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Barrett, Richard; Parker, Tom --- "Acting ethically in the shadows: Intelligence gathering and human rights" [2018] ELECD 163; in Nowak, Manfred; Charbord, Anne (eds), "Using Human Rights to Counter Terrorism" (Edward Elgar Publishing, 2018) 236

Book Title: Using Human Rights to Counter Terrorism

Editor(s): Nowak, Manfred; Charbord, Anne

Publisher: Edward Elgar Publishing

ISBN: 9781784715267

Section: Chapter 6

Section Title: Acting ethically in the shadows: Intelligence gathering and human rights

Author(s): Barrett, Richard; Parker, Tom

Number of pages: 29

Abstract/Description:

At the outset, it is important to make a clear distinction between domestic and foreign intelligence collection. The techniques practiced in both disciplines are essentially the same, but there are nevertheless important, indeed critical, differences. In democratic societies, domestic intelligence collection is typically a well-regulated activity that takes place within the same broad legal framework as more traditional law enforcement activities. By contrast, foreign intelligence collection is often conducted with deliberate disregard for foreign laws, espionage is after all an inherently illegal activity, but it is not conducted in an entirely lawless manner. In democracies, externally-focused intelligence agencies operate in accordance with the domestic laws of their parent country, even when breaking other nations’ laws overseas. International human rights law is every bit an obligation for the intelligence community as it is for any other field of government, although international law does recognize the legitimate sensitivities that surround issues relating to national security. While recognizing the need for intelligence gathering and acknowledging that gathering such intelligence may require the adoption of extraordinary measures and approaches, international human rights law ascribes limits to how such extraordinary measures can be used. First and foremost, intelligence collection, by its very nature, is likely to infringe aspects of the right to privacy that all individuals enjoy under international human rights law.