The Surveillance State & the Right to Privacy

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. 

[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....