Overview
Compliance with legal safeguards must be ensured through comprehensive and regular judicial oversight. Examining the effectiveness of data collection measures is equally important. Overseers need to know about this to assess the political value, the cost efficiency, and the need for the reauthorization of warrants. Identifying suitable metrics and methods for this remains a considerable challenge. For example, if data from a certain program or collection stream never feeds into the production of intelligence reports, does this mean that this particular data collection is superfluous and a strain on the limited resources of the intelligence community? Or, in contrast, would this be tantamount to someone cancelling a fire insurance policy simply because, thus far, his or her house has not caught fire?
Relevant Aspects
The scope of the review mandate of the oversight body is a core factor. Effective review presupposes that there are no gaps in the control mandate. Control remits should be defined functionally, covering all aspects of intelligence collection, as recommended by the Council of Europe (CoE).
Intelligence law should also define the role for oversight in assessing the political relevance of finished intelligence operations and assign the duty to the executive branch to demonstrate the efficiency of its bulk surveillance measures. Governments ought to demonstrate the continued added value of SIGINT operations at a time when their intelligence services can also resort to a trove of available open source information.
Sunset clauses, which are a common feature in US law, for instance, are an effective tool to trigger regular evaluations and adaptations of intelligence laws. The durations of such mandatory legislative reauthorizations may vary.
With a view to the highly integrated modern security operations involving many different agencies using similar tools, some lawmakers have rightly extended the remit of oversight bodies to agencies other than intelligence services. In so doing, these oversight bodies are becoming more visible, which, in turn, may help to attract and pool technical expertise. Another good practice that we discuss is the increasing trend toward more regular, substantive exchanges among oversight bodies