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2018 | Oxford Research Group Report Defining Remote Warfare: Intelligence Sharing After 9/11

After the terrorist attack of 9/11/2001 on the twin towers in New York City, many states felt the need to safeguard their national security and started or expanded their intelligence relationships with other countries, by sharing (bulk) communications data. However, shared data can be used and are being used for unlawful, unethical or disproportionate actions, by states who do not share the same standards of human rights. This may entail an intelligence sharing state’s direct or indirect responsibility and adjacent liability.

For instance, bulk data relating to communications facilitated lethal drone strikes conducted by the United States (US). Given the number of non-combatant collateral casualties in these strikes, the question arises who should be held accountable? And how can accountability be adequately delivered when intelligence services are sharing such volumes of data so routinely? In several European countries, including The Netherlands, litigation is ongoing concerning the state’s shared responsibility ensuing from sharing of data, for alleged unlawful drone strikes.

States can also covertly utilise shared (bulk) data to circumvent their own domestic legislation on a person’s right to privacy. The European Convention of Human Rights (ECHR) allows for derogation from the obligation to protect an individual’s right to privacy, but only under strict conditions of necessity and proportionality. However, the author questions whether the large-scale interception and databasing of private communications and their automated multilateral sharing can meet the required derogation standards.

The report concludes that in order to mitigate the risk of abuse of shared intelligence and (bulk)data, effective oversight by parliament and by civil society is key.