Terrorism, surveillance and intelligence: The next 5 years

Surveillance has become a dirty word since the Snowden leaks. Intelligence and security expert Dr Patrick Walsh says it’s simplistic to merely talk about a balance between privacy and security and argues that democratic states now need surveillance and intelligence more than ever.

9/11 became the watermark for a new kind of security environment – one no longer dominated by ‘fights’ between nations. The post-9/11 security environment is about threats from ‘global outlaws’ (terrorists, drug traffickers, arms traders, pirates, people smugglers) directed at the international community, regions, states, towns and cities. Arguably, the terrorism threat is the most dangerous of all because it is fueled by perverse ideologies – providing the catalyst for sustained physical harm on innocent people and the stability of fragile yet strategically significant states like Syria, Iraq and Libya to name a few.

We have seen the terrorism threat morph significantly since the early post 9/11 days. The threat from Al Qaeda central has been blunted, yet in its place we have regional franchises operating in Yemen, Somalia and North Africa. More recently, we have seen an even more brutal and primitive group – the Islamic State grow out of the current instability in Iraq and Syria. Islamic State is just the latest brand of radical Islamic terrorism and sadly won’t be the last. More groups will emerge – not to mention a steady flow of radicalized lone wolf individuals for a generation to come.

For the next five years (and beyond) how is the Australian community going to manage this? The truth is that we cannot detect, disrupt and prevent all terrorism attacks, but given the evolving nature of the threat it is clear that democratic states now need surveillance and intelligence more than ever. Adding to the general threat level is the fact that communication savvy terrorists know so much about the collection capabilities of our policing and intelligence agencies and are adapting their operational activity as a result.

Think back to Bin Laden when he found out in the late 1990s that the NSA was intercepting his satellite phone and stopped using it. So our policing and intelligence agencies need to also adapt their surveillance approaches as terrorists change their communication methodologies. Surveillance therefore in all its forms (because terrorist use a range of communication systems) such as  physical surveillance, covert searches, various kind of electronic and – yes – digital communications surveillance (email, internet and social media) must remain key defining principles of intelligence. If our policing and intelligence agencies are to know what is going on then surveillance is critical.

But surveillance has become a dirty word since the Snowden leaks. There are plenty of commentators who talk about ‘mass surveillance’, erroneously claiming that everyone is under inspection and some even saying we are living in a police state! I don’t know about you but when I think of a police state I think of North Korea, not Australia. The fact that we can have debates here and other countries such as the US on the role of enhanced surveillance and intelligence measures demonstrates the strength of our democracies, not their weakness. There are plenty of factual errors in the debate about surveillance and hopefully these will be corrected over time.

Part of the correction needs to be a more informed discussion about surveillance, intelligence and privacy than has emerged after Snowden. Portraying the debate merely as the need to find the balance between privacy and security is a bit simplistic as the impact of increased surveillance powers of police and intelligence agencies since 9/11 varies depending on the method of surveillance (wire taps, metadata, social media), the context in which it occurs (military, counterterrorism, counter-espionage, economics and trade) and who is targeted (terrorists, criminals, totalitarian states, friendly states, trade relations).

The method, context and target will throw up different privacy, security and policy dilemmas with different solutions. For example, very few would argue that it is not morally just (from a national security perspective) for intelligence agencies to intercept the communications say of a totalitarian state like North Korea – or the emails of a terrorist who wants to murder innocent people. Targeting both is legitimate given the harm both might deliver.

But the problem with many complex non-state threats like terrorism is that the threat often has a domestic and foreign dimension. This means that at times intelligence agencies may need to intercept the communications of Australian citizens as well as foreigners abroad engaged in terrorism. This domestic/foreign aspect of modern terrorism muddies the ethical and policy dilemmas of surveillance and intelligence collection. Australia already has robust oversight, accountability mechanisms and legislation like the Intelligence Services Act 2001, which clearly guide our intelligence agencies on when our own citizen’s communications and privacy can be compromised.

But newer methods of surveillance such as meta-data collection or the ability for police and our intelligence agencies to more quickly access the time, duration, telephone numbers and IP addresses of communications (but not the content of calls and emails) do raise concerns about both the ethical and policy appropriateness of such measures. From an ethical standpoint metadata collection potentially is a greater invasion of privacy, and like all other kinds of surveillance and intelligence collection it should pass both the ‘reasonable suspicion’ or ‘probable cause’ tests.

In other words, in each case an assessment needs to be made on the reasonable probability metadata and communications need to be intercepted. There has to be a reasonable suspicion that a serious criminal offence is being or about to be committed. The case made by police or intelligence agencies to access metadata should then be tested in front of a judge before a warrant is issued. This is a stance that the Obama White House and the House of Representatives have taken in response to the Snowden leaks by introducing the USA Freedom Act aimed at no longer allowing the NSA to collection bulk metadata. In November 2014 however, the USA Freedom Act was defeated in the US Senate after the Republican party retook control of Congress. The bill’s future is now less clear.

Australia’s metadata retention law (Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014) and similar a UK version that was rushed through their parliament last July will both allow police and intelligence agencies to directly access metadata from telcos. The proposed Australian data retention legislation does raise privacy concerns, but such laws also raise policy concerns about just how effective using metadata is in police and intelligence operations. Senior members of the US intelligence community didn’t do a great job articulating the effectiveness of the NSA programs after the Snowden leaks. Former NSA Chief General Keith Alexander said that metadata collection and analysis stopped 50 terrorist attacks though later had to correct the record to say it was just one.

