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May 2015

The Surveillance State and the Right to Privacy

May 30, 2015

The Surveillance State and the Right to Privacy

Two years have passed since journalist Glen Greenwald published an article revealing a mass surveillance program run by the NSA, the details of which were leaked to him by whistleblower Edward Snowden.[1] Much of the public discussion around surveillance activity since that time has centered on various programs run by intelligence agencies, in particular those involving the bulk collection of personal data. In the weeks leading up to the two-year anniversary of the first Snowden revelation, politicians in the UK, U.S. and Canada are debating legislation that governs the mass surveillance powers of their respective intelligence agencies.[2] Opposition to mass surveillance is being vocalized by journalists, academics and civil liberties agencies. Without privacy, opponents argue, freedom of speech is severely compromised, which in turn threatens democratic societies. Proponents, on the other hand, argue the security of democratic societies depends on full and unrestricted access to the personal communications of all citizens. The debate on mass surveillance reflects the line of tension between what is technologically possible and legally permissible. A more recent thread in this debate surrounds the increasing use of encrypted communication by citizens; a trend that Dave Cameron believes is a threat to national security.

In January 2015, Dave Cameron announced his intention to ban encrypted communication apps including iMessage, Snapchat and WhatsApp if they did not provide the government with backdoor access.[3] In a speech delivered by Cameron he asks the audience, “In our country, do we want to allow a means of communication between people which […] we cannot read?” to which he responds with a firm ‘no’.[4] Cameron made it known he wanted President Obama to take the same posture on encryption and to show support by pressuring tech firms such as Facebook and Google to provide government agencies access to their user’s private communications.[5] After meeting with Cameron, Obama declared his position: intelligence agencies should have access to encrypted communication.[6]

In March 2015, the Canadian Journalists for Free Expression (CJFE) held a live conference with NSA whistleblower Edward Snowden that was produced in partnership with the Canadian Broadcasting Corporation (CBC) and the Journalism Department of Ryerson University.[7] During the event the first fully searchable database of the files leaked by Snowden was announced, which is hosted by the CJFE at http://cjfe.org/snowden. During the Q&A period, a Queen’s University graduate student asked Snowden about his experiences of privacy since leaking the files. Snowden said “…I can’t trust devices, I can’t trust electronic communications...there’s no way to really feel safe”. Snowden then suggested that citizens could create some degree of privacy by using encrypted communication tools such SpiderOak, RedPhone and TextSecure.[8]

Wickr is a military grade encrypted communication service designed with the surveillance state in mind. It offers end-to-end encryption, automatic deletion of messages after a set period of time and stores no data on servers. In the first week of May 2015, Wickr co-founder Nico Sell stepped aside to allow a new CEO to take over while she focused on the newly formed Wickr foundation.[9] The mission of the foundation is to “encourage teenagers, dissidents, journalists, and human rights activists to rethink the privacy of their communications”.[10] Scarcely a week later, an open letter signed by over 140 tech firms (including Apple, Google and Symantec) and security experts was sent to President Obama urging him not to support laws that would allow government agencies to access encrypted data.[11] Included in the list of signatures is Philip Zimmerman, creator of Pretty Good Privacy (which Snowden used originally to contact Greenwald) and the Blackphone, a cryptographic smartphone. Days after the letter was submitted, Philip Zimmermann relocated to Switzerland because of concerns about the dystopian surveillance states he believes the U.S. and the UK are moving toward.[12]

In the Queen’s speech on May 27th, the Investigatory Powers Bill was announced, with the promise to expand surveillance powers for intelligence agencies and law enforcement under the premise of protecting citizens.[13] This bill is a revival and expansion of the snooper’s charter, which has previously been known as the Draft Communications Data Bill. Former deputy Prime Minister Nick Clegg is critical of the bill, arguing it threatens fundamental rights of citizens.[14] Former shadow home secretary David Davis pointed to recent political developments in the U.S., where there is growing support for the position that mass surveillance is unconstitutional.[15]

Days before the Queen’s speech, an advanced copy of a report by David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression was published. In the report, Kaye argues “Journalists, researchers, lawyers and civil society rely on encryption and anonymity to shield themselves (and their sources, clients and partners) from surveillance and harassment”.[16] On May 26th, law professors Andrew Murray and Paul Bernal sent all 650 MPs an open letter from 38 of the leading legal academics in the UK, urging an open and democratic debate of an appropriate level of surveillance power.[17] The letter cites the European Convention on Human Rights and the Universal Declaration of Human Rights to argue “…any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and…then be fully and frankly debated in Parliament”.[18]

