Heather Brooke

Article: The Independent Surveillance Review Panel

July 20th, 2015 by heather

Mass surveillance: my part in the reform of GCHQ and UK intelligence gathering

The Guardian, Tuesday 14 July 2015

When I sat down with an ex-minister, former security chiefs, internet execs and others, today’s report on oversight of bulk data collection seemed a long way off

It was an unusual group. An investigative journalist, a moral philosopher, an internet entrepreneur, a cyber-law academic, a government historian, a computer scientist, a technology exec, a long-time cop, an ex-minister and three former heads of intelligence agencies. I wondered not just how but if we could agree on anything, let alone an entire set of recommendations to reform UK communications surveillance.

GCHQ

Yet we did. The Royal United Services Institute panel was set up by Nick Clegg, the then deputy prime minister, in response to revelations from the US whistleblower Edward Snowden about the scale of intrusion by US and British intelligence agencies into private lives. Our remit: to look at the legality, effectiveness and privacy implications of government surveillance; how it might be reformed; and how intelligence gathering could maintain its capabilities in the digital age.

It wasn’t easy and there were several times when I thought I would be writing a minority report with one or two of the panel members. But in the end we reached consensus: the report – published today – proposes that the security services continue with bulk collection of communications data, but with improved oversight and safeguards.

It wasn’t the ideal any of us individually might have chosen, but neither does it contain items any of us heartily oppose. For me there were four main victories and one loss. At what point is privacy engaged? For the security services and government it only becomes an issue at the point when a human looks at material. This is how vast quantities of data could be intercepted, stored and analysed by computer without much considering of privacy implications. For me privacy is engaged from the moment information is accessed and stored. Take the recent case of Amnesty International’s emails being found on GCHQ computers. Does it matter whether or not they were actually read by a person? The mere fact they were intercepted and stored by an intelligence agency is worrying enough.

In bulk collection the potential exists for anyone to be watched at any time. One of the red herrings put our way was that GCHQ does not conduct mass surveillance because it does not read everyone’s email. What was not mentioned is that GCHQ might intercept and store large quantities of it, as the Amnesty case demonstrates.

The point of Jeremy Bentham’s Panopticon wasn’t that everyone was actually watched at all times, it was that they could all potentially be watched. It is the possibility of omnipotent surveillance that acts as a chilling effect on any behaviour that potentially offends the state or the powers that be. For those who commit acts of journalism or legal advocacy that directly challenge state power, the risks in such a society are great.

This is why the report states that privacy is engaged at point of collection and recommends regular review of data retention policies by oversight bodies to ensure they remain proportionate.

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Article: England’s antiquated court system

July 20th, 2015 by heather

Gove is right: our antiquated court system produces two-nation justice

The Guardian, Friday 3 July 2015

As legal aid cuts force people to represent themselves, the costly, tortuous steps to access court records threaten access to justice. But it needn’t be this way – as the US shows

Justice must be seen to be done. It is a famous aphorism laid down in 1924 by Lord Hewart, the lord chief justice. But what happens when people put this principle to the test? When they actually go to court?

Royal Courts Of London

Michael Gove has given his own account of this exercise, narrating in his first speech as justice secretary his experience of today’s courts. He found “snowdrifts of paper held in place by delicate pink ribbons”, cases derailed by the late arrival of prisoners, broken video links or missing paperwork, a rape victim who had waited nearly two years for her case to be heard: overall, a “creaking, outdated system”.

You don’t have to be a justice secretary to witness the inefficiency and antiquated ways of the courts. In fact, as legal aid cuts bite, more people will have to represent themselves in courts where they encounter a system that is the very opposite of user friendly.

We pay a lot for this system, but many would argue it’s not enough. The Royal Courts of Justice may be as grand as palaces, but many others are dilapidated, their facilities in desperate need of modernisation. Investing in justice should be a point of principle but also a matter of practicality. When people see and experience justice being done efficiently and fairly, they are content to abide by the rule of law.

Gove was right when he identified a two-nation justice system. “While those with money can secure the finest legal provision in the world, the reality in our courts for many of our citizens is that the justice system is failing them, badly.”