The data mining and analytics approaches that undermine metadata searches are still relatively new to counter-terrorism and they are not at the stage yet where they can ‘predict’ in a timely manner where the next terrorist attack might be. Given the policy and ethical concerns however, should we just tell our police and intelligence agencies that they just can’t have this metadata technology? Well no, given the massive amounts of global communications we need technology that will both find the haystack and then hopefully the needle.

The real question is how do we manage data access and its consequences? The Australian data retention bill was referred to the Parliamentary Joint Committee on Intelligence and Security last November and the Committee has been hearing submissions in late January. The Committee just like its review of the Foreign Fighters bill of last year is likely to come up with some useful recommendations to improve what is being proposed.

But here a few points I think should be included (this is on presumption that the legislation will pass). First the oversight for this new legislation should be shared by the Independent National Security Legislation Monitor and the Inspector General of Intelligence and Security (IGIS). Both independent officers should be given additional funds to monitor how effective the legislation is in disrupting/preventing terrorist attacks and the impact on privacy. Both officers should submit a combined classified report to the national security committee of cabinet and an unclassified one to the Parliamentary Joint Committee on Intelligence and Security. The IGIS in her public annual report to parliament should also list the number of terrorist attacks stopped using data retention legislation and  any general concerns about privacy following her regular inspection meetings with intelligence agencies.

Second, there should be a sunset clause for the data retention legislation of five years.

Third, although the intelligence community already has excellent training for its intelligence officers and analysts, it would be worthwhile reviewing current training on privacy and ethics given how complex the sands have shifted since 9/11.

These measures will help ensure that any data retention legislation more successfully addresses all Australians’ two basic rights – security and privacy. Mistakes may be made by our policing and intelligence agencies using such legislation, but in a liberal democracy such as ours these can be exposed quickly to ensure the necessary remediation. The next five years is going to test all liberal democracies with no end in sight from the terrorism threat. We need to change some of the rhetoric away from simplistic and hyperbolic claims like these laws are making us into a ‘Stasi state’ to one informed by the facts and an accountability of our policing and security agencies.

The threat from terrorism over the next five years is too great for us to do otherwise.

0 Comments

1. 

   TheDirt

   November 16, 2015 at 12:08 pm

   Isn’t prevention better than cure though?

   Warwick resident Johnno Felton has called on politicians to "man up" and tackle the immigration issue head on. I agree with this guy. As I think most of us do. Cut the political red tape, and do the thing that fear is telling us to do, in this case, and eliminate the threat, to Australia and her citizens, by "You've can't sandbag and police every spot across the country," Mr Felton said. "What is happening is that politicians are too afraid of creating a panic, but this is a war." The former soldier said Australia needs to set an example and take tougher action. "We have something like 200 suspected terrorists under surveillance in Australia," he said. This fact is obviously utterly unacceptable, and hard to actually comprehend. WTF are we doing keeping these people under surveillance? How are these terrorists still free in Australia's back yard? Zero tolerance for terrorists, is a basic solution. So lets get real. Fear keeps us safe, lets not forget that fellow human beings. Fear drives us to make very real and very effective decisions, to remain safe and alive, and it promotes safer environments. Lets use this FEAR to make very effective and very real moves to eliminate the RISK. We'd be pretty dumb humans not to do just that. After all we have been doing so since the dawn of time, primitively. Those kinds of decisions have to cut through any red tape bull shit, and awkward indecisiveness fueled by fear of ridicule. Think of your children's futures. Make this country safe again, and fast. A.C.T swiftly and LEAVE no STONE UN TURNED.This is not, I repeat this is not a drill. Remove these people who wish to terminate our free speech and freedom, who wish to kill Australia. We are at war Mr Turnbull, people of Australia, and haven't we had enough pussy footing neck deep through this festering boil already? Time to find the shore line of resolve and find our footing again. France for example.. Highlights, the big problem of refugee, migrant Ass seeker, settlement, within established, lands. There unfortunately will have to be another way, to ensure the public safety of that lands current law abiding, non terrorist resident. That trumps the terrorist risks, in my opinion, sorry. This isn't your typical refugee crisis, of the past. The elements here in now, are somewhat different, and have attached to them new and credible, risks, that need to cater to the safety and freedom of the established lands, that were offering asylum. Unfortunately, we do not want to bring terrorism to our land, in the form of a stow away rat, hiding in the shadows of genuine good hearts, mascaraing as the very devil them self. So this will and can only push us to start a new screening process, for all potential genuine and non genuine refugess, ass seekers, migrants etc etc far from this land and remote in nature. "There is no use waiting until after an event like The Paris terrorists, has happened to take action – by then it's too late, are we not getting this still. The curse or spell of this is no longer blinding us. It's come to gut instinct now, too bad to all genuine asylum seekers, it will have to be guilty until proven innocent, for a long while yet to come, and that's unfortunate for you, but you have the terrorists to thank for that. Good hearted people worldwide are united on this, we cant have our cake and eat it too. We should be interning these people on an island somewhere!! Far fetched you say? Inhumane you scream. Again I say. Terrorists don't play nicely and by the rules, right. They make their own, in order to try to STRIP us of ours. Make no mistake, a war was brought to us, we have a very real and present enemy, seeking to destroy us. All is fair in love and war. Time to preserve what we have, before it's TOO late. A half arsed effort will not suffice people, wake up it's time to smell the cookies, push has come to shove. I for one will fight for my freedom, Tolerance should not be expected of us, the rules have changed and it's about damn time.