GUARDINT Oversight and intelligence networks: Who guards the guardians?
Empirical Social Research
Public Law
Sociological Theory
Final Report Abstract
6. Allgemeinverständliche Darstellung der wichtigsten wissenschaftlichen Fortschritte und ggf. ihrer Anwendungsaspekte To summarise, there are four advances that result from the German team’s collaborative engagement in the transnational GUARDINT research project. (1) Out of the niche: Establishing Social Science Perspectives on Intelligence Oversight First, the project adapted and updated the question of “who guards the guardians” for democratic societies in the digital transformation. We define intelligence oversight as a set of practices that scrutinise, evaluate, contest and sanction as well as publicise the activities of intelligence agencies with the goal of preventing future misconduct or discovering past misconduct. Our concept of oversight draws on both democratic theory and the sociology of fields and social practices. With this strong link to social science theory and by the use of a practice-focused definition, the researchers furthered basic research, integrating a formerly niche topic, largely subsumed to the anglo-american intelligence studies, into different research streams of social sciences. The project contributed to transdisciplinary Surveillance Studies and also referenced and adjoined the comparative study of democracies, political science research on the digital transformation, and International Relations. The progress in basic research has practical relevance and has already proven highly valuable for the team’s policy advisory activity and analysis of current affairs (see III.3). Establishing social science perspectives, we found two ideas to be decisively helpful for the research of intelligence and its oversight. First, recent interventions against “methodological nationalism”, i.e. against the exclusionary focus on national units, were highly relevant to our work. We thus integrated a decisive transnational angle into our research, conceptually and in practice, for instance by implementing indicators for the transnational scope of oversight in the index. Second, the increasing relevance attributed to CSOs reflects the dynamics of the early 21st century’s oversight activities. For example, Germany’s comprehensive intelligence reform followed by the successful strategic litigation of journalists and CSOs; or the Pegasus case, which was in its extent publicised by CSOs and resulted in a transnational investigative committee at the European parliament (investigation ongoing). (2) Criteria for the assessment of democratic oversight and its contemporary dynamics Second, based on plural concepts of democracy and empirical analysis of oversight practices, we formulated a set of criteria and concrete indicators against which it is possible to measure how democratic societies oversee digital surveillance by intelligence agencies. As such, the index contributes to the establishment of applicable and adjustable standards for intelligence oversight. The index consists of two 15 dimensions, delegated and civic oversight (see overview in II,1). It therefore includes civic oversight activities by journalists, CSOs, strategic litigators, and political campaigners, as well as the affordance of rights and remedies to individuals. Delegated oversight conceptualises the activity of parliamentary, judicial, and expert bodies mandated to perform oversight by law. The output of criteria for the measurement of intelligence oversight pays specific attention to transnational intelligence practices and their oversight throughout. As we show, the cross-country comparison can in fact include the measurement of transnational scope of oversight activity, and its possible variance (see Annex, attachment 4). The research project provides empirical data to illustrate the assessment of democratic oversight and its contemporary dynamics. Previous empirical work on oversight was rarely, if ever, comparative, which is why we introduced a systematic comparison of civic oversight practices across the three pilot case countries (France, UK, Germany). The empirical data illustrating commonalities and differences across these countries was well received at DVPW and EISA panels, and a revised publication is resubmitted. Survey results are already available open access and searchable, to maximise the extent to which further research can interlink and further comparative research. (3) Transfer of research into policy debates The collaborative set up of team members at the Berlin Social Science Centre (WZB) and the Stiftung Neue Verantwortung (SNV), the latter specialised in political advising in the field of intelligence oversight, was a decisive asset for the transfer of research into policy debates throughout the project’s duration. Actors in the field who are often difficult to reach due to their time constraints and, at the state level, particularly due to classifications levels involved in their work, frequently became aware of GUARDINT and were very interested in the research undertaken at the project. Most evidently, people who worked for delegated oversight bodies found the criteria for the comparative measurement of oversight to be of pivotal interest. Practitioners contacted and met with GUARDINT members for talks about the developed standards and variances in oversight (see II,1 – Contributions to Policy Debates & Outreach). On the national level, the team also provided written and oral testimony on intelligence legislation and reform at several instances to Parliament (see II,1). At the European and international level, GUARDINT specifically aimed at integrating formerly fragmented national discourses on surveillance and intelligence oversight. Outputs of such efforts were reports, a guidance note (on Convention 108), and the provision of expertise to the OECD (listed in II,1). The transfer of research into policy debates was focused on norms and standards of oversight as well as neighbouring topics such as surveillance and data protection, and security politics. The GUARDINT team also met with civic intelligence oversight professionals, that is, with strategic litigators, journalists and political campaigners to speak about developed criteria for measurement of oversight. (4) The provision of resources for further research The fourth area in which the project substantially advances research on oversight is the provision of resources and research material for further research on the topic. We completed the composition and publication of an open access database that contains legal documents on surveillance by intelligence agencies, structured by country, type and time of publication 16 (https://data.guardint.org/). The database not only advances comparative research in the field of intelligence oversight but also functions as a readily available frame of reference for intelligence oversight practitioners, combining comprehensive and searchable information from different countries. In cooperation with the French team, we also contributed to the curation of the timeline of intelligence surveillance scandals and their interrelation with oversight. The combination of a multimedia presentation (shorturl.at/egLRS) with more detailed information on the cases (https://guardint.org/timeline-ofintelligence-scandals/), too, has the function of facilitating the ongoing research in the emerging field of comparative studies of intelligence oversight, next to its use for a broader interested public. These tools, together with the provision of criteria as specified in the intelligence oversight index, were specifically developed to facilitate and ensure basic research in the field of intelligence oversight. 