Intelligence Sharing

Author: Nyman Gibson Miralis

Subject: Information Sharing

Keywords: Intelligence sharing, privacy, Privacy International, oversight bodies, secret intelligence.

 

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.

 

Nyman Gibson Miralis specialise in all aspects of extradition and mutual legal assistance (MLA) law, and have expertise in complex transnational investigations. If you require assistance, contact one of our expert criminal defence lawyers