Democracy and State Secrets

Calibrating Public Accountability in Modern Intelligence Gathering

This comparative law project examines the impact of the Internet and digital communications on networked accountability mechanisms in contemporary democracies (ie Germany, USA, UK, and Canada). Concentrating on modern-day intelligence gathering trends, my principal re­search question is whether mass ‘full-take’ information surveillance (and its legal authori­sa­tion) is consistent with established principles of self-governance, principally theories of sepa­ra­tion of powers, judicial review, and democratic accountability. The scholarship addressing these issues is scarce and exposes a necessity for more integrative methods and synthetic thinking. Given that public accountability theory itself has been slow to progress, new ideas and innovative scholarship are urgently required to prevent fast-paced technological devel­op­ments from overcoming our global freedom of expression laws, conceptual models, and cen­turies-old accountability networks and constitutional structures. Aimed at the intersections of digitization, domestic intelligence gathering laws, and the efficacy of our public accountability networks, this project addresses a combination of contextual, legal, and normative questions reflecting the Department’s research agenda. To position scholarly debate within an appro­pri­ately sophisticated framework, this project incorporates a methodological blend of function­al­ism, interdisciplinarity, democratic theorising, statutory interpretation, and doctrinal analysis. Preliminary results indicate that due to radical changes in our digital media landscape, both the institutional press and the judiciary remain critically undertheorised as accountability mechanisms. By failing to account for technical ex ante strategies that function as judicial prior restraints without the need for ‘open-court’ proceedings, increasing risks of privatised government censorship and regulatory capture present novel lower-salience structural threats to our democracies. Substantive outcomes will include a revised, more rigorous understanding of accountability dynamics in contemporary intelligence gathering, an improved ‘systems-based’ model for evaluating democratic accountability dysfunctions, and important public policy and law reform recommendations applicable to both common law and civil law jurisdictions.