Too often the public – the people funding the system and in whose name it operates – are treated as an afterthought at best, a nuisance at worst. It seems obvious that courts should be user friendly, directed to meet the needs of the general public, but too often they cater only to a cloistered elite.

Back in 2010 I did the same exercise as Gove. I was researching my book The Silent State and wanted to get some court documents. In America where I’ve worked, this process is usually simple: speak to the clerk, look through the files, make copies. These days many American courts have digitised indexes for searching, sometimes the records themselves are digitised. The US supreme court has an online docket search, digitised transcripts and audio files. You can access court records electronically in Australia, Canada, New Zealand and South Africa.

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A riposte to Russell Brand & a cheer for democracy

May 4th, 2015 by heather

There are only a few days before the General Election and I’m looking forward to casting my ballot. Democracy shouldn’t be taken for granted and the least any citizen can do is cast their vote. People have fought and died for such a freedom. As a woman, voting is something I certainly don’t take for granted as my gender has only been granted full citizenship in the last 1oo years.

Coincidentally, I just finished reading the wonderful Bernard Crick’s Essays on Citizenship for my PhD research. In the conclusion he reminds us that the Ancient Greeks believed in a version of democracy that challenges even the best of what is on offer today. We could do worse than use this 5th century oration by Pericles as political inspiration:

“Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. When it is a question of settling private disputes, everyone is equal before the law; when it is a question of putting one person before another in positions of public responsibility, what counts is not membership of a particular class, but the actual ability which the man possesses. No one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbor if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people’s feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. This is because it commands our deep respect…

Here each individual is interested not only in his own affairs but in the affairs of the state as well: even those who are mostly occupied with their own business are extremely well-informed on general politics — this is a peculiarity of ours: we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all. We Athenians, in our own persons, take our decisions on policy or submit them to proper discussions: for we do not think that there is an incompatibility between words and deeds; the worst thing is to rush into action before the consequences have been property debated…

[from Thucydides, History of the Peloponnesian War, translated by Rex Warner (New York: Penguin Classics, 1954)].

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CitizenFour portrays the haunting, human sides of state surveillance

October 23rd, 2014 by heather

Last night I saw the documentary CitizenFour by Laura Poitras. The film is subtle yet compelling. The opening sequence begins in a dark tunnel, lights passing overhead, a female voice – Poitras – reads an email she has received from a senior intelligence source who we learn later is Edward Snowden.

Her voice is soft and filled with the sadness knowledge brings. Faded fairytales and carefree ignorance replaced with realisation: of what our world actually is as opposed to what we thought or wanted it to be.

There is haunting footage of the physical manifestations of industrial surveillance. White birds fly over a bleak landscape of dirt and desert, bulldozers biting out chunks of earth, a blank cube takes shape. Poitras began filming at the start of the National Security Agency’s construction of a massive data center in Utah. Equally haunting are the white bubbles of listening dishes in the English countryside of Menwith Hill.

The first part of the film sets up her early knowledge of surveillance. She was put on a watch list by the American government after making a film about the Iraq War. She was stopped by US Border guards almost every time she entered her country. She was questioned. Her electronic items were seized. She had no idea why and no way to find out.

In his early emails to her, Snowden writes:

You ask why I picked you. I didn’t. You did. The surveillance you’ve experienced means you’ve been selected, a term which will mean more to you as you learn about how the modern sigint system works.
From now, know that every border you cross, every purchase you make, every call you dial, every cell phone tower you pass, friend you keep, article you write, site you visit, subject line you type, and packet you route, is in the hands of a system whose reach is unlimited but whose safeguards are not. Your victimization by the NSA system means that you are well aware of the threat that unrestricted, secret abilities pose for democracies. This is a story that few but you can tell.

Senior officials from US intelligence services give testimony under oath that there is no bulk interception or collection of Americans’ communications. There is a wonderful scene filmed in the 9th Circuit Court where digital rights lawyer Kevin Bankston argues that his clients (AT&T customers) have a right to bring a case against the NSA for its bulk interception of call data. The NSA lawyer tries to claim that because all calls are intercepted, the client does not have a valid case, and even if he did, an open courtroom is not the appropriate place to settle such complaints.

