Intelligence and criminal justice – shift toward convergence?

When David Cameron announced during #WeProtectChildren summit that GCHQ will join forces with National Crime Agency in order to effectively tackle problem of child pornography in Tor he, probably unintentionally, made a rather sweeping statement about role of intelligence agencies in process of fighting crime. GCHQ’s primary function after all is spying on foreign entities and protecting national security of the UK. In fact Intelligence Service Act 1994 names three functions of the agency: mentioned national security with emphasis on foreign and defence policy, economic well-being of the UK (again with emphasis on foreign actors) and in the last place support of the prevention and detection of serious crime. Status of use of the SIGINT in domestic matters is therefore not as obvious as it could be interpreted from Cameron’s words. Even in the UK, which generally have relaxed legal boundaries regarding law enforcement authority, power to authorise interception of communication by GCHQ still lies in the hands of the Secretary of State. Note has to be made that it is not yet clear what will be the form of cooperation between GCHQ and NCA – perhaps GCHQ will provide only technical assistance (i.e. forensic service) without resorting to more aggressive capabilities.

For some types of operations this kind of cooperation is natural – for example counter intelligence efforts most often rely on work of domestic intelligence, or specialised counter intelligence, agencies which disclose gathered materials in the course of court proceedings. However, that is true for intelligence agencies operating within borders of the country by default i.e. MI5 or FBI. The problem is that nowadays governments try to shift, or at least partially redirect, focus of foreign signal intelligence into tackling local threats. This is without a doubt result of use of more sophisticated tools by criminals. It is hard to argue with Cameron’s assessment, that use of Tor requires special efforts from law enforcement as well as use of measures available only to specific entities. At the same time question remains whether already existing regulations keep up with quick changes in actual policy.

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