Session de l'Assemblée parlementaire janvier 2012Parliamentary Assembly Session January 2012

Franseza Pardoe’s World Forum for Democracy report: ‘How to counter the tendency of intelligence services to become a state within the state?’

In the “age of terror”, how can democratic societies guarantee that intelligence services are held accountable?

This was the central theme discussed by Lab 1 of the World Forum for Democracy.

Edward Snowden is one of the most well-known whistle-blowers to have warned the world about the inefficiency, if not the inexistence of democratic oversight over intelligence services.

Safeguards on the latter’s activities are at best “vague and imprecise” and encroachment of all citizens’ rights to privacy has increased with time.

How then can democratic societies reconcile the work and scope of the intelligence services with the citizens’ right to privacy? Is it the technology that needs to changed, or the law? Is it both?

Matthew Rice, an advocacy officer at Privacy International, claimed during the lab discussion that the “only limitation is not technology but the law.”

In the UK, he claimed, there is a distinction in the way “external and internal communications” are spied on. Likewise, he says, in France, “foreign communications and domestic communications are scrutinised according to two separate standards.”

However, states are legally obliged to perform the same regulations for nationals as well as non-nationals. Hence, Rice affirms there is a need to “put legislation and power in place which treats people equally.”

Nils Muiznieks (photo), the Commissioner for Human Rights, stated that “since the European convention of Human Rights extends to non-nationals as well, the focus should also be on the existence of effective remedies for victims of extensive surveillance,” as more and more people are being targeted.

Furthermore, as security threats increase, intelligence services gain more and more resources. Legal oversight is thus necessary to understand what the services are doing with the additional
resources and to make sure human rights are respected.

Kaoru Obata, a professor of International Law, agreed that “the notion of effective remedy is key” and that “it could not be subject to any exceptions.”

However, he added that “the principle of non-discrimination is difficult to accommodate with security.”

Nils Muiznieks reminded the audience that it was “not just privacy rights which are at risks but a number of other rights as well,” such as freedom of expression, as many journalists cannot be sure anymore of the confidentiality of their sources, which creates a chilling effect – right to a fair trial etc.

He claimed that “if more resources are given to intelligence services, more need to be given to overseers as well.”

Rice added that alongside removing non-discrimination in domestic legislations, “any individual should be notified when [personal] communications have been intercepted.”

Rice argued that in countries such as Canada or France, where governments are trying to change the constitution or write new laws, “public consultations should be made on those changes so that the public can have their say.”

Furthermore, “complaint mechanisms as well as stronger oversight from commissioners should be implemented.”

For his part, Muiznieks pointed to the “risk of ethnic and religious profiling” as well as “the risk that intelligence agencies will have “carte blanche” to do what they want.”

He admitted to being “worried to see how countries after attacks are eager for quick fits” (eg : change in legislation) and claimed that it is “difficult to evaluate whether or not measures are proportionate.”

As an example, Muiznieks cited that “the EU has competence in data protection but it is compromised by national security exclusion which is a concept that is too flexible.”

The commissioner concluded by saying that “key players are private sectors, not just governments” and therefore there is a need to “bring companies on board as well.”

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