The Snowden revelations have shown that the technical capabilities of intelligence agencies are far beyond the legal frameworks that govern them, and have been for some time. There is tremendous political support for creating legislation that expands the legal authority of law enforcement to use this technological capacity, most notably for conducting mass surveillance. Moreover, there is a movement towards creating legal frameworks to constrain the technological capacity of private corporations that, for the moment, can protect consumers from invasions of privacy at the hands of their government. The question increasing numbers of citizens are asking themselves is, 'do I want to live in a surveillance state’? If the Cameron, Obama and Harper administrations have their way, citizens will not need to send formal letters to political leaders with their answer. They will have already been recorded through the bulk collection of their emails, Facebook posts, and private text messages.

[1] Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” The Guardian, June 6, 2013, http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-c....

[2] Daniel Leblanc, “Review Anti-Terror Bill in Five Years, Senate Committee Recommends,” The Globe and Mail, May 28, 2015, http://www.theglobeandmail.com/news/politics/senate-committee-recommends... “Reviewing the Surveillance State,” The Economist, May 23, 2015, http://www.economist.com/news/united-states/21651817-america-argues-anew... Damien Gayle, “Theresa May to Revive Her ‘Snooper’s Charter’ Now Lib Dem Brakes Are off,” The Guardian, May 9, 2015, http://www.theguardian.com/politics/2015/may/09/theresa-may-revive-snoop....

[3] Thomas Tamblyn, “David Cameron Wants To Ban... Snapchat?,” The Huffington Post UK, January 12, 2015, http://www.huffingtonpost.co.uk/2015/01/12/david-cameron-wants-to-ban-sn....

[4] Andrew Griffin, “Snoopers’ Charter Set to Return to Law as Theresa May Suggests Conservative Majority Could Lead to Huge Increase in Surveillance Powers,” The Independent, May 8, 2015, http://www.independent.co.uk/life-style/gadgets-and-tech/news/snoopers-c....

[5] Neil McAllister, “David Cameron: I’m off to the US to Get My Bro Barack to Ban Crypto – Report,” The Register, January 15, 2015, http://www.theregister.co.uk/2015/01/15/cameron_wants_obama_to_back_cryp....

[6] Danny Yadron, “Obama Sides with Cameron in Encryption Fight,” Wall Street Journal, January 16, 2015, http://blogs.wsj.com/digits/2015/01/16/obama-sides-with-cameron-in-encry....

[7] “Snowden Live: Canada and the Surveillance State,” Canadian Journalists for Free Expression, March 4, 2015, http://live.cjfe.org/Event/Snowden_Live_Canada_and_the_Surveillance_State.

[8] Transparent Lives, “#AskSnowden: Privacy, Ethics, Bill C-51 & Mass Surveillance,” Transparent Lives: Surveillance in Canada, March 8, 2015, http://www.surveillanceincanada.org/updates/asksnowden-privacy-ethics-bi....

[9] Nicole Perlroth, “Wickr Adds a New Chief Executive and a Nonprofit,” New York Times, Bits Blog, May 6, 2015, http://bits.blogs.nytimes.com/2015/05/06/wickr-adds-a-new-chief-executiv....

[10] Ibid.

[11] Ellen Nakashima, “Tech Giants Don’t Want Obama to Give Police Access to Encrypted Phone Data,” The Washington Post, May 18, 2015, http://www.washingtonpost.com/world/national-security/tech-giants-urge-o....

[12] Juliette Garside, “Philip Zimmermann: King of Encryption Reveals His Fears for Privacy,” The Guardian, May 25, 2015, http://www.theguardian.com/technology/2015/may/25/philip-zimmermann-king....

[13] James Temperton, “Snooper’s Charter Gets Even More Powers in Queen’s Speech (Wired UK),” Wired UK, May 27, 2015, http://www.wired.co.uk/news/archive/2015-05/27/queens-speech-snoopers-ch....

[14] Alan Travis et al., “Wide-Ranging Snooper’s Charter to Extend Powers of Security Services,” The Guardian, May 27, 2015, http://www.theguardian.com/politics/2015/may/27/wide-ranging-snoopers-ch....

[15] Ibid.

[16] David Kaye, “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression” (United Nations, May 22, 2015).

