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20 August 2020

The Russia report: Three big questions with no easy answers

The dust has settled following the minor political earthquake caused by the publishing of the report into Russian interference in UK politics (the report), but serious questions remain and it is not certain that there will be any easy answers. The report and subsequent commentary highlight three divisive issues in particular, which we discuss below. Arguably consideration of these issues is long overdue, but any attempt to address them is likely to have important implications for the future of our democracy.

What form should legislation take?

The report records that many consider the Official Secrets Acts (the acts) to be unfit for purpose (paragraphs 111–114). As the Director-General of MI5 noted, it is not currently illegal to be a foreign agent in the UK.  He also makes reference to the fact that a portion of the acts is comprised of the Official Secrets Act 1911 which was:

‘drafted for First World War days and was about sketches of naval dockyards’.

He goes on to point out that the acts are not suited to dealing with the subtleties of the modern world, where influence and technological chicanery are often the weapon of choice.

The report’s view is clear: new legislation is needed, with a suggestion that something akin to the US Foreign Agents Registration Act (FARA) could be instituted to combat foreign agents. However, the question remains whether even FARA-style legislation would deal adequately with the modern threat landscape, when so much intelligence work is now conducted remotely.

It may be, therefore, that a more radical legislative agenda is needed to take account of the digital world and its digital battlefields. Any attempt to pursue such an agenda would be fraught with difficulties, not least given the quite proper concern today around the protection of civil liberties and the associated vigilance in respect of unwarranted corporate and governmental intrusion into individuals’ private lives. New legislation will almost certainly grant additional powers to intelligence agencies, but one need only look at the backlash against the 2016 Investigatory Powers Bill (the infamous ‘Snoopers’ Charter’) to see the associated political risk.  Future legislation will undoubtedly be the subject of fierce debate as the line between security and privacy is drawn.

What role should our intelligence agencies play in democracy?

Perhaps the most explosive revelation came in paragraph 44 of the report, where it was stated that the government:

‘had not seen or sought evidence of successful interference in UK democratic processes’.

While much has been written about this finding, most of that commentary has fallen out along party-political lines, rather than seeking neutrally to address the core issues.

It should be noted that while the report highlights governmental reluctance to involve intelligence agencies in democratic processes, it also records the ‘extreme caution’ in the world of intelligence to get involved in such processes (paragraph 40). Clearly, there is a live and interesting question about the nature and extent of the role we wish the intelligence services to play in our democracy.

This question is a difficult one, and the answer to it will help shape any new legislation which is passed in due course, with provisions not only to provide new or updated powers, but also to update the public role of the intelligence services.

To understand the reticence of the intelligence community to weigh in on democratic issues one need only look at how intelligence has become politicised in the USA. The initial intervention of then FBI director James Comey in the 2016 Presidential Election (in relation to the Hillary Clinton email scandal), and the subsequent war of words fought between President Trump and various members of his intelligence agencies, highlights the potential risks of a more active role, most notably a significant decrease in trust (as discussed in this article). At a time when intelligence is coming under ever increasing scrutiny, and maintaining public confidence and cooperation is key, it is understandable that the intelligence community will wish to weigh the benefits of any intervention against its potential ramifications.

How should the digital world be managed?

While the report’s primary focus was on Russian interference in UK politics, it is impossible to ignore the emphasis placed specifically on the digital world.  It is clear that political interference today is achieved principally through the internet (although older methods still prevail on occasion – for example, in the Salisbury attack and the annexation of Crimea).

In that respect, the report looks at the UK’s approach to both offensive and defensive cyber, and a common theme emerges in the form of scepticism as to whether there is sufficient accountability (paragraphs 22 and 37). Indeed, the picture painted by the report may well lead to the conclusion that the UK’s approach to cyber is fragmented, with the Ministry of Defence and GCHQ running the UK’s offensive operations, and the Defending Democracy programme (which will seek to protect democratic discourse and processes from a variety of threats including cyber) involving at least ten separate Government teams, as well as the Electoral Commission, and the Information Commissioner’s Office.

While not explicitly dealt with in the report, the UK will need to ensure that it does not focus exclusively on the shadowy realm of intelligence. The digital world is now part of our vital infrastructure – a fact thrown into sharp relief by the events of the past six months – but it is far from secure. It is estimated that Distributed Denial-of Service (DDoS) attacks (a common tool used by unscrupulous actors to disrupt internet traffic often to extort money from businesses) may cost the UK economy £1 billion, and with the number of DDoS attacks increasing by 542% in Q1 2020 compared to the previous quarter (297% compared to Q1 2019) it seems reasonable to suggest that this cost may well continue to rise.

The emerging policy position must recognise that protecting our economy goes hand-in-hand with protecting democracy.  After all, it is no secret that people’s political decisions are affected greatly by their economic interests. This reasoning underpins the use of such traditional tools as trade embargoes, and so any foreign agent wishing to disrupt the political decision-making of a nation may well look at disrupting the digital world as a way of interfering by proxy.

There is no question that the UK’s response to the changing technological landscape will necessarily involve many different players, but it could be argued that a clearer set of strategic goals and distinct lines of accountability are needed. Given that effective measures are likely to be wide-ranging in nature, accountability becomes especially important. Policing the covert world has never been an easy task, and those who wield significant power must not be afforded the protection of confusion and plausible deniability when being asked to justify their actions.

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