‘I’m not sure I see what role there is for the judiciary in your proposal,’ says a white-haired judge. ‘It sounds like you want us to simply get out of the way.’

Later revelations make it clear that’s exactly what is desired.

The heart of the film is Poitras’s meeting with Edward Snowden in the Mira Hotel in Hong Kong, June 2013. Here Glenn Greenwald comes to the fore as the reporter whose task it became to translate Snowden’s cache of data into stories for The Guardian newspaper. Greenwald has often struck me as more idealist than journalist, keen to ignore inconvenient truths if they get in the way of a political worldview (e.g. glossing over Julian Assange’s moral bankruptcy). But in the film the reporter comes across as thoughtful, smart, independent and brave. Exactly the sort of journalist you’d want fighting your corner.

I love the expression on Greenwald’s face when Snowden puts on his ‘mantel of power’ to hide his hands typing a password. It’s such a fantastic ‘we’re not in Kansas anymore’ moment. Then Snowden gets down to telling Greenwald about the various programs the NSA and Britain’s GCHQ have built to collect bulk communications data on citizens. The most invasive systems in the world are from Britain, Snowden says. ‘The NSA love Tempora,’ he says. It’s a “full take system”, unconstitutional in the US but the Brits can do it and hand over all the data to the Americans.

Once the news stories are published, the discussion in the hotel room turns to Snowden’s safety. He is adamant he doesn’t want to ’skulk in silence’ like other whistleblowers. He and Greenwald talk through the options of remaining anonymous or going public and they soon settle on going public as the best option. It’s the best way to give a big “fuck you” to the overbearing surveillance state.

Director Laura Poitras

It’s a powerful decision and you have to admire the audacity and bravery of it. After the circus side-shows of Assange, Snowden is the real deal. A man of conscience, acting on his values.

Poitras, too, made a brave and audacious decision to follow the story of state surveillance wherever it took her. In the words of her colleague Jeremy Scahill, “This boils down to the power of one woman’s camera against the entire national security state.”

Never let it be said one woman can’t make a difference.

The film opens Friday, October 24th 2014. Check the official CitizenFour website for screenings.

Tags: Edward Snowden, Laura Poitras, surveillance
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On Channel 4 News discussing UK’s emergency surveillance laws

July 30th, 2014 by heather

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Article: Review of The People’s Platform

June 30th, 2014 by heather

Astra Taylor’s book challenges utopian views about the democratizing effects of the internet.

Who Pays?
The Literary Review, June 2014
The People’s Platform: Taking Back Power and Culture in the Digital Age
By Astra Taylor (Fourth Estate 276pp £12.99)

It’s often interesting to transpose online behaviours into the real world. We’d think someone unhinged if they gave us a flyer with lots of flattering photographs of themselves and a list of their achievements. Yet this type of self-disclosure is normal thanks to social networking. Astra Taylor argues in The People’s Platform that this change of propriety isn’t so much because digital natives are more narcissistic than other generations but rather they are keenly aware that they are judged by their online selves – or ‘personal brands’ – in a way previous generations were not. The logic of the box office and bestseller has been applied to people, something Taylor laments: ‘To compete, we are told we have no choice but to participate in the culture of disclosure … We live in public in part because we believe we have to.’

Taylor makes a compelling argument that the beneficiaries of the ‘openness’ and ‘free culture’ movement that has so defined the web are not individuals but new media moguls and the advertisers they serve. She is keenly attuned to power, a rare quality among those who write about the internet, who tend to fall into two camps: proselytising techno-utopians or gimmicky contrarians. She argues that only humans can make human systems fairer, more equal and more diverse. Many of the thoughts outlined in the book are other people’s; the style is somewhere between an academic paper and an authorial remix. Many of the topics, too, have been covered before: the fate of journalism in the digital age, problems of copyright, privacy, data mining and the sustainability of art. Nonetheless Taylor deftly synthesises a mass of research and some reportage into a powerful rebuttal of the reigning ideologies of the internet.