7. “Überraschungen” im Projektverlauf und bei den Ergebnissen The norms, legal standards and oversight of government access to and subsequent processing of personal data (often held by the private sector) has attracted unprecedented policy attention in the wake of landmark decisions handed down by the European Court of Justice (ECJ), the European Court of Human Rights (ECtHR) and national courts, such as the German Federal Constitutional Court (BVerfG). Given that questions of data handling and access rights, oversight and redress extend beyond national security agencies and people but also affects most business models that increasingly rely on the “data free flows with trust”, some decisions, such as the ECJ’s decision in Schrems II which found U.S. national intelligence legislation inadequate for the protection of key European rights and freedoms, triggered profound new debates on intelligence governance and effective oversight. So did key reviews of German, Swedish and UK intelligence legislation by the BVerfG and ECtHR and BVerfG in 2020 and 2021, respectively. In turn, this brought momentum to new international debates on good standards and norms in forums such as the Council of Europe, the Organisation for Economic Cooperation and Development (OECD) which, given government secrecy and the insistence by many governments that these matters are the sole prerogative of national security decisions, not suitable for international conventions. Here, the quasi-harmonisation of standards (at least with regard to compelled access, see Privacy International v. UK decision) among EU Member States as promoted by the ECJ was unfathomable even five years ago. We have seen greater preparedness by national governments to discuss matters of intelligence governance and we have seen the instalment of new forms of oversight, notably judicial review mechanisms, that were not possible in some countries, such as Germany, a few years ago. This, in turn, has gradually contributed to the professionalisation and normalisation of a political field that tended to be portrayed as unique and incomparable to other domains by many decision-makers not wishing to embrace open debates and good standards of public service. For our own research, this has meant, however, that the precise assessment and measurement of formal or delegated intelligence oversight bodies was premature in the sense that key institutions and potential survey partners were either being fundamentally reformed or replaced. It was thus not only less feasible but also not particularly sustainable to assess oversight mechanisms that were in the middle of fundamental reforms. Due to this, the team agreed to focus primarily on civic oversight in empirical research while simultaneously expanding the conceptual framework for delegated oversight as the contours of key intelligence oversight reform became more visible. 8. Hinweise auf mögliche Erfolgsberichte in den Publikumsmedien 17 The work of our research consortium attracted not just the attention of fellow researchers, oversight practitioners and government staffers but also journalists. For example, we can refer to stand-alone media reporting on our policy papers and reports: - Der Spiegel has published a piece discussing our policy paper “BND Reform, die Zweite”, here: https://www.spiegel.de/netzwelt/netzpolitik/nach-bnd-urteil-studie-fordert-zentraleskontrollgremium-fuer-alle-nachrichtendienste-a-83596ca3-1173-4b3a-9c0a-4ae0139a2bc7 - Der Tagesspiegel has reported on our policy paper on the standards for data protection and oversight that impede EU-US data sharing, here: https://background.tagesspiegel.de/digitalisierung/datenfluesse-in-die-usa-wie-geht-es-weiter - Netzpolitik.org’s reporting on intelligence reforms also prominently referred to our work here: https://netzpolitik.org/2021/massenhafte-kommunikationsueberwachung-geheimdienst-gesetzemuessen-auf-den-pruefstand/ In addition, our team appeared in podcasts, such as Deutschlandfunk Breitband, discussing the use of spyware Pegasus and the challenges this brings for those trying to promote and establish government accountability, listen here: https://www.deutschlandfunkkultur.de/breitband-sendungsueberblick-pegasus-liest-mit-100.html Furthermore, the Royal United Service Institute (RUSI) referred to GUARDINT research and publications, such as the policy report on data-driven intelligence oversight and Ronja Kniep’s piece on about.intel, in its work on “Artificial Intelligence and UK National Security” – a report that is shared directly with members of the UK cabinet of government ministers. See the report, here: https://rusi.org/explore-our-research/publications/occasional-papers/artificial-intelligence-and-uk-nationalsecurity-policy-considerations
Publications
- 2020. BND-Reform, die Zweite: Vorschläge zur Neustrukturierung der Nachrichtendienst-Kontrolle (Stiftung Neue Verantwortung: Berlin)
Wetzling, T. and Moßbrucker, D.
- 2020. Datenbasierte Nachrichtendienst-Kontrolle: Agenda für mehr Wirksamkeit (Stiftung Neue Verantwortung: Berlin)
Vieth, K. und Wetzling, T.
- (2021) Wer überwacht die digitale Überwachung? Die Kontrolle der Geheimdienste als Gradmesser der Demokratie. WZB-Mitteilungen, (171), S. 15-17
Kniep, Ronja
- (2021). Herren der Information. Die transnationale Autonomie digitaler Überwachung. Z Politikwiss.
Kniep, R.
(See online at https://doi.org/10.1007/s41358-021-00286-z) - 2021. Caught in the Act? An analysis of Germany’s new SIGINT reform (Stiftung Neue Verantwortung: Berlin)
Vieth, K. and Wetzling, T.
- 2021. Solving the Transatlantic Data Dilemma: Surveillance Reforms to Break the International Gridlock (Stiftung Neue Verantwortung: Berlin)
Wetzling, T, Sarkesian, L. and Dietrich, C.
- (2023): The Code of Silence. Transnational autonomy and oversight of Signals Intelligence. In: Didier Bigo, Emma Mc Cluskey, Félix Treguer (eds.). Intelligence Oversight and Democratic Control: Who Guards the Guardians?, Routledge New Intelligence Studies, Hager Ben-Jaffel and Sebastian Larsson
Kniep, R.
