Secret intelligence sharing across borders

How does the international sharing of intelligence raise potential human
rights threats?

It does not come as a surprise to the public that secret intelligence is
shared among secret agencies across borders.

But do we actually know what it involves? The information relating to
any intelligence sharing process is protected as ‘confidential information’.
The protection against public disclosure is commonly justified in the name of
national security.

A person’s personal information may be shared across the border without
the person having the slightest clue as to the circumstances surrounding such
sharing. The use and purpose of the exchange will remain unknown and the
process in which such exchange was made will be undisclosed.

All the information is covered in a single blanket of secrecy. As a
result, even the basic nature and scope of these arrangements is left
unanswered including:

1.    What constitutes
‘secret intelligence’?

2.    What personal
information is shared?

3.    What are the rules
in sharing intelligence?

Most importantly, who oversees the process of sharing personal,
confidential and private information across borders?

In September 2017, Privacy International published the ‘Human
Rights Implications of Intelligence Sharing’ (Briefing to National
Intelligence Oversight Bodies) (the ‘PI report’).

By way of introduction, the report emphasised that “[t]he effective
oversight of secret surveillance is among the fundamental guarantees against
government’s unlawful interference with the right to privacy.”

Security at the expense of Privacy

Intelligence sharing
arrangements are a crucial instrument which allows the agencies around the
world to;

·        
Exchange secret and private information;

·        
Engage in tactical cooperation;

·        
Share facilities and equipment; and

·        
Provide technical and financial support. 

However, the intelligence arrangements are typically confidential and
not subject to public scrutiny.

The irony is that the agencies who are effectively the ‘watchers’ have
minimal, if not at all, international or domestic bodies to ‘watch them’.

It is a threat to privacy and human rights when the process of
intelligence sharing operates on a level where there are no independent
mechanisms to regulate and monitor those operations.

The PI report, in particular, identified the following three areas of
concern;

1.    Unregulated
practices circumvent international and domestic constraints on direct
surveillance relating to their own citizens;

2.    Unregulated
practices may enable States known to violate international law to obtain
intelligence; and

3.    Intelligence
sharing can generally weaken the accountability.

Insufficient Oversight

In Australia, the Inspector-General of Intelligence and Security (IGIS)
performs the role of monitoring the Australian intelligence and security
agencies. In essence, the role is to conduct inquiries, investigate complaints
and make recommendations to the government.

A clear limitation of this oversight body is that the detailed outcomes
of any inquiries or investigations the body conducts into the intelligence
sharing agreements will remain undisclosed.

Furthermore, the scarce information relating to intelligence sharing
arrangements in the public forum limits the ability of persons, who are not
privy to the confidential information, to challenge the sharing process.

Conclusion

The PI report made the following recommendations;

1.    Make publicly
available as much information as possible relating to the nature and scope of
intelligence sharing agreements;

2.    Review existing
legislation and rules governing intelligence sharing with a view to assess
their compliance with the law;

3.    Initiate
independent investigations into the intelligence sharing practices and make the
results of such investigations publicly available.

Implementing these recommendations would provide effective control and
protection to citizens against the processes that clearly can interfere with
their rights.