Her own voice, interlaced lightly throughout the book, is at its most persuasive when she punctures the evangelism of free culture and openness, perhaps because Taylor herself is part of the creative class. An author and filmmaker, she has experienced at first hand the disastrous effects of openness on the livelihoods of those who produce culture, whether journalists, filmmakers, artists or musicians. She writes: ‘networked amateurism has been harnessed to corporate strategy … populist outrage has been yoked to free-market ideology by those who exploit cultural grievances to shore up their power and influence, directing public animus away from economic elites and toward cultural ones, away from plutocrats and toward professionals’. Technology has no morality but merely reflects the human values we require of it – so the current system reflects the values of those Silicon Valley businessmen who built and benefit most from it. Pushing past the clouds of airy democratising rhetoric, she examines the actual beneficiaries of an online advertising-funded system where creative work is given away by the public for free. It’s certainly not women, minorities or creatives. She quotes research showing that although 40 per cent of private businesses in the US are women-owned, only 8 per cent of venture-capital-backed tech start-ups are; and over 85 per cent of venture capitalists are men looking to invest in other men. Collaborative sites such as Reddit and Slashdot cater to users who are up to 90 per cent male, mostly young, wealthy and white. In fact, it becomes clear that the beneficiaries of the ‘new’ system look remarkably like those of the old one: well-off, well-educated white men, albeit with a few years shaved off.

‘If equity is something we value, we have to build it into the system,’ she writes, and that may mean, for example, taking action against men who threaten sexual violence against women online. Openness advocates may decry these attempts at regulation as authoritarian, but such criticism is naive as it ‘ignores the ways online spaces are already contrived with specific outcomes in mind: they are designed to serve Silicon Valley venture capitalists who want a return on investment, and advertisers, who want to sell us things’. She also points out the hypocrisy of free-culture cheerleaders such as Clay Shirky, Jeff Jarvis, Lawrence Lessig, Yochai Benkler and Don Tapscott – all white men of a certain age, working at elite universities and publishing their sermons of openness not for free but via traditional publishers. Leftists, young activists and free-marketers have been duped into promoting an ideology that serves to exploit the public’s work for private gain. She also argues, rightly, that the destruction of institutions such as newspapers and the criticism of professionals have played into the hands of the powerful. Institutions gave individuals power, security and an ability to take risks creatively. Now we are each of us on our own in a desperate lottery to gain attention in a commercial marketplace. Taylor is right to observe that criticising professionals or cultural elites is not striking a blow against the real powers. ‘When we uphold amateur creativity we are not necessarily resolving the deeper problems of entrenched privilege or the irresistible imperative of profit.’ Instead we are ushering in an age of less accountable journalism, less diversity and less risk-tolerant culture.

Astra Taylor is an author and documentary maker

So, while we take selfies, rant about the mainstream media and rage our twitchfork battles against lone individuals, the powers that be must be smiling to themselves as they quietly amass more power and money. Like children behind the Pied Piper, we’ve been all too eager to believe the fairy tale that we could get something for nothing, greedily using the ‘free’ services of Google, Facebook and Twitter. But we pay one way or another. We can pay directly through public subsidies such as the TV licence and taxes, or indirectly, our data sold, our public culture placed into private hands and our eyeballs targeted relentlessly with advertising. Even advertising isn’t ‘free’. As Taylor observes, ‘Advertising is, in essence, a private tax. Because promotional budgets are factored into the price we pay for goods, customers … end up footing the bill.’ And we’re talking about an enormous amount of money. The World Federation of Advertisers estimates that $700 billion per year is spent on advertising. ‘Surely all that money could be better spent producing something we actually care about?’ It is hard to disagree no matter how much of a free-market capitalist you are. It’s becoming increasingly clear that public goods require public payment. Among her solutions, Taylor proposes a Bill of Creative Rights that enshrines in law respect for labour. It’s a simple idea but one that needs to be re-emphasised to counter the free-culture zealots. That so many have fallen for the fairy tale shows how attractive it is – and why we need a young activist like Astra Taylor to lead the charge.

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Article: The Language of Secrets

February 20th, 2014 by heather

The Guardian
Saturday, January 18, 2014

We’ve not had the words to talk about our security services. Dishfire, Prism: we’re now learning some

What we have no words for we cannot discuss except crudely. The latest revelation about the security services brings a new word to our growing vocabulary: Dishfire. This week’s expose reveals the NSA collecting information from hundreds of millions of text messages a day. While messages from US phone numbers are removed from the database, GCHQ used it to search the metadata of “untargeted and unwarranted” communications belonging to British citizens.

