The Covert Human Intelligence Sources Bill is as I say; a dire day for public safety. That is IF it gets passed. I won’t comment on the likelihood of that happening or anything like that because I am not informed enough on how legislation is decided upon so let’s capture this post under the question: “what happens if the bill is passed into legislation” as a kind of baseline.
Covert Human Intelligence Sources: What are they?
Firstly let’s go into what Covert Human Intelligence Sources are. I should state first that this isn’t a new thing. This type of actor has been around & has been used in the past for matters of national security. So this bill isn’t set out to create this type of actor. Now, what actually is a Covert Human Intelligence Source?
A Covert Human Intelligence Source (CHIS for short) or an “agent” is exactly what it says on the tin. They are sources of information that provide intelligence towards MI5 investigations, they are however not direct employees of MI5. The MI5 states that these agents are “one of the most significant information gathering assets we have”. At their core they are informants. Agents operations are run by specifically trained officers known as “agent handlers” who are responsible for ensuring that agents are operating within the law. In addition to this, they are ultimately responsible for the “safe, complaint and effective handling of agents”. More information on Agent Handlers can be found on the MI5 website.
While Agent Handlers are specially trained for their role, the agents themselves are typically not, in-fact a large majority are not. They mostly come from the community including the criminal community, sound familiar? In some cases they are troubled or perhaps even extremely vulnerable individuals.
MI5 Agents are governed by The Regulation of Investigatory Powers Act 2000 (RIPA), this act also provides a legal definition for an agent. Part II is the act in which the agents are governed, they also have a “Covert Human Intelligence Sources Code of Practice”. It is Part II of RIPA which provides a basis for the use of agents and defines strict rules for their use. As per RIPA Part II, Section 29 the following are reasons for which the use of a CHIS is necessary:
(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
The shortened & less technical version of the above is that use of an Agent is necessary for: the purpose of preventing or detecting a crime or in the interests of the economic well-being of the UK or public safety. The use of agents is subject to independent external auditing by the Investigatory Powers Commissioners Office (although if they’re anything like the Independent Office for Police Conduct they might as well not exist at all. The IPCO publishes regular reports on the three intelligence services activities as per the terms of RIPA.
Covert Human Intelligence Sources: What Do They Do?
Now we know what CHIS’ are, let’s explore what they actually do. It is pretty hard to define what they do because their role in helping MI5 with intelligence can be quite vast. In addition to this very little detail is shared publicly this is almost all down to the fact that the issues in which they provide information are of the utmost secrecy in addition to this the identity of agents must be held to extreme privacy, on a bottom line this is to keep them safe as they often work in very dangerous environments. While there isn’t much information on any recent operations, etc there are examples of past operations on the MI5 website under the CHIS section. In addition to this, there was an interview carried out in 2013 by the Home Affairs correspondent June Kelly who interviewed Eliza Manningham-Buller on the role of agents, I won’t transcribe anything, if you want to listen it is available on BBC.
The Covert Human Intelligence Sources Bill
Now that we have explored Covert Human Intelligence Sources let’s explore the bill itself. At the time of writing this, the bill is currently before Parliament. In short: the bill seeks to amend the Regulation of Investigatory Powers Act (RIPA) which we talked about earlier.
The Bill will insert a new section, 29B into Part II of RIPA, creating a “Criminal Conduct Authorisation” (CCA). CCAs can be granted where necessary for the following purposes:
- in the interests of national security
- for the purposes of preventing or detecting crime or of preventing disorder
- in the interests of the economic well-being of the UK
The necessary grounds are defined in part 5 of section 29B (25). I have taken the liberty of inserting the text from part 5 of the bill below:
(5) A criminal conduct authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder; or
(c) in the interests of the economic well-being of the United Kingdom.
Scrolling further down the bill outlines a list of “relevant authorities” for the purposes of SS. 28, 29 and most importantly 29B. These “relevant authorities” are in essence the authorities of which a CCA can be granted for. Again, I have taken the liberty of inserting the text from Part A1 of the bill below:
RELEVANT AUTHORITIES FOR THE PURPOSES OF SS. 28, 29 AND 29B
Police forces etc
A1 Any police force.
B1 The National Crime Agency.
C1 The Serious Fraud Office.
The intelligence services
D1 Any of the intelligence services.
The armed forces
E1 Any of Her Majesty’s forces.
Revenue and Customs
F1 Her Majesty’s Revenue and Customs.
G1 The Department of Health and Social Care.
H1 The Home Office.
I1 The Ministry of Justice.
J1 The Competition and Markets Authority.
K1 The Environment Agency.
L1 The Financial Conduct Authority.
M1 The Food Standards Agency.
N1 The Gambling Commission.
