Intelligence in Democracies
International repository of legal
safeguards and oversight innovation
All democracies rely on intelligence agencies to keep their open societies safe. They provide actionable intelligence to decision-makers on a wide range of security and foreign policy matters. Intelligence services master a range of clandestine methods to acquire such information. Some methods – including the electronic surveillance of communications data – are difficult to reconcile with the fundamental principles of democratic governance, such as rule of law, transparency, and accountability. They may also infringe on fundamental human rights and civil liberties, such as the right to privacy as well as the rights to freedom of opinion, of expression, of association, and of assembly.
Nevertheless, all major democracies allow their intelligence services to intercept communications data in enormous quantities – most parliaments have even expanded those powers in recent years. The process of bulk surveillance, that is the untargeted interception, collection, and processing of telecommunications data and its subsequent data management (including transfers), has developed into a standard intelligence practice. In order to ensure public trust and the legitimacy of intelligence governance, democracies need to place all intelligence activities on a solid legal footing and subject them to rigorous and effective oversight.
Unprecedented public debates about intelligence governance following the revelations of Edward Snowden have not changed the fact that all major democracies allow their national intelligence services to intercept communications data in enormous (and growing) quantities. Many people question the efficiency of bulk surveillance practices and their compatibility with fundamental rights. Others worry about its effect on the social fabric of democratic societies.
Yet, the fact is that most parliaments have expanded, rather than curtailed, surveillance powers in recent intelligence reforms. What is more, recent jurisprudence by different national and European courts (the Court of Justice of the European Union with Schrems II, and its Privacy International and Quadrature du Net & others cases, the European Court of Human Rights with Big Brother Watch and others vs. the UK, the German Federal Constitutional Court with its decision on the Federal Intelligence Law (BND Act)) have confirmed that the practice is key for the provision of national security and can be legitimately used by state agencies provided there are rigorous safeguards and effective oversight mechanisms in place.
As the stakes for fundamental rights and democracy are high, it is important to ensure signals intelligence is executed in the least intrusive and most democratically legitimate way. This website offers individual examples of legal provisions and oversight practices that, by comparison, stand out as being more balanced or more innovative responses to the many thorny challenges that ought to be met. It features a wide range of high-water marks from different national surveillance regimes. It shows that each nation – despite constitutional and political differences, and irrespective of individual reform trajectories – has a lot to learn from its international partners.
This website is structured by countries and intelligence oversight phases roughly inspired by the Intelligence Oversight Analysis Cycle. It features a wide range of laudable examples of legal provisions and oversight practice that we identified over the course of our research. Those good practices can be filtered by country, by oversight phase, by whether they are a legal safeguard or oversight practice, and by oversight category. More information on our research and good practices can be found on the Methodology page.
We invite you to browse this database of good practices. This field is evolving, and our repository does not claim to provide an exhaustive list. Thus, we welcome feedback and submissions of additional oversight innovations and promising legal safeguards.
Why this project?
Although intelligence services are globally connected worldwide, the exchange of information and knowledge regarding their governance and control under the rule of law is still limited. Yet, it is precisely in this area, which is so crucial for security policy, that it is important to examine the practices and laws of other democratic countries. However, many people find it very difficult to maintain an overview in this complex field. In addition to different structures and language barriers, it is also in the nature of things that intelligence laws, including the oversight mechanisms, are often incomprehensible.
A comprehensive study published in 2018 by the Stiftung Neue Verantwortung and the Heinrich Böll Foundation provided an important impetus for developing a better overview of good supervisory practices in various democratic countries. The practices from 13 democracies listed there show that exemplary democratic control is certainly compatible with functioning intelligence services. The UN Special Rapporteur on the right to privacy, Prof. Joe Cannataci, further recommends: „The competent authorities in Member States when contemplating the use of bulk powers for surveillance, should first examine, then prioritise and adopt to the greatest possible extent, the measures for introducing the good practices that are recommended in the compendium of Stiftung Neue Verantwortung“ (A/HRC/40/63).
Drawing on this compendium and further updates since then, this website presents good practices that, by comparison, stand out as being more balanced or more innovative responses to the many thorny challenges that ought to be met. It thus features a wide range of high-water marks from different national surveillance regimes. It shows that each nation – despite constitutional and political differences, and irrespective of individual reform trajectories – has a lot to learn from its international partners. These practices, we believe, should be widely promoted, for they increase the legitimacy and effectiveness of a controversial practice that is here to stay.
The website aims to provide a public good and hopes to provide a service to a wide range of actors, including oversight professionals, subject matter experts in parliament, and various ministries, journalists, scientists, as well as the interested public. It intendeds to make intelligence oversight, bulk surveillance mandates, and ways to write safeguards and restrictions into the law more accessible and transparent. The easy juxtaposition between the different countries and the highlighted good practices will provide advocates of more effective oversight with good arguments to consolidate intelligence accountability in Europe and render it more professional.
Intelligence Oversight Analysis Cycle
The first phase of the SIGINT process involves the identification and formulation of intelligence priorities. The process of strategic planning should draw on insights from previous assessments of collected intelligence and their value after analysis.
„data subjects must be afforded appropriate safeguards, enforceable rights and effective legal remedies.“Schrems II, para. 103
„Access must be subject to a prior review carried out either by a court or by an independent administrative body whose decision is designed to limit access to and use of data to what is strictly necesary“Schrems II, Advocate Opinion, para. 293