We are not so much free citizens, innocent until proven guilty, but rather, as one of the Dishfire slides says, a “rich data set awaiting exploitation”. Prism, Tempora, Upstream, Bullrun – as our language grows we begin to speak with greater clarity. We move from James Bond fantasies to a greater understanding of what the intelligence services actually do in our name and with our money. Is indiscriminate surveillance the best way to protect democracy?

It is proving bad for business. Google, Apple, Facebook and Microsoft are trying to salvage their reputations by fighting against their own governments to protect customer data. Vodafone’s head of privacy spoke out this week, asking the governments of the 25 countries in which it operates for the right to publish the number of demands it receives for interceptions and customer data.

The company wants to follow its US counterparts AT&T and Verizon and publish a transparency report – but of the 25 markets, including India, Turkey and South Africa, where it operates, the UK is one of the most restrictive in terms of the public’s right to know.

The Regulation of Investigatory Powers (Ripa) Act 2000 states that: “Where an interception warrant has been issued or renewed, it shall be the duty of every person falling within subsection (2) to keep secret all the matters mentioned in subsection (3).” In plain English: those in receipt of a warrant must keep secret not only the contents of the warrant but its very existence. Neither Vodafone, nor any other phone company, can tell the public how many demands it receives. The penalty for disclosure is a prison term of up to five years.

Ripa was controversial when introduced, but it was an improvement on an earlier version, which required everyone to give up their passwords to police on pain of prison. That’s not to say the current law would be unwelcome in an oppressive society. It demands loyalty to the state, official secrecy without a public interest defence. Telecommunications companies are specifically named in the law to stay schtum. How can we have a meaningful conversation about wiretapping telephones when even the number of warrants is a state secret?

In the US, the public often learn about the FBI’s use of covert surveillance in court. Their methods and practices are examined as evidence brought to trial. Yesterday Barack Obama announced new curbs on his security agencies. He has made moves to respond, as Britain has not, to public disquiet.

In the UK, Ripa forbids the contents of interceptions from being used in court. That is problematic not only for justice but also for public accountability. Being tested in the courts is one of the ways we could learn how interception is employed. Is it tightly targeted against those whom the state has probable cause to suspect; or a dragnet based on little more than prejudice? We don’t know.

In George Orwell’s 1984, Newspeak meant the dictionaries became smaller not bigger. Fewer words meant fewer thoughts. What we have no language for we cannot discuss. For too long we’ve had no language to discuss the intelligence services. Now a dictionary is being written. It will be interesting to see what new words are added.

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Article: Anger at the Ballot Box

January 20th, 2014 by heather

The Guardian
Saturday, December 28, 2013

We live in the digital age but our politics is still analogue. No wonder voters are disillusioned

Politics matters. It always has and always will. It has always been a sham to say that voters not voting is due to disinterest or boredom. Yesterday’s Guardian/ICM poll explains exactly what lies behind voter “apathy”. It is disillusionment. It is disengagement. More than anything it is anger.

That is the single word that respondents cited as the best description of how they feel about politics. Twenty-five per cent said “bored”, 16% “respectful” and just 2% “inspired”. Former minister Chloe Smith was right to highlight the generation divide developing in British politics between young and old, but there is also a wide perception – 46% of poll respondents – who believe “MPs are just on the take”, largely as a result of the MPs’ expenses scandal. As the person who forced MPs to digitise and publish their expenses, I fear that disengagement will get worse until politicians change their actions and not just their rhetoric.

The expenses scandal did nothing more than allow the public to see reality as it is, not the fairytale that was previously presented. Yet political institutions have failed to address the fundamental problems: the system remains elitist, centralised and secretive. Power is still an alibi for avoiding responsibility while the “little people” bear the brunt of ever more intrusive surveillance, on-the-spot fines, increasing laws and regulations.

Expectations for democracy are rising, not just in Britain but globally. People in countries around the world are demanding to have a say in the way power is exercised. To do that they need access to information because the adage that information is power is true. The democratisation of information is the second stage of the Enlightenment. It’s what I call the Information Enlightenment.

Increasingly, there are many decisions that must now be made as a whole planet – about climate, about resources, about financial systems. To make these decisions we need information. Lots of it. We have a financial system that is global and the relations complex. It’s the same with the environment. It is no longer possible for any one person or even one organisation to process all this information, especially if they’re doing so in a top-down, centralised, secretive hierarchy, as Whitehall does, for instance.

So across many sectors we’re seeing a move towards fully connected systems that are open, collaborative and share information. This is how the best decisions are made. However, there is one sector that resolutely refuses to adapt. Politics – the system by which power is organised and exercised. We would expect people’s changing expectations of power to be reflected in our democracies. Instead we have an analogue political system trying to deny the realities of the digital age. Officials still take the view that they know what’s best for the rest.

Democracies should be made up of an informed electorate but currently we have neither enough information nor a meaningful vote. Voting for our MPs and councillors once every five years isn’t enough – and people know it. The act of voting has been rendered decorative rather than functional.

One of the biggest problems is the selection process. In the current setup, people gain political power not through merit but most often because they have sucked up to the right powerful people. Deference and patronage still rule the day: politicians and public servants gain and maintain their power not by doing their jobs well, or even competently, but by staying in favour with those who appoint them.

This has to change. It is the people who give public servants their power and so it must be to the people to whom public servants are accountable. Directly and forthrightly – with no middlemen in between.

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Manifesto for a New Democracy

September 5th, 2013 by heather

I wrote this several years ago. It’s the last chapter of The Silent State but it’s remarkably relevent right now. I’ll be adding the manifesto points in the coming days.

Manifesto for a New Democracy
Who am I to put forward a manifesto? I’m not elected. I’m not accountable to any regulator. I’m just a freelance trouble- maker, a rabble-rouser, a nosey parker prying into the silent state, a writer with a love of novels that remind us just how close we are to realising their dystopian fears: Orwell’s Nineteen Eighty-four, Chuck Palahniuk’s Fight Club, Margaret Atwood’s The Handmaid’s Tale. Tyler Durden asks in Fight Club to be delivered from Swedish furniture; I ask only:

Deliver us from officious officials.

Deliver us from prying bureaucrats who refuse to be named.

Deliver us from arrogant MPs who feel entitled to pilfer the public purse.

In a democracy, everyone has a right to propose ideas and it is in the roiling competition of these ideas that the best become policy and the weakest fall by the wayside. I am not a politician. I can’t compel people to give me money to implement my world view. I can’t imprison, fine or smear if you don’t buy my book or agree with me. I can’t siphon off public cash to create a huge PR industry to peddle my propaganda. I have no power other than the facts I’ve put forward in this book and the belief that if these stories are compelling then they might persuade a few people that our current system isn’t acceptable. Things need to change. Here’s how:

1) We should give no more power to the state without the state giving something to us.

Before the state can keep a database of our identities, aggregate our DNA or gather any other intrusive personal information, it should acknowledge that these measures do nothing whatsoever to empower ordinary citizens. We do not need millions of CCTV cameras turning citizens into suspects, nor every child entered into a database.

2) Name all public officials. These people work for us.

The state should publish its entire staff directory so we can see, by name, who is doing what at taxpayer expense.
Throughout this book I’ve used the real names of real people. If you’re going to tell a story then you need to focus on an individual with a name. It’s through individuals that we are best able to gain understanding. Yet individuality is precisely what is lacking from the state. A faceless wall of bureaucracy has been built up that alienates citizen from state. If public servants are truly working for the public then we need to know who they are. Wherever we see ‘facts’ followed by anonymous officials, we should be sceptical. There should be no power exercised without accountability, ending the domination of behind-the-scenes spin doctors and strategists.

This will benefit bureaucracies too. Throughout public services there are professionals with all sorts of expertise, all kinds of information. They have concerns about what works and what doesn’t and good ideas for improvement. But in the current anonymised, hierarchical structure these people have no voice. They are not listened to nor trusted and if they dare speak directly to the public they are penalised and often prosecuted. In the end the silent state hurts many for the benefit of an elite few.

More points to come…

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