[17] Andrew Murray and Paul Bernal, “Ensuring the Rule of Law and the Democratic Process Is Respected as UK Surveillance Law Is Revised,” May 26, 2015, http://s3.amazonaws.com/ppt-download/academicletterrechangesinsurveillan..., http://www.slideshare.net/AndrewMurray3/academic-letter-re-changes-in-su...?

[18] Ibid.

References:

Garside, Juliette. “Philip Zimmermann: King of Encryption Reveals His Fears for Privacy.” The Guardian, May 25, 2015. http://www.theguardian.com/technology/2015/may/25/philip-zimmermann-king....

Gayle, Damien. “Theresa May to Revive Her ‘Snooper’s Charter’ Now Lib Dem Brakes Are off.” The Guardian, May 9, 2015. http://www.theguardian.com/politics/2015/may/09/theresa-may-revive-snoop....

Greenwald, Glenn. “NSA Collecting Phone Records of Millions of Verizon Customers Daily.” The Guardian, June 6, 2013. http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-c....

Griffin, Andrew. “Snoopers’ Charter Set to Return to Law as Theresa May Suggests Conservative Majority Could Lead to Huge Increase in Surveillance Powers.” The Independent, May 8, 2015. http://www.independent.co.uk/life-style/gadgets-and-tech/news/snoopers-c....

Kaye, David. “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression.” United Nations, May 22, 2015.

Leblanc, Daniel. “Review Anti-Terror Bill in Five Years, Senate Committee Recommends.” The Globe and Mail, May 28, 2015. http://www.theglobeandmail.com/news/politics/senate-committee-recommends....

McAllister, Neil. “David Cameron: I’m off to the US to Get My Bro Barack to Ban Crypto – Report.” The Register, January 15, 2015. http://www.theregister.co.uk/2015/01/15/cameron_wants_obama_to_back_cryp....

Murray, Andrew, and Paul Bernal. “Ensuring the Rule of Law and the Democratic Process Is Respected as UK Surveillance Law Is Revised,” May 26, 2015. http://s3.amazonaws.com/ppt-download/academicletterrechangesinsurveillan..., http://www.slideshare.net/AndrewMurray3/academic-letter-re-changes-in-su...?

Nakashima, Ellen. “Tech Giants Don’t Want Obama to Give Police Access to Encrypted Phone Data.” The Washington Post, May 18, 2015. http://www.washingtonpost.com/world/national-security/tech-giants-urge-o....

Perlroth, Nicole. “Wickr Adds a New Chief Executive and a Nonprofit.” New York Times, Bits Blog, May 6, 2015. http://bits.blogs.nytimes.com/2015/05/06/wickr-adds-a-new-chief-executiv....

“Reviewing the Surveillance State.” The Economist, May 23, 2015. http://www.economist.com/news/united-states/21651817-america-argues-anew....

“Snowden Live: Canada and the Surveillance State.” Canadian Journalists for Free Expression, March 4, 2015. http://live.cjfe.org/Event/Snowden_Live_Canada_and_the_Surveillance_State.

Tamblyn, Thomas. “David Cameron Wants To Ban... Snapchat?” The Huffington Post UK, January 12, 2015. http://www.huffingtonpost.co.uk/2015/01/12/david-cameron-wants-to-ban-sn....

Temperton, James. “Snooper’s Charter Gets Even More Powers in Queen’s Speech (Wired UK).” Wired UK, May 27, 2015. http://www.wired.co.uk/news/archive/2015-05/27/queens-speech-snoopers-ch....

Transparent Lives. “#AskSnowden: Privacy, Ethics, Bill C-51 & Mass Surveillance.” Transparent Lives: Surveillance in Canada, March 8, 2015. http://www.surveillanceincanada.org/updates/asksnowden-privacy-ethics-bi....

Travis, Alan, Patrick Wintour, Nicholas Watt, and Rowena Mason. “Wide-Ranging Snooper’s Charter to Extend Powers of Security Services.” The Guardian, May 27, 2015. http://www.theguardian.com/politics/2015/may/27/wide-ranging-snoopers-ch....

Yadron, Danny. “Obama Sides with Cameron in Encryption Fight.” Wall Street Journal, January 16, 2015. http://blogs.wsj.com/digits/2015/01/16/obama-sides-with-cameron-in-encry....

Surveillance, Snowden and the State Circa May 2015

May 23, 2015

Surveillance, Snowden and the State Circa May 2015

Two years ago Glenn Greenwald revealed information leaked to him by NSA whistleblower Edward Snowden.[1] Publishing details of the secretive mass surveillance program ignited a storm of controversy that Snowden imagined would last a few days before mainstream media moved on to the next big story.[2] As additional information was released it became clear the Verizon program was just the tip of a global surveillance assemblage realized by the collaborative efforts of the intelligence agencies of the Five Eyes (United States, United Kingdom, Canada, Australia and New Zealand).[3] Recent developments in Canada, the UK and the U.S. demonstrate the surveillance debate is as contentious as ever. For three straight days in the first week of May, the politics of surveillance placed each government in turn at the center of international media attention.

Wednesday, May 6^th, 2015

On Wednesday May 6th, Prime Minister Stephen Harper’s Anti-Terrorism Act, Bill C-51, passed the crucial third reading in the House of Commons.[4] As it is unlikely that the Senate will send the Bill back to the House of Commons, it is set to become law in the coming weeks. When the Bill comes into force Canadian intelligence agencies will have greatly expanded surveillance powers. Massive opposition to the Bill is evidenced by protests and petitions led by academics; technology firms; lawyers; journalists and civil liberties groups. During a videoconference in March, Edward Snowden called the Bill a Canadian version of the Patriot Act.[5] Daniel Therrien, Canada’s Privacy Commissioner has stated the expansion of surveillance power ‘goes too far’.[6]

Thursday, May 7^th, 2015

Interestingly, the day after Bill C-51 crossed that major milestone, a federal court of appeal in the United States found NSA mass surveillance goes too far and is therefore in violation of section 215 of the Patriot Act:

"For the foregoing reasons, we conclude that the district court erred in ruling that § 215 authorizes the telephone metadata collection program, and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215.”[7]

On May 20th, Senator Rand Paul spoke for over ten hours in an attempt to filibuster an extension of the Patriot Act. In his speech the Senator referenced Warren and Brandeis[8], arguing ‘the right to be left alone’ is enshrined in the Fourth Amendment and is foundational to civilized society. Without an extension, the Patriot Act ceases to have effect on June 1st. Senator Paul cast doubt on the effectiveness of bulk data collection, which was bolstered by a Department of Justice (DOJ) report released the next day. On May 21, DOJ Inspector General Michael Horowitz published a review of the FBI’s use of bulk data collected through the Patriot Act. The report states: “...the agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders”.[9] In an interview published the following day by the Guardian, Edward Snowden remarked: “…when you monitor everyone, you understand nothing”.[10]

Friday, May 8^th, 2015

On Friday, moments after the Conservatives won a majority in the UK election, Home Secretary Theresa May announced plans to push forward with the Draft Communications Data Bill.[11] Speaking earlier in the year, David Cameron made it very clear he wants any and all communication data to be accessible to intelligence agencies.[12] This would mean encrypted communication applications such as SnapChat, WhatsApp and iMessage would be banned.[13] During a videoconference hosted by Ryerson University in Toronto, Canada, Edward Snowden suggested individuals wishing to protect their ‘right to be left alone’ use encrypted communication to add a layer of privacy to their lives.[14]

In a post 9/11 climate politicians and intelligence agencies continue to find support for mass surveillance through discourses of national security, which feature the shadowy figure of the elusive foreign terrorist. In this framework all citizens are assumed to be suspicious, risky and potentially subversive. Moreover, it is argued that monitoring the personal communication of all citizens is an effective strategy for identifying the rare individuals that present an actual threat to national security. Opponents argue, and the recent findings of the DOJ lend support to the argument, that this amounts to looking for a needle in a digital haystack. The balance of transparency is also concerning: as intelligence agencies gain greater access to information about citizens, they simultaneously become more opaque. Thus, citizens become increasingly reliant on whistleblowers like Edward Snowden for a sense of what their government is capable of. For the moment, citizens in Canada, the U.S. and the UK cannot turn to the state for protection of their privacy. If the rationale underpinning the Patriot Act, Bill C-51 and the Draft Communications Data Bill continue to shape the intelligence landscape, citizens will need to turn away from the state ‘to be left alone’. That is a far more serious threat to national security than messages shared on Snapchat could ever be.

[1] Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” The Guardian, accessed May 22, 2015, http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-c....

[2] Laura Poitras, Citizenfour, Documentary, (2015).

