Oversight of spy activity is years behind the technology

Democrats and Republicans in the US having similar opinions? Yes, it has come to this. Thanks to the latest batch of revelations about the National Security Agency’s surveillance activities, a degree of bipartisanship – long considered extinct – has returned to the US.

In the current toxic climate of Washington DC, where a stubborn lack of bipartisanship created the recent government shutdown fiasco, there can be no clearer evidence of the impact of whistleblower Edward Snowden.

Of course, there's just that tiny element of self-interest to spur the politicos. Initial revelations that the NSA had been data-gathering from citizens and businesses was defended to varying degrees by many politicians, including – surprisingly – powerful California Democrat Senator Diane Feinstein.

But we learned this past week that the spying included monitoring the phones of world leaders. Angela Merkel – she's supposed to be a pal!

The two principal authors of the Patriot Act, senator Patrick Leahy, a Democrat, and representative James Sensenbrenner, a conservative Republican, have introduced legislation to limit the NSA's abilities to collect and analyse mobile calls and email data.

Feinstein, who chairs the senate intelligence committee and – in the wake of past leaks – insisted there was adequate political and legislative oversight of NSA surveillance, said on Monday she did "not believe the United States should be collecting phone calls or emails of friendly presidents and prime ministers." She added that she intends for there to be a "major review of all intelligence programmes".

This was in the context of noting they had not been fully reviewed in years. What an extraordinary revelation that is on its own. Consider that politicians in the US brought in the more secretive and extreme surveillance measures allowed in the Patriot Act in the wake of the 9/11 attacks more than a decade ago.

Surely such measures should have had close and regular review by political oversight committees at least every few years since?

Capabilities
And consider too how exponentially different today's technologies and capabilities are. In 2001, a GSM phone capable of accessing WAP-formatted websites was the bee's knees. "Big data" meant trying to upload a song to Napster. "Cloud computing" meant working on your laptop on an Aer Lingus tray table. The tech world has moved on quite a bit since then.

MPs in the UK are also belatedly realising that a bit of a review may be needed, given the snooping possibilities offered by new technologies (abilities the Russian security expert Eugene Kaspersky has been highlighting now for a couple of years).

In the wake of Snowden’s revelations about GCHQ’s activities, parliamentary intelligence watchdog, the intelligence and security committee, is to hold an inquiry into whether snooping laws are “fit for purpose”.

According to its chairman Sir Malcolm Rifkind MP, the committee plans “further work on the legislation which governs the security and intelligence agencies’ access to the content of private communications, including to determine whether the relevant acts of parliament are still ‘fit for purpose’ given the developments in information technology since they were enacted.”

The thing is, although such reviews are without doubt essential to ensure laws are robust enough to embrace the uses spooks make of the latest technologies, in another way, they shouldn’t produce many needed changes if the laws are sound to begin with.

That’s because, too often, the problem with adequate lawmaking is the forcing in of too much limiting complexity by focusing on the technologies, rather than the intent of the law.

It’s already quite clear that both GCHQ and the NSA could almost certainly be challenged with existing national and international laws that provide civil and human rights protections. How a violation is committed is, in this sense, mere detail.

Proportionality
And when it come to mass surveillance activities, including the gathering and storing of phone and internet data on millions of citizens – not just targeted suspects – such laws can also be used to consider the limits of proportionality.

For that matter, proportionality might apply in the case of the leaders of the at least 35 countries, many of them allies of the US, whose phones were monitored by the NSA. Isn't 35 a bit excessive? Did US president Obama really not know? And if he didn't know, what is the point of snooping on allies?

However, the bleatings of politicians who indicated they were shocked, shocked to learn of the extent of the NSA's activities did lead US director of national intelligence James Clapper to reference the same 1940s film that gave the world that double-shocked phrase.

"It reminds me of Casablanca," Clapper said of their alarmed reactions. "My God, there's gambling going on here."