Parliamentary Evidence on the UK Investigatory Powers Bill

My written evidence to the Scrutiny Committee in the UK Houses of Parliament that is currently examining the much-disputed Investigatory Powers Bill (IP):

1. My name is Annie Machon and I worked as an intelligence officer for the UK’s domestic Security Service, commonly referred to as MI5, from early 1991 until late 1996. I resigned to help my partner at the time, fellow intelligence officer David Shayler, expose a number of instances of crime and incompetence we had witnessed during our time in the service.

2. I note that the draft IP Bill repeatedly emphasises the importance of democratic and judicial oversight of the various categories of intrusive intelligence gathering by establishing an Investigatory Powers Commissioner as well as supporting Judicial Commissioners. However, I am concerned about the real and meaningful application of this oversight.

3. While in the Service in the 1990s we were governed by the terms of the Interception of Communications Act 1985 (IOCA), the precursor to RIPA, which provided for a similar system of applications for a warrant and ministerial oversight.

4. I would like to submit evidence that the system did not work and could be manipulated from the inside.

5. I am aware of at least two instances of this during my time in the service, which were cleared for publication by MI5 in my 2005 book about the Shayler case, “Spies Lies, and Whistleblowers”, so my discussing them now is not in breach of the Official Secrets Act. I would be happy to provide further evidence, either written or in person, about these abuses.

6. My concern about this draft Bill is that while the oversight provisions seem to be strengthened, with approval necessary from both the Secretary of State and a Judicial Commissioner, the interior process of application for warrants will still remain opaque and open to manipulation within the intelligence agencies.

7. The application process for a warrant governing interception or interference involved a case being made in writing by the intelligence officer in charge of an investigation. This then went through four layers of management, with all the usual redactions and finessing, before a final summary was drafted by H Branch, signed by the DDG, and then dispatched to the Secretary of State. So the minister was only ever presented with was a summary of a summary of a summary of a summary of the original intelligence case.

8. Additionally, the original intelligence case could be erroneous and misleading. The process of writing the warrant application was merely a tick box exercise, and officers would routinely note that such intelligence could only be obtained by such intrusive methods, rather than exploring all open source options first. The revalidation process could be even more cavalier.

9. When problems with this system were voiced, officers were told to not rock the boat and just follow orders. During the annual visit by the Intelligence Intercept Commissioner, those with concerns were banned from meeting him.

10. Thus I have concerns about the realistic power of the oversight provisions written into this Bill and would urge an additional provision. This would establish an effective channel whereby officers with concerns can give evidence directly and in confidence to the Investigatory Powers Commissioner in the expectation that a proper investigation will be conducted and with no repercussions to their careers inside the agencies. Here is a link to a short video I did for Oxford University three years ago outlining these proposals:

11. This, in my view, would be a win-win scenario for all concerned. The agencies would have a chance to improve their work practices, learn from mistakes, and better protect national security, as well as avoiding the scandal and embarrassment of any future whistleblowing scandals; the officers with ethical concerns would not be placed in the invidious position of either becoming complicit in potentially illegal acts by “just following orders” or risking the loss of their careers and liberty by going public about their concerns.

12. I would also like to raise the proportionality issue. It strikes me that bulk intercept must surely be disproportionate within a functioning and free democracy, and indeed can actually harm national security. Why? Because the useful, indeed crucial, intelligence on targets and their associates is lost in the tsunami of available information. Indeed this seems to have been the conclusion of every inquiry about the recent spate of “lone wolf” and ISIS-inspired attacks across the West – the targets were all vaguely known to the authorities but resources were spread too thinly.

13. In fact all that bulk collection seems to provide is confirmation after the fact of a suspect’s involvement in a specific incident, which is surely specifically police evidential work. Yet the justification for the invasive intercept and interference measures laid out in the Bill itself is to gather vital information ahead of an attack in order to prevent it – the very definition of intelligence. How is this possible if the sheer scale of bulk collection drowns out the vital nuggets of intelligence?

14. Finally, I would like to raise the point that the phrase “national security” has never been defined for legal purposes in the UK. Surely this should be the very first step necessary before formulating the proposed IP Bill? Until we have such a legal definition, how can we formulate new and intrusive laws in the name of protecting an undefined and nebulous concept, and how can we judge that the new law will thereby be proportionate within a democracy?