[3] David Lyon, “Surveillance, Snowden, and Big Data: Capacities, Consequences, Critique,” Big Data & Society 1, no. 2 (July 1, 2014): 2053951714541861, doi:10.1177/2053951714541861.

[4] House of Commons, House of Commons Debates (Canada: Parliamentary Assembly, Canada, May 6, 2015), http://www.parl.gc.ca/content/hoc/House/412/Debates/208/HAN208-E.PDF.

[5] Transparent Lives, “#AskSnowden: Privacy, Ethics, Bill C-51 & Mass Surveillance,” Transparent Lives: Surveillance in Canada, March 8, 2015, http://www.surveillanceincanada.org/updates/asksnowden-privacy-ethics-bi....

[6] Daniel Therrien, “Op-Ed: Privacy Commissioner Raises Concerns about Bill C-51 - March 6, 2015,” Office of the Privacy Commissioner of Canada, March 6, 2015, https://www.priv.gc.ca/media/nr-c/2015/oped_150306_e.asp.

[7] ACLU v Clapper (United States Court of Appeals 2015).

[8] Samuel D. Warren and Louis D. Brandeis, “Right to Privacy,” Harvard Law Review 4, no. 5 (1890): 193–220.

[9] Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009(Washington, D.C.: Department of Justice, May 22, 2015), https://oig.justice.gov/reports/2015/o1505.pdf#page=1.

[10] Alan Rusbridger, Janine Gibson, and Ewen MacAskill, “Edward Snowden: NSA Reform in the US Is Only the Beginning,” The Guardian, May 22, 2015, http://www.theguardian.com/us-news/2015/may/22/edward-snowden-nsa-reform.

[11] Damien Gayle, “Theresa May to Revive Her ‘Snooper’s Charter’ Now Lib Dem Brakes Are off,” The Guardian, May 9, 2015, http://www.theguardian.com/politics/2015/may/09/theresa-may-revive-snoop....

[12] Andrew Griffin, “Snoopers’ Charter Set to Return to Law as Theresa May Suggests Conservative Majority Could Lead to Huge Increase in Surveillance Powers,” The Independent, May 8, 2015, http://www.independent.co.uk/life-style/gadgets-and-tech/news/snoopers-c....

[13] Thomas Tamblyn, “David Cameron Wants To Ban... Snapchat?,” The Huffington Post UK, January 12, 2015, http://www.huffingtonpost.co.uk/2015/01/12/david-cameron-wants-to-ban-sn....

[14] Transparent Lives, “#AskSnowden: Privacy, Ethics, Bill C-51 & Mass Surveillance.”

References:

ACLU v Clapper, (United States Court of Appeals 2015).

Greenwald, Glenn. “NSA Collecting Phone Records of Millions of Verizon Customers Daily.” The Guardian. Accessed May 22, 2015. http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-c....

House of Commons. House of Commons Debates. Canada: Parliamentary Assembly, Canada, May 6, 2015. http://www.parl.gc.ca/content/hoc/House/412/Debates/208/HAN208-E.PDF.

Lyon, David. “Surveillance, Snowden, and Big Data: Capacities, Consequences, Critique.” Big Data & Society 1, no. 2 (July 1, 2014): 2053951714541861. doi:10.1177/2053951714541861.

Office of the Inspector General. A Review of the FBI’s Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009. Washington, D.C.: Department of Justice, May 22, 2015. https://oig.justice.gov/reports/2015/o1505.pdf#page=1.

Poitras, Laura. Citizenfour. Documentary, 2015.

Rusbridger, Alan, Janine Gibson, and Ewen MacAskill. “Edward Snowden: NSA Reform in the US Is Only the Beginning.” The Guardian, May 22, 2015. http://www.theguardian.com/us-news/2015/may/22/edward-snowden-nsa-reform.

Tamblyn, Thomas. “David Cameron Wants To Ban... Snapchat?” The Huffington Post UK, January 12, 2015. http://www.huffingtonpost.co.uk/2015/01/12/david-cameron-wants-to-ban-sn....

Therrien, Daniel. “Op-Ed: Privacy Commissioner Raises Concerns about Bill C-51 - March 6, 2015.” Office of the Privacy Commissioner of Canada, March 6, 2015. https://www.priv.gc.ca/media/nr-c/2015/oped_150306_e.asp.

Warren, Samuel D., and Louis D. Brandeis. “Right to Privacy.” Harvard Law Review 4, no. 5 (1890): 193–220.