KENNY MacAskill has had a busy week axing corroboration in Scottish courts, increasing the threshold for a majority verdict and asking the Scottish Law Commission to decide the fate of Scotland’s not proven verdict.
That would be enough for most Scottish ministers the week before the summer recess. But there’s more.
Last week CIA whistle-blower Ed Snowden revealed a new dimension to the “no holds barred” international snooping trade. “The UK has a huge dog in this fight,” he told reporters from a secret location in Hong Kong. “They [GCHQ] are worse than the US.”
Snowden claims Britain’s spy centre is active in the data harvesting game – intercepting and storing internet content for up to 30 days and sharing it with the American National Security Agency (NSA) and other governments.
So now Scotland’s justice minister is demanding the impossible – a guarantee from Foreign Secretary William Hague that UK law is being upheld in GCHQ interception of data emanating from Scotland.
That surely is a pious hope. First of all, what exactly does “legal” mean any more? The international nature of data transfer outlined by Ed Snowden resembles a giant game of virtual ping pong where governments can probably abide by the letter of hugely permissive “catch all” security laws by exchanging massive amounts of data with foreign governments and private corporations. That way they don’t breach rule on confidentiality – but they know some multinational giants who can.
Ed Snowden claimed the NSA’s “Prism” programme has tapped directly into the servers of nine internet firms including Facebook, Google, Microsoft and Yahoo. All these internet companies deny giving the US government access to their servers.
You don’t have to be a conspiracy theorist to agree with Nick Pickles of Big Brother Watch: “This appears to be the centralised database of all our internet communications… that successive governments have ruled out and parliament has never legislated for.” So GCHQ’s actions can be both legal and beyond the pale.
Secondly, what degree of trust do people have in government promises these days? Politicians may think Iraq is old news but memories of the dodgy dossier, false 45-minute warning and non-existent WMDs still linger. Since then failed IT projects, top-secret government laptops left on trains, lying bankers, expense-fiddling MPs and predatory TV celebrities have all contributed to an erosion of trust between the powerful and the people. Every week another official massaging of plain English and decent standards is exposed.
So, thirdly, is Mr MacAskill asking the Commons Intelligence and Security Committee (ISC) to do the impossible by getting to the bottom of GCHQ behaviour?
Recently two US senators observed, “the intelligence community has stated repeatedly it is not possible to provide even a rough estimate of how many American communications have been collected”. Here, MI6 and GCHQ are overseen by two “independent” commissioners chosen by the prime minister. If congress and parliament can’t oversee what they aren’t told about, how can ISC chair (and former foreign secretary) Malcolm Rifkind get further? Scottish ministers constantly question the efficacy and good faith of Westminster. Why then expect Scots to believe their security-related assurances?
There’s evidence that US military planes did use Scottish airports for torture flights to Poland despite all cast-iron government assurances to the contrary. Even if it’s ultimately impossible to prove these were rendition flights, the cumulative effect of massaged commitments and official half-truths has caused public trust to evaporate.
Finally, what does it matter if governments promise they acted within the law? It’s one thing for the NSA and GCHQ to have access to every boring, mundane exchange between citizens. It’s another to suspect that multinational social media companies and private defence contractors have colluded to intercept “private” information, taking advantage of national boundaries to avoid restriction.
“There’s been a tremendous surge in contractor reliance, post-9/11,” says Steve Aftergood, from the Federation of American Scientists. “Contractors are asked to perform tasks from intelligence analysis to prisoner interrogation to…you name it.” A congressional enquiry found such contractors cost around twice as much as in-house intelligence operatives – leading to the inescapable conclusion that contractors are worth their weight in gold because they can boldly go where governments (still) fear to tread. As one commentator put it: “Ever since it first became clear that the internet was going to become the nervous system of the planet, the 64 billion dollar question was whether it would be ‘captured’ by giant corporations or by governments. Now we know the answer: it’s both.”
Presumably Mr MacAskill is trying to apply pressure to William Hague. But perhaps he is missing a trick. There is a different developing European view on human rights, the internet, openness and the limits of security – and it’s time the Scottish Government backed it.
The EU stopped Microsoft embedding its own browser into operating systems in case that restricted users from buying non-Microsoft products. The EU has more relaxed rules about intellectual property – that’s why so many internet software systems are patented in the US instead. Indeed earlier this month two American companies tried to patent human DNA – a move mercifully blocked by the American Supreme Court.
The EU is currently funding the development of search engines that will not be Prism-compatible, inspired perhaps by Linux, the open software system, also European. Isn’t it worth trying to develop a distinct European view on openness rather than ask the UK government for commitments few Scots are likely to believe? Isn’t it worth demanding that GCHQ – able to find needles in haystacks of internet data – act now to close down the trade in child pornography? Isn’t it worth distancing Scotland from a transatlantic snooping trade in which private and public players now resemble self-appointed vigilantes on a virtual frontline between good and evil?
Before he left for Russia yesterday, Amnesty International argued that Hong Kong must refuse any request for Ed Snowden’s extradition if a public interest defence is not available to him in the USA. Surely the Scottish Government could champion that stance instead of requesting weasel words from Westminster? As the weekend’s most popular tweet suggests: “Let GCHQ know you’re unhappy about their surveillance by sending an e-mail to, well, anyone really.”