New York University Public Law and Legal Theory Working Papers

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As the United States goes through yet another cycle of reform of its intelligence services, this article considers the impact that the formalization of intelligence agencies and their powers has had in Britain. Britain long adopted the legal fiction — manifestly false in practice if not in theory — that the representatives of MI5 and MI6 were merely “ordinary citizens”. In fact they exercised considerable power and the moves to establish a legal foundation for those powers and appropriate checks and balances in the past two decades were, as the European Court held, demanded by the rule of law. At the same time, however, Britain demonstrates some of the problems attendant to establishing such a legal regime. These include the question of how the mandate of intelligence services should be defined, as well as the possibility that powers granted by law may be exercised by a far wider range of actors than when a key check was the need to keep those powers and actors secret. Finally, Britain is of interest in showing the limitations of law in regulating socially-pervasive technologies, such as the closed-circuit television (CCTV) cameras that are ubiquitous in London and other cities large and small. The belated effort to regulate CCTV suggests lessons for other new technologies such as biometric identification and DNA databases.

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