Webstock in New Zealand

Webstock_2016_2I just want to say a huge thank you to the organisers of the 10th Webstock Festival in New Zealand earlier this month – definitely worth the interminable flights.

This is a tech-focused conference that very much looks at the bigger picture and joins a whole number of different societal dots.

Plus they look after their “inspirational speakers” exceedingly well, with scary coach trips out of Wellington and up the cliffs, a chance to appreciate the finer aspects of bowling at a NZ working men’s club, and a rip-roaring party at the end of the festival. It was great to have the time to chat with so many amazing people.

Oh, and I experienced my first earthquake – 5.7 on the Richter Scale. Slightly distant, but still impressive when you’re in a swaying 5th floor hotel room.  I initially thought a bomb might have gone off in the basement….  Thankfully, NZ hotels are made of pliable, if stern, stuff.

I was also shunted on to Radio New Zealand for a half hour interview, discussing whistleblowers, spies, drugs and surveillance.  Here it is – it was fun to do – so thank you NZ.

MI5 officer has evidence of torture?

Well, this story is interesting me extremely, and for the obvious as well as the perhaps more arcanely legal reasons.

Apparently a former senior MI5 officer is asking permission to give evidence to the Intelligence and Security Committee in Parliament about the Security Service’s collusion in the US torture programme that was the pyroclastic flow from the 9/11 attacks in 2001.

I have long speculated about how people with whom I used to work, socialise with, have dinner with in the 1990s might have evolved from idealistic young officers into people who could condone or even participate in the torture of other human beings once the war on terror was unleashed in the last decade.

During the 1990s MI5 absolutely did not condone the use of torture – not only for ethical reasons, but also because an older generation was still knocking around and they had seen in the civil war in Northern Ireland quite how counter-productive such practices were.  Internment, secret courts, stress positions, sleep deprivation – all these policies acted as a recruiting sergeant for the Provisional IRA.

My generation – the first tasked with investigating the IRA in the UK and Al Qaeda globally – understood this.  We were there to run intelligence operations, help gather evidence, and if possible put suspected malefactors on trial. Even then, when ethical boundaries were breached, many raised concerns and many resigned.  A few of us even went public about our concerns.

But that is so much history.  As I said above, I have always wondered how those I knew could have stayed silent once the intelligence gloves came off after 9/11 and MI5 was effectively shanghaied into following the brutish American over-reaction.

Now it appears that there were indeed doubters within, there was indeed a divided opinion. And now it appears that someone with seniority is trying to use what few channels exist for whistleblowers in the UK to rectify this.

In fact, my contemporaries who stayed on the inside would now be the senior officers, so I really wonder who this is – I hope an old friend!

No doubt they will have voiced their concerns over the years and no doubt they will have been told just to follow orders.

I have said publicly over many years that there should be a meaningful channel for those with ethical concerns to present evidence and have them properly investigated. In fact, I have even said that the Intelligence and Security Committee in Parliament should be that channel if – and it’s a big if – they can have real investigatory powers and can be trusted not just to brush evidence under the carpet and protect the spies’ reputation.

So this takes me to the arcane legalities I alluded to at the start. During the David Shayler whistleblowing trials (1997-2003) all the legal argument was around the fact that he could have taken his concerns to any crown servant – up to the ISC or his MP and down to and including the bobby on the beat – and he would not have breached the Official Secrets Act. That was the argument upon which he was convicted.

Yet at the same time the prosecution also successfully argued during his trial in 2002 in the Old Bailey that there was a “clear bright line” against disclosure to anyone outside MI5 – (Section 1(1) OSA (1989) – without that organisation’s prior written consent.

The new case rather proves the latter position – that someone with ethical concerns has to “ask permission” to give evidence to the “oversight body”.

Only in the UK.

Now, surely in this uncertain and allegedly terrorist-stricken world, we have never had greater need for a meaningful oversight body and meaningful reform to our intelligence agencies if they go off-beam. Only by learning via safe external ventilation, learning from mistakes, reforming and avoiding group-think, can they operate in a way that is proportionate in a democracy and best protects us all.

The Dark Web – interview on TRT World

Here’s a recent interview I did for “The Newsmakers” programme on TRT World, discussing the Dark Web and privacy:

The Newsmakers, TRT World, Turkey from Annie Machon on Vimeo.

The aftermath of Paris – Going Underground

Here’s a recent interview I did on RT’s Going Underground about the aftermath of the Paris attacks:

RT_Going_Underground_After_the_Paris_Attacks from Annie Machon on Vimeo.