As you can see, there are an awful lot of these “relevant authorities”, in-fact there are a worrying amount of “relevant authorities”.
Criminal Conduct Authorisations
So what actually is a “Criminal Conduct Authorisation”? Well, at its core it is pretty straight forward. A CCA is an authorisation for criminal conduct to be carried out in the course of or in connection with the conduct of a covert human intelligence source. This essentially means that one of the relevant authorities defined in Part A1 (Above) will have the authority & legal ticket to commit a crime Subsection 8 lists the definition of what criminal conduct is:
(8) The conduct that is authorised by a criminal conduct authorisation is any conduct that—
(a) is comprised in any activities—
(i) which involve criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source, and
(ii) are specified or described in the authorisation;
(b) consists in conduct by or in relation to the person who is so specified or described as the covert human intelligence source to whom the authorisation relates; and
(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described
The bill does not seem to define many restrictions or requirements on the criminal conduct that can be carried out, it merely states that if a CCA is granted then it gives the authority, the legal right to conduct criminal activity. However, it does state that the person seeking a CCA must take into account whether they could achieve what they are attempting to achieve using criminal conduct without using criminal conduct. This is defined in Subsection 6:
(6) In considering whether the requirements in subsection (4)(a) and (b) are satisfied, the person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.
In addition to this, the conduct in which they wish to carry out must not infringe on human rights. This is defined in Subsection 7:
(7) Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).
While it is somewhat comforting for me to read these two parts, it isn’t full proof. We have seen time and time again, governments and authorities abusing the law, bending the rules to get a win because it was “in the interest of the public” - I state again, it is somewhat comforting to read that the conduct has some albeit minimal restrictions but as I said, it isn’t bulletproof. Passing this bill is something that is quite frankly; irreversible. Going down this path is a slippery slope regardless of what legal protections are outlined in the amendment.
Public Concern and Criticism
Of course a bill of such magnitude isn’t without it’s public criticism, hell, you can probably tell I am totally opposed to it too. I’m not online. Multiple NGOs and political organisations have opposed the bill most notable of which is Amnesty International the international human rights advocacy organisation.
Multiple MPs have come out in direct opposition of the bill. A few MPs and Lords have called for clearly defined, explicit limits on the crimes covered by the bill. This would be a reasonable solution if we had any evidence that the government wouldn’t breach those restrictions but what do we have other than their word? Nothing. Therefore, such a solution simply would not work.
In addition to this a large number of editorials have been ran against the bill, my favourite of which was an editorial from The Morning Star said: “Even the equivalent legislation in the United States rules out torture and murder, yet nothing is ruled out in this bill”. That same editorial goes on to mention the assurance from the tories that the power of law-breaking will be limited to specific internally approved cases is not something we should trust which is a point I couldn’t agree with more.
The Future With this Amendment
To round this off I want to discuss the future and a United Kingdom with an amendment like this going through. Honestly, this is a terrifying situation we are currently in. The fact that the amendment features absolutely no restrictions on the criminal actions which agents can take whether it be murder, torture, etc is not only beyond terrifying but it is baffling. This amendment is incredibly dangerous for the public. It is pushing towards levels of authoritarianism reminiscent of medieval England. Not only is this bill incredibly authoritarian it is a point of no return, once a government has legal methods to justify any killing they choose to do that can only end badly. As stated by multiple people already, the rule of law must be equal.
Personally I think more dark times are upon us, I know we are still battling COVID but there is a huge wider battle taking place in terms of personal privacy, personal freedom and government control/authoritarian policies cropping up and not just in the UK, in other countries too.
About The Artwork Used In This Article
You may have noticed that we often like to break the norm where an article's image must be relevant to the article's subject, we find it liberating. In this issue, we push the boundaries a little more with some thought-provoking imagery and by showcasing a specific artist. We like to showcase the work of illustrators, designers, and artists when choosing our images, but have never really showcased the work of a photographer before. We thought it was time to change that. True to our form, we chose a subject matter completely unrelated to infosec.
Welcome to the wonderful world of Spencer Tunick, an artist who has been documenting the live nude figure in public since 1992. Tunick has been arrested five times while attempting to work outdoors, the charges were later dropped but the threat of arrest haunted him constantly.
Determined to create his artwork on the streets, he filed a civil rights lawsuit to protect him and his participants from arrest. In May 2000, the Second US district court sided with Tunick, recognizing that his work was protected by the First Amendment of the US Constitution.
In response to New York city's final appeal to the US Supreme Court, Justice Ruth Bader Ginsburg ruled in favor of Tunick by remanding the case back down, allowing the lower court decision to stand and the artist to freely organize his work on the streets of New York City.
Learn more about Spencer Tunick and his art using the links below: