wasn’t working. The former cabinet minister Chris Huhne revealed that the cabinet hadn’t been told about TEMPORA, which was tested in 2008 and fully implemented in 2011. Huhne sat in on the National Security Council. But even he and other members were in the dark. So who signed off on it?
Apparently, the spy agencies had briefed no politician other than foreign secretary William Hague about their new, aggressive powers. They effectively misled a parliamentary committee that was busy scrutinising the government’s communications data bill. The Home Office proposed it. The bill would have allowed the police, the security services and other national agencies to get access to all British metadata and emails on a massive scale. And the companies would have to keep data available for their trawling for 12 months. The bill was killed off in spring 2013 following a revolt by Nick Clegg, the Liberal Democrat leader and David Cameron’s coalition partner.
The political wrangling over the bill – dubbed the snoopers’ charter – was largely a sham exercise, it now emerged. Secretly, GCHQ was already doing a version of what the bill envisaged. The agency had kept quiet. A joint memo from MI5, MI6 and GCHQ made no mention of mass data collection. Legislators felt duped.
‘I think we would have regarded this as highly, highly relevant,’ the Tory peer Lord Blencathra – David Maclean when he was an MP – said. He added: ‘Some people were very economical with the actualité.’
With a few exceptions, the opposition Labour party was surprisingly silent on the issue. The Labour leader Ed Miliband said nothing of substance. Labour was in government when GCHQ trialled TEMPORA. Miliband’s brother David was foreign secretary between June 2007 and May 2010 under both Tony Blair and Gordon Brown. According to the documents, David Miliband signed the secret certificates in 2009 giving GCHQ legal cover for their bulk fibre-optic cable hacking.
Another watchdog that failed to bark, or even growl, was the Commons intelligence and security committee (ISC), the parliamentary body that oversees the UK’s three spy agencies. Its chair, Sir Malcom Rifkind, hadn’t heard the name TEMPORA before the Snowden revelations – though he does maintain he knew of GCHQ’s broad surveillance powers. He also sniffs at disclosures of cable-tapping, and says this practice has gone on since the second world war.
Rifkind personifies the problem with the ISC: that it is a tame creature of the executive, and not the public. Rifkind is a former Conservative party foreign secretary and defence minister. When in government he received briefs from MI6, the agency he is now supposed to drag to account. The prime minister hand-picked the ISC’s members, vetting anyone likely to cause trouble. In the words of Huhne, ‘All its MPs are paid-up members of the security establishment.’
From the outside the ISC looks weak, too close to government, and reluctant to grill Britain’s securocrats. It has a small team of part-time staff and only nine cross-party members. This lack of clout raises the question of how it can provide credible oversight. (The three agencies have a £2 billion budget and 10,000-plus staff.) Rifkind shrugs this off. He says the ISC got new powers in early 2013, reports to parliament, and can now force the spooks to hand over material. Its budget also went up from £700,000 to £1.3 million, he says.
Arguably, the ISC’s biggest weakness is that its members are not… well, getting any younger. Most are in the twilight of their political careers. Like Dianne Feinstein, the 80-year-old chair of the Senate intelligence committee, Rifkind isn’t exactly a child of the internet age. As supposed regulators, can they really decipher highly complex and technical documents? Rusbridger cites the example of a very senior member of the British cabinet who had followed the Snowden stories only hazily and whose main experience of intelligence seemed to date back to the 1970s. ‘The trouble with MPs,’ this senior politician admitted, ‘is most of us don’t really understand the internet.’
In the Snowden files, GCHQ types boast of Britain’s flexible surveillance laws and comparatively weak regulatory regime – a ‘selling point’ for the Americans. (The other two advantages, according to a top-secret 2013 GCHQ document, are the UK’s ‘geography’ and ‘partnerships’.) The UK’s legal regime isn’t merely open to elastic interpretation. It was drafted in an analogue age, well before the explosion in technology and Big Data.
Under the outdated 2000 Regulation of Investigatory Powers Act (RIPA), the only legal control on what GCHQ can do with their vast pool of purloined data is a secret certificate, signed by the foreign secretary of the day. This lists the categories under which GCHQ can run searches of their own database. The NSA’s access to the British data, however, seems only limited by a ‘gentleman’s agreement’. And, as everyone knows, spies are not gentlemen.
In the year 2000, when RIPA was enacted, the massive global shift in telecommunications to a network of submarine fibre-optic cables was just starting to take place: but no ordinary civilian could have envisaged that the obscure RIPA regulations would allow GCHQ to break in to the swirling internet. Buffering, to provide a holding pool for the flowing streams of global data, wasn’t even possible until 2008–9. The idea of ‘collecting all of the signals all of the time’ would have seemed meaningless. Online communication and social media were in their infancy. As the technologies raced ahead, Britain’s spying law remained silent – and permissive.
The former director of public prosecutions, Ken Macdonald, says that these ‘blinding transformations’ have rendered RIPA and other intelligence legislation ‘anti-modern’.
As far as the spooks were concerned, however, no changes were wanted. David Cameron, William Hague and other government ministers asserted – somewhat childishly – that Britain had the best oversight regime in the world. They insisted there was nothing to debate. The only thing to talk about was the perfidious behaviour of the Guardian which – no concrete examples were ever given – had helped the bad guys.
One senior Whitehall figure called Snowden a ‘shit-head’. Dame Stella Rimington, the former head of MI5, branded him and Julian Assange ‘self-seeking twerps’. (Dame Stella was at a literary festival, promoting her new career as a writer of spy novels.) Snowden hadn’t acted out of patriotic reasons. He was a narcissist, a traitor and quite probably a Chinese agent, the officials fumed. A more subtle critique, expressed by one neo-con, said Snowden had acted from a sense of ‘millennial generational entitlement’.
In October 2013, Andrew Parker, MI5’s new boss, used his first public appearance to berate the media for publishing Snowden’s leaks. He didn’t need to mention the Guardian by name, but said the disclosures had handed ‘the advantage to terrorists… We are facing an international threat and GCHQ provides many of the intelligence leads upon which we rely. It causes enormous damage to make public the reach and limits of GCHQ techniques,’ he said. Another unhappy insider claimed ‘our targets are going dark’. He argued: ‘If you talk about your SIGINT capabilities you don’t have any SIGINT capabilities.’
Did these claims stack up?
Nobody was disputing that Britain and the US had plenty of enemies – terrorists, hostile states, organised criminals, rogue nuclear powers and foreign hackers intent on stealing secrets and making mischief. Nor did anybody object to individual targeting: this was what the spy agencies did. The problem was with strategic surveillance, the non-specific ingestion of billions of civilian communications, which Snowden laid bare.