Freedom Equals Surveillance

Here’s an interview I did for RT a while ago about the USA’s Orwellian NewSpeak about surveillance:

US_Freedom_Act_surveillance_act_in_disguise from Annie Machon on Vimeo.

Exile – ExBerliner Article

My most recent article for the ExBerliner magazine:

What is exile? Other than a term much used and abused by many new expats arriving in Berlin, dictionary definitions point towards someone who is kept away from their home country for political reasons, either by regal decree in the past or now more probably self-imposed. But there are many other ways to feel exiled – from mainstream society, from your family, faith, profession, politics, and Berlin is now regarded as a haven.

However, let’s focus on the classic definition and a noble tradition. Every country, no matter how apparently enlightened, can become a tyrant to its own citizens if they challenge abuses of power. Voltaire was exiled in England for three years and soon after Tom Paine, a former excise man facing charges for seditious libel, sought refuge in France. More recent famous exiles include David Shayler, the MI5 whistleblower of the 1990s who followed in Paine’s footsteps pretty much for the same fundamental reasons, yet Alexander Litvinenko, the KBG whistleblower of the same era, ironically found safe haven in exile in the UK.

So, being an exile effectively means that you have angered the power structures of your home country to such an extent that other countries feel compelled to give you refuge, partly for legal or principled reasons, but also for political expediency. The current most famous exile in the world is, of course, Edward Snowden, stranded by chance in Russia en route to political asylum in Ecuador.

What does the act of fleeing into exile actually feel like? It is a wild leap into an unknown and precarious future, with great risk and few foreseeable rewards. At the same time, as you leave the shores of the persecuting country, evading the authorities, avoiding arrest and going on the run, there is an exhilarating, intense feeling of freedom – a sense that the die has very much been cast. Your old way of life is irrevocably at an end and the future is a blank slate on which you can write anything.

After Shayler and I fled to France in 1997, for the first year of the three we lived in exile we hid in a remote French farmhouse just north of Limoges – the nearest village was 2 kilometres away, and the nearest town a distant thirty. We lived in constant dread of that knock on the door and the ensuing arrest. And that, indeed, eventually did catch up with him.

As a result, for Shayler it meant the world grew increasingly small, increasingly confined. Initially, when we went on the run, we were free to roam across Europe – anywhere but the UK. Then, after the French courts refused to extradite him to Britain in 1998 to face trial for a breach of the draconian UK Official Secrets Act, France became the only place he could live freely. If he had then traveled to any other European country, the British would have again attempted to extradite him, probably successfully, so he was trapped.

However, there are worse places than France in which to find yourself stranded. As well as being one of the most beautiful and varied countries in the world it felt particularly poignant to end up exiled in Paris for a further two years.

It was also conveniently close to the UK, so friends, family, supporters and journalists could visit us regularly and bring Shayler supplies of such vital British staples as bacon and HP source. But he still missed the simple pleasures in life, such as being free to watch his beloved football team, or being able to watch the crappy late night comedy shows that the British endlessly churn out. Despite these small lacks, I shall always remember those years in France fondly, as a place of greater safety, a literal haven from persecution.

Of course, all this was in the era before the standardised European Arrest warrant, when national sovereignty and national laws actually counted for something. Finding a secure place of exile now would be almost an impossibility in Europe if you home country really wanted to prosecute you.

Many Western expats now talk of being “exiled in Berlin”, and they may indeed be self-exiled in search of a more sympatico life style, a buzzy group of like-minded peers, work opportunities or whatever. But until they have felt the full force of an extradition warrant, before the fuzz has actually felt their collars, this is realistically exile as a lifestyle choice, rather than exile as a desperate political necessity or, in Edward Snowden’s case, a potentially existential requirement.

German Netzpolitik journalists investigated for treason

Press freedom is under threat in Germany – two journalists and their alleged source are under investigation for potential treason for disclosing and reporting what appears to be an illegal and secret plan to spy on German citizens. Here’s the interview I did for RT.com about this yesterday:

German Netzpolitik journalists face treason charges from Annie Machon on Vimeo.

Re:publica – The War on Concepts

This week I made my first visit to the re:publica annual geekfest in Berlin to do a talk called “The War on Concepts”. In my view this, to date, includes the four wars – on drugs, terror, the internet, and whistleblowers. No doubt the number will continue to rise.

