Surveillance, Snowden & the State Circa May 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.

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

References:

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

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. Accessed May 22, 2015. 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....

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.

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

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