Options for more Effective Intelligence Oversight

Modern security and intelligence services use a range of digital powers to pursue their important mandates. Electronic surveillance and hacking are only two such powers. They are highly invasive and rights infringing. Effective checks and balances are therefore imperative to monitor, to challenge and to sanction the abuse of these powers.

There is no shortage of guiding principles, international reports and legislative reforms promoting effective intelligence oversight. Independent, competent, informed, agile and resourceful oversight bodies are often called for. This is an easy call to make and a much harder fact to establish in actual practice. Despite recent measures to further professionalize and democratize national oversight frameworks in Europe and North America, oversight dynamics on the ground continue to be marred by various problems. Among those are ineffective control mechanisms, regulatory capture, a lack of technological knowledge and an insufficient motivation to engage persistently in proactive and unglamorous investigative oversight work. In addition, one can point to no-go-zones and accountability gaps in conjunction with international intelligence cooperation or intelligence activities by agencies and contractors that are not subject to the same oversight regime.

A lack of objective performance indicators and government secrecy make it also difficult to assess, let alone compare, oversight performances. Individual political systems differ substantially and concepts like transparency, accountability and democracy remain contested across time and space. Thus, there is no universal blueprint for intelligence oversight.

Effective intelligence oversight, therefore, remains an ambitious, unattained and vague benchmark - on both sides of the Atlantic. It should be regarded as continuous work in progress and - despite these challenges - much work can be done today to significantly improve oversight effectiveness. This work should not be left to government and legislators alone. As the pace of technological innovation continues to challenge core concepts of intelligence law and oversight practice, a broader set of perspectives are needed to identify and refine options for positive change. It is with this aim in mind that the Stiftung Neue Verantwortung initiated this working group on oversight innovation. Generous support from the William and Flora Hewlett Foundation and the Robert Bosch Foundation allow us to assemble unique expertise. Using collaborative methods, the group aims to identify and refine ideas for better intelligence oversight. What changes to the oversight process or the setup of oversight bodies might make a positive contribution to oversight development?

This discussion paper is meant to set the scene for the collaborative work of this group. It discusses a range of current and future challenges to effective oversight over electronic surveillance before flagging areas where potential solutions may be found.