Here’s the video:

republica_2015_Annie_Machon_The_War_on_Concepts from Annie Machon on Vimeo.

Anything to Say? unveiled in Berlin

Last week artist Davide Dormino unveiled his sculpture celebrating whistleblowers in Alexanderplatz, Berlin.

Called “Anything to Say?”, the sculpture depicts Chelsea Manning, Edward Snowden and Julian Assange standing on three chairs, with an empty fourth chair beside them, upon which we are all encouraged to stand up on and speak our truth.

Davide invited me to do just that for the unveiling ceremony, along with German MP for the Green Party and whistleblower supporter, Hans Christian Stroebele and Wikileaks’ Sarah Harrison. Here’s a report:

Anything_to_Say?_sculpture_unveiled_in_Berlin from Annie Machon on Vimeo.

Code Red Media Launch in Perugia

I am very happy to announce a new initiative, Code Red,  that Simon Davies (the founder of Privacy International and The Big Brother Awards) and I have been organising over the last few months.  In fact, not just us, but a panoply of global privacy and anti-surveillance campaigners from many areas of expertise.

Simon and I have known each other for years, way back to 2002, when he gave one of the earliest Winston Awards to David Shayler, in recognition of his work towards trying to expose surveillance and protect privacy. That award ceremony, hosted by comedian and activist Mark Thomas, was one of the few bright points in that year for David and me – which included my nearly dying of meningitis in Paris and David’s voluntary return to the UK to “face the music”; face the inevitable arrest, trial and conviction for a breach of the Official Secrets Act that followed on from his disclosures about spy criminality.

Anyway, enough of a detour down memory lane – back to Code Red. Regular readers of this website will know that I have some slight interest in the need to protect our privacy for both personal reasons and societal good. Over the last 18 years since helping to expose the crimes of the British spies, I have worked with the media, lawyers, campaigners, hackers, NGOs, politicians, wonks, geeks, whistleblowers, and wonderfully concerned citizens around the world – all the time arguing against the encroaching and stealthy powers of the deep, secret state and beyond.

While many people are concerned about this threat to a democratic way of life, and in fact so many people try to push back, I know from experience the different pressures that can be exerted against each community, and the lack of awareness and meaningful communication that can often occur between such groups.

So when Simon posited the idea of Code Red – an organisation that can functionally bring all these disparate groups together, to learn from each other, gain strength and thereby work more effectively, it seemed an obvious next step.

Some progress has already been make in this direction, with international whistleblower conferences, cryptoparties, training for journalists about how to protect their sources, campaigns to protect whistleblowers, activist and media collectives, and much more.  We in Code Red recognise all this amazing work and are not trying to replicate it.

But we do want to do is improve the flow of communication – would it not be great to have a global clearing house, a record, of what works, what does not, a repository of expertise from all these inter-related disciplines from a round the world that we can all learn from?

This is one of the goals of Code Red, which launched to the media at the International Journalism Festival in Perugia a few weeks ago.  We were then lucky enough to also hold a launch to the tech/hacktivist community in Berlin a few days after at C Base – the mother-ship of hackers.

Here is the film of the Perugia launch:

Code Red – launched in Perugia, April 2015 from Annie Machon on Vimeo.

AcTVism film trailer

The AcTVism Munich media collective is releasing a film on 19th April featuring Noam Chomsky, The Real News Network‘s Paul Jay and  myself.

Filmed last January, we discussed the old and new media, activism, and much more.

Here’s the trailer:

AcTVism Trailer – Chomsky, Machon and Jay from Annie Machon on Vimeo.

No encryption? How very rude.

First published on RT Op-Edge.

It struck me today that when I email a new contact I now reflexively check to see if they are using PGP encryption.  A happily surprising number are doing so these days, but most people would probably consider my circle of friends and acquaintance to be eclectic at the very least, if not downright eccentric, but then that’s probably why I like them.

There are still alarming numbers who are not using PGP though, particularly in journalist circles, and I have to admit that when this happens I do feel a tad miffed, as if some basic modern courtesy is being breached.

It’s not that I even expect everybody to use encryption – yet – it’s just that I prefer to have the option to use it and be able to have the privacy of my own communications at least considered. After all I am old enough to remember the era of letter writing, and I always favoured a sealed envelope to a postcard.

