Secret intelligence can hurt the innocent. Intelligence workers should have a duty of care to everyone with whom they come into contact. This goes beyond protecting witnesses and respecting the public’s “right to privacy”. Some improvements are possible without impacting operational effectiveness.

The need for more duty of care is one of the top 5 ethical challenges for intelligence agencies.

Trust has been presumed, not earned

Doctors know our bodies and our bad life styles – we tell them because we trust them. There is a high “duty of care”.

Commercial companies target adverts at us based on a wealth of information – we accept that in exchange for free services, such as web browsing.

Intelligence agencies harvest information about us because a miniscule fraction is useful. In exchange they reduce threats. But it’s not an opt-in, and to try and opt-out needs counter-surveillance skills.

It has improved in the past. Laws have been introduced in many countries to limit the surveillance of their citizens, and there is some enforcement.

It can improve again. The state could publish statistical evidence of the extent of surveillance, its success rate, and the infringements by intelligence workers.

Foreign “friends” without a duty of care

Intelligence personnel from friendly nations work in your country’s intelligence agencies. But are the people on secondment used to break the rules the “locals” dare not break?

  • For example, staff in the British GCHQ must not intercept local correspondence for its own people, except when an intrusive surveillance order has been signed. But what happens when NSA staff are seconded to GCHQ?

For an example story, see Judicial oversight – a 2-page story of illegal phone intercepts.

It has improved in the past. Foreign intelligence staff are expected to stay within local laws. And if they don’t, and pass inappropriate intelligence to “locals”, then the locals become culpable.

It can improve again. There needs to be published norms (rather than secret bilateral agreements) on the cooperation between the intelligence services of different countries.

The secret judgement of the innocent

Intrusive surveillance is not invisible surveillance. If you’re observant, you see strangers who don’t fit in, things that change on your computer, and occasional visits of a poltergeist to your home. It could go on for six months, or more.

  • The guilty. People with bad intent frequently know when they are under surveillance. For some it may deter them, which is a cheap way of preventing crime. For others it will heighten their caution.
  • The innocent. You could be completely innocent and come under surveillance because of someone you know, or somewhere you were, or something innocent you did. The intelligence teams will only have snapshots on which to base their judgements about you. You will not be consulted before they judge you, and their judgement may be biased.

See Guilty – 2-page story of intrusive surveillance authorisation.

Do the opinions of secret intelligence workers matter if you are innocent? Potentially, yes. In the UK, they pass intelligence findings to their police contacts then disappear into the shadows. In the USA, the FBI handle both internal intelligence and policing roles. With either approach, you may eventually be seen to be innocent, but the journey could be traumatic.

If you’re under intrusive surveillance, and you know it, you may not know why. Most people have a tendency to guess at the worst. And given stories of rogue groups and black ops, it adds to the fear.

It has improved in the past. Extensive information exists about “real” practices. For example, two previous directors of the UK’s GCHQ have published books documenting practices and the limits of intelligence practices.

It can improve again. But this time, it needs support from people outside the intelligence community. Academics and authoritative writers need to be accurate. At least some fiction writers and dramatists should seek accuracy. (See About Adrian – spy thriller author.) And the intelligence services should use their networks of trusted contacts to help smooth the path.

Covert human intelligence has a history of abusing the duty of care

  • Human assets (“joes”) who are encouraged to spy on their own people, misled about the risks, and offered false promises.
  • Entrapment. Covert operatives who lure a suspect into committing a major crime.
  • Undercover operatives who perform illegal acts, to protect their cover and their lives.
  • Intelligence workers who unilaterally act on what they have learnt, instead of passing it to the police and judiciary.

There are laws covering these, such as the UK’s Intelligence Services Act 1994 for GCHQ and the Secret Intelligence Service. But see Ethical Challenge #4: The failure of laws and norms.

And now there seems to be a push backwards. In the UK there is a proposed Covert Human Intelligence Sources (CHIS) Bill, intended to become law in 2021. The safety of the spy is deemed more important than the crimes performed to protect his or her cover. How may people will suffer for that?

It has improved in the past. For example, in the UK the Regulation of Investigatory Powers Act 2000 (RIP) followed from disastrous intelligence cases during the Northern Ireland “Troubles”.

But when will it improve again? How can it be improved? At the moment, the challenge seems intractable.

Covert Human Intelligence Sources”. UK Secret Service (MI5) website. (Retrieved 02-Nov-2020.)

“Secret Agents and Covert Humans Sources”. Chapter 4 of Principled Spying, The Ethics of Secret Intelligence, by David Omand and Mark Phythian. Oxford  University Press, 2018.