International regulation of foreign intelligence liaison

In: http://hdl.handle.net/11427/16437

Open Access

Abstract

Includes bibliographical references ; Edward Snowden is a hero. In 2013, he leaked what can arguably be considered as the greatest quantity of classified and top - secret foreign intelligence in history. The leak revealed the extent of pervasive global government surveillance that has been and continues to be conducted by foreign intelligence agencies such as the National Security Agency (NSA) in the United States and the Government Communications Headquarters (GCHQ) in the United Kingdom. His actions have led to international security sector reform of the international regulation of foreign intelligence liaison. Citizen Four, the 2015 Oscar award-winning documentary, is the story of Snowden. When asked by Glen Greenwald and Laura Poitras, the journalist and documentarian who covered his journey , why he did what he did, Snowden's response was that : '[I]t all comes down to state power against the people's ability to meaningfully oppose that power . . if the policy switches that are the only thing that restrain these states were changed, you couldn't meaningfully oppose these . that hardened me into action.' When closing a TED talk on how we take back the internet, Snowden's idea worth sharing was that: '. [D]emocracy may die behind closed doors but we as individuals are born behind those same closed doors . We don't have to give up our privacy to have good government . We don't have to give up our liberty to have security . By working together, we can have both open government and private lives . . ' The relationship between state power and people's opposition, the individual and democracy, privacy and good government, liberty and security are themes that run throughout this dissertation. They are thematic relationships that underlie the importance of the international regulation of foreign intelligence liaison. The international regulation of foreign intelligence liaison will continue to be shaped by these relationships. Chapter I picks up on these themes by reviewing the international regulation of foreign intelligence liaison as a phenomenon. Part II defines foreign intelligence, part III sets up the objectives of a regime for international law in liberal democracies, part IV recognises the challenges to effective oversight of foreign intelligence agencies and part V maps out different reasons for and uses and forms of foreign intelligence liaison. A core argument is that the inevitable abuse and misuse of foreign intelligence liaison should be regulated through a horizontal accountability mechanism as an international best practice. Chapter II focuses on the international regulation of foreign intelligence liaison through a legal analysis. It draws on the themes by summarising (part II) and critiquing (part III) two landmark judgments having the potential to set an international best - practice precedent that contributes to the international regulation of foreign intelligence liaison. The core argument is that communications interception warrants should be regulated by judicial pre-authorisation. This is a practical application of Chapter I's core theoretical argument mentioned above. Chapter III develops these themes by analysing the international regulation of foreign intelligence liaison through recommendations. Part II explores the regulation of signals intelligence (SIGINT) in South Africa. Part III sets out the national and regional applications of art 17 of the ICCPR with regard to private communications. Finally, by summarising and applying the core arguments of Chapters I and II to Chapter III, part IV recommends legal reform through a General Intelligence Laws Amendment Bill 2015 (the Bill).