And before you all leap on me with cries of “using only PGP is no guarantee of security….” I do know that you need a suite of tools to have a fighting chance of real privacy in this NSA-saturated age: open source software, PGP, TOR, Tails, OTR, old hardware, you name it.  But I do think the wide-spread adoption of PGP sets a good example and gets more people thinking about these wider issues.  Perhaps more of us should insist on it before communicating further.

Why is this in my mind at the moment?  Well, I am currently working with an old friend, Simon Davies, the founder of Privacy International and the Big Brother Awards. He cut his first PGP key in 2000, but then left it to wither on the vine. As we are in the process of setting up a new privacy initiative called Code Red (more of which next week) it seemed imperative for him to set a good example and “start using” again.

Anyway, with the help of one of the godfathers of the Berlin cryptoparties, I am happy to report that the father of the privacy movement can now ensure your privacy if you wish to communicate with him.

I am proud to say that my awareness of PGP goes back even further.  The first time I heard of the concept was in 1998 while I was living in hiding in a remote farmhouse in central France, on the run from MI5, with my then partner, David Shayler.

Our only means of communication with the outside world was a computer and a dial-up connection and David went on a steep learning curve in all things geek to ensure a degree of privacy.  He helped build his own website (subsequently hacked, presumably by GCHQ or the NSA as it was a sophisticated attack by the standards of the day) and also installed the newly-available PGP. People complain now of the difficulties of installing encryption, but way back then it was the equivalent of scaling Mount Everest after a few light strolls in the park to limber up.  But he managed it.

Now, of course, it is relatively easy, especially if you take the time to attend a Cryptoparty – and there will be inevitably be one happening near you some place soon.

Cryptoparties began in late 2012 on the initiative of Asher Wolf in Australia.  The concept spread rapidly, and after Snowden went public in May 2013, accelerated globally. Indeed, there have been various reports about the “Snowden Effect“.  Only last week there was an article in the Guardian newspaper saying that 72% of British adults are now concerned about online privacy. I hope the 72% are taking advantage of these geek gatherings.

The US-based comedian, John Oliver, also recently aired an interview with Edward Snowden.  While this was slightly painful viewing for any whistleblower – Oliver had done a vox pop in New York that he showed to Snowden, where most interviewees seemed unaware of him and uncaring about privacy – there was a perceptible shift of opinion when the issue of, shall we say, pictures of a sensitive nature were being intercepted.

Officially this spy programme is called Optic Nerve, an issue that many of us have been discussing to some effect over the last year.  In the Oliver interview this transmogrified into “the dick pic programme”.  Well, whatever gets the message out there effectively…. and it did.

We all have things we prefer to keep private – be it dick pics, bank accounts, going to the loo, talking to our doctor, our sex lives, or even just talking about family gossip over the phone.  This is not about having anything to hide, but most of us do have an innate sense of privacy around our personal issues and dealings and this is all now lost to us, as Edward Snowden has laid bare.

As I have also said before, there are wider societal implications too – if we feel we are being watched in what we watch, read, say, write, organise, and conduct our relationships, then we start to self-censor.  And this is indeed already another of the quantified Snowden effects. This is deleterious to the free flow of information and the correct functioning of democratic societies.  This is precisely why the right to privacy is one of the core principles in the 1948 Universal Declaration of Human Rights.

Lessons had then been learned from the Nazi book burnings and the Gestapo spy state, and privacy was recognised as a pre-requisite of open democracy. Yet now we see senior and supposedly well-informed US politicians calling for the modern equivalent of book burnings and failing to rein in the global abuses of the NSA.

How quickly the lessons of history can be forgotten and how carelessly we can cast aside the hard-won rights of our ancestors.

Edward Snowden, at great personal risk, gave us the necessary information to formulate a push back. At the very least we can have enough respect for the sacrifices he made and for the rights of our fellow human beings to take basic steps to protect both our own and their privacy.

So please start using open source encryption at the very least. It would be rude not to.

Whistleblower panel discussion at Logan Symposium

Here is a panel discussion I did about whistleblowing at the Logan Symposium in London last November. With me on the panel are Eileen Chubb, a UK health care whistleblower who runs Compassion in Care and is campaigning for Edna’s Law, and Bea Edwards of the US Government Accountability Project.  With thanks to @newsPeekers for filming this.

newsPeeksLIVE whistleblower interview from Annie Machon on Vimeo.