Neither confirming nor denying that your uncle was a German spy

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In 2008, just as the war her husband started in Iraq following secret discussions with George W Bush was killing 1,000 humans each month, Cherie Booth QC was at the Investigatory Powers Tribunal representing Dr Vincent Frank-Steiner against the Secret Intelligence Service (aka MI6) who were stating a position of ‘NCND’ (neither confirm nor deny) in response to Dr Frank-Steiner’s request for documents relating to his deceased German uncle who he thought might have been a spy for Britain during WW2. Cherie Booth QC’s stance at the tribunal was that “in the context of open government, there needed to be some justification not to disclose”.

Cherie Booth QC’s arguments were dismantled with apparent ease by the counsel for the Secret Intelligence Service. The act of confirming that documents do or do not exist does itself provide information. In Dr Frank-Steiner’s case, saying documents did exist (if indeed they did) might have confirmed that his uncle was a spy – and the Secret Intelligence Service understandably needs to permanently protect the identities of foreign spies acting in the interests of our national security.

‘Neither confirm nor deny’ is also the line GCHQ (Government Communications Headquarters) use in response to requests from the public wanting to know what information has been collected about them as part of GCHQ’s mass invasive surveillance programmes such as Optic Nerve, Tempora and PRISM. GCHQ point inquiring members of the public to Dr Frank-Steiner’s case as a precedent that supports their giving a NCND response. As with Dr Frank-Steiner’s uncle, revealing that information does exist about you, even if that information is not provided, does itself provide information. This seems fair enough. Someone with a plan for terror could keep submitting Subject Access Requests to GCHQ to see if they were on to him yet. So asking GCHQ if they hold any data about you is a complete waste of time.

People shouldn’t need to write to GCHQ of course. There should be a means of scrutinising what GCHQ are doing and ensuring it actually is acting in the public interest. Unfortunately this is extremely difficult because of the wide-reaching exemption certificates successive governments have granted which prevent the Information Commissioner having power over GCHQ and which enable GCHQ to process personal data for purposes which are incompatible with their national security function and to transfer personal data outside the European Economic Area without performing a risk assessment on the adequacy of protection and without the transfer needing to be substantially in the public interest. The exemptions mean that GCHQ’s assumption of the more surveillance data we have the more likely we are to stop terrorists cannot be independently tested, even though more data leads to more statistical errors – seeing patterns where there are none, missing patterns that are there – the wrong people under suspicion, terrorists missed.

In the key Investigatory Powers Tribunal ruling prior to the Dr Frank-Steiner case, Rugby Borough Council were found guilty of carrying out “unauthorised surveillance” on a member of the publics home property by “walking onto his shared driveway during the course of an ongoing investigation… The Council failed to provide any satisfactory reason for this so the Tribunal had no hesitation in concluding that this was unauthorised surveillance”. £2,500 compensation was awarded.

Are GCHQ gallant protectors of our national security? Or are they sneaking on to our property, rummaging through our bins and peeking through our curtains, consumed by a frenzied lust for more data?

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