PUBLISHING THE SNOWDEN SECRETS The Guardian the government

PUBLISHING THE SNOWDEN SECRETS The Guardian, the government and the people Gavin Millar QC

See no evil, hear no evil, speak no evil “There is something in all you say. But if you really want my advice, then it is best not to inquire about this or speak over it, for it comes under the head of military preparedness, official secrets and so forth and so on. . ” Sergeant Major Brancovic, The Bridge over the Drina (Ivo Andric)

The largest programme of suspicionless surveillance in human history : Edward Snowden. . we began to publish stories after carefully assessing the risk of publication, and the importance of the public interest involved. Those editorial decisions involved. . . input from very experienced professionals. . . That was the case from the very beginning and continues to be the approach to this day : Glenn Greenwald’s evidence to the High Court in Miranda v Home Sec and another.

Verizon : 50 USC § 1861 - Access to certain business records foreign intelligence and international terrorism investigations The FBI. . . may make application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. . .

Verizon : Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Verizon Since government officials have repeatedly told the public and Congress that Patriot Act authorities are simply analogous to a grand jury subpoena, and that intelligence agencies do not collect information or dossiers on millions. . . of Americans, I think the executive branch has an obligation to explain. . . : Senator Ron Wyden (Dem: Oregon)

Prism There's been spying for years, there's been surveillance for years, and so forth, I'm not going to pass judgement on that, it's the nature of our society“ Eric Schmidt, Executive Chairman of Google, 2013

Prism : 50 USC § 1881 a - Procedures for targeting certain persons outside the United States other than United States persons. . . upon the issuance of an order. . . or a determination. . . the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information

Prism The U. S. government must provide clarity regarding these monstrous allegations of total monitoring of various telecommunications and Internet services. . . Statements from the U. S. government that the monitoring was not aimed at U. S. citizens but only against persons outside the United States do not reassure me at all. Peter Schaar, German Data Protection Commissioner

Prism It has been suggested GCHQ uses our partnership with the United States to get around UK law, obtaining information that they cannot legally obtain in the UK. . this accusation is baseless. . . data obtained by us from the US involving UK nationals is subject to proper UK statutory controls and safeguards, including the relevant sections of the Intelligence Services Act, the Human Rights Act and the Regulation of Investigatory Powers Act. William Hague in the House of Commons, 10. 6. 13

Tempora : RIPA s. 8 Contents of warrants 4) Subsections (1) and (2) shall not apply to an interception warrant if. . . (b) at the time of the issue of the warrant, a certificate applicable to the warrant has been issued by the Secretary of State certifying– (i) the descriptions of intercepted material the examination of which he considers necessary. . . (ii) that he considers the examination of material of those descriptions necessary. . .

. . . a particularly pointless piece of symbolism And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of interest to passing Chinese agents. “We can call off the black helicopters” joked one as we swept up. . . Alan Rusbridger 19. 8. 13

GCHQ: inside the top secret world of Britain’s biggest spy agency. . . Over the last five years, GCHQ’s access to “light” [Tempora data] [has] increased by 7, 000%. . . GCHQ is breaking new ground and in doing so, testing our systems and processes to the full. Our challenge is to achieve success against tomorrow’s demands starting from yesterday’s capability. . . A Senior GCHQ officer, August 2012

Miranda: Terrorism Act Sch 7 Port and Border Controls 2. — (1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b) [defining a terrorist]. . . (4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within s. 40(1)(b)

Backdoors or trapdoors These design changes make the systems exploitable through Sigint collection. . . with foreknowledge of the modification. To the consumer and other adversaries, however, the systems’ security remains intact. . . NSA 2013

A journalist’s duty My own view has almost always been that information which wants to get out will get out; our job is to receive it responsibly and to publish or not by our own unvarying news standards. . . Max Frankel Pulitzer Prize winning NYT journalist

Art 8 ECHR 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety. . . the economic well-being of the country, for the prevention of disorder or crime. . . or for the protection of the rights and freedoms of others.

An A 8 compliant interception regime Must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. Must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities Malone v UK [67] and [79]).

Privacy International’s Tempora challenge (IPT) The collection, search and storage of all communications data passing through very large numbers of fibre optic cables on a continuous basis comprises blanket surveillance. Such surveillance cannot be justified as a proportionate response to a legitimate aim. Bulk interception of communications and bulk inspection of such data is a disproportionate interference with the rights guaranteed by Article 8.

Oversight ? She did not strike me as somebody who was particularly concerned with civil liberties—quite the contrary. We were actually quite shocked by her attitude. So if democratic oversight is taking place under her lead, it doesn’t really reassure me. Sophia in‘t Veld MEP, Vice Chair of the European Parliament’s Committe on Civil Liberties, Justice and Home Affairs, on meeting Sen Diane Feinstein Chair of the Senate Intelligence Committee.

Oversight? The cabinet was told nothing about. . . Tempora or. . . Prism. . . I was also on the national security council, attended by ministers and the heads of the Secret and Security Service, GCHQ and the military. If anyone should have been briefed on Prism and Tempora, it should have been the NSC. Chris Huhne writing in the Guardian on 6. 10. 13

Art 10 ECHR 1. 2. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such. . . restrictions. . . as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime. . .

Official Secrets Act 1989 s. 6 Information entrusted in confidence to other States or international organisations. (2). . . the person into whose possession the information, document or article has come is guilty of an offence if he makes a damaging disclosure of it knowing, or having reasonable cause to believe, that it is such as is mentioned in subsection (1) above, that it has come into his possession as there mentioned and that its disclosure would be damaging.

A peculiarly passive, but typically British, reaction? . . . I have always believed that no one can reliably predict the consequences of publication. The Pentagon papers, contrary to Ellsberg’s wish, did not shorten the Vietnam war or stir significant additional protest. . . Max Frankel