29 Jan 14 | Digital Freedom, News and features, Politics and Society, Religion and Culture
The revelations by Edward Snowden last June about massive, unaccountable surveillance by the US National Security Agency (NSA) and its British counterpart GCHQ have raised one vital question. Is there a global right of privacy? If so, what form might it take?
In November 2013, Kenneth Roth, the executive director of Human Rights Watch, argued in favour of a global human right of privacy. “All [governments] should acknowledge a global obligation to protect everyone’s privacy, clarify the limits on their own surveillance practices (including surveillance of people outside their own borders), and ensure they don’t trade mass surveillance data to evade their own obligations.”
Fundamental to this discussion is the role technology has played in outpacing legal oversight. In April 2013, the report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression had one express focus: To examine “the implications of states’ surveillance of communications in the exercise of the human rights to privacy and to freedom of opinion and expression.” In the Rapporteur’s view, it was clear that the march of technology, with its move to low cost mobile communications as opposed to previous fixed-line methods had “increased opportunities for state surveillance and interventions into individuals’ private communications.” Borderless surveillance has become a reality.
In their remarkable article on privacy in the Harvard Law Review of 1890, Louis D. Brandeis and Samuel D. Warren argued that, “The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade”. Through sharp, analogical reasoning, the jurists decided that grounds for a civil wrong in breaching privacy might be found. The law had to keep pace with the type of technology involved. In their times, it was the telegraph.
International law accepts that a right to privacy exists and should be protected. Article 12 of the Universal Declaration of Human Rights (1948) makes it explicit. The International Covenant on Civil and Political Rights, through Article 17, has the same effect. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms has spawned rich jurisprudence on the subject. The Organisation for Economic Cooperation and Development, and the Council of Europe, have various guidelines and protocols in place for data protection.
That said, common law countries such as Britain and Australia have shown a reluctance to find a genuine civil wrong when someone’s privacy is violated. Preference is given to finding a breach of confidence. In the United States, there is a reasonable expectation under the Fourth Amendment that one’s privacy will be protected, though it has no application to foreigners. Civil code countries have shown a greater willingness to identify the human body as inviolable before unwarranted interference.
Analysts have argued that a protected global right to privacy is urgent because the global surveillance state has itself become a reality. It is not merely sufficient to restrain through warrant and judicial control the actions of the NSA regarding American citizens. As David Cole of the Georgetown University Law Centre argues (Just Security, Oct 29, 2013), focus must lie beyond the limited social contract between US government and its citizens. The rights of non-US citizens to privacy, in other words, extra-territorial rights, matter. Privacy rights are transnational issues, requiring transnational measures of protection.
In the United States, President Barack Obama has at least acknowledged the globalised nature of the surveillance problem, and the need for global protections that consider the rights of non-US citizens as well. His latest suggestions can be found in Presidential Policy Directive 28 (PPD-28.
A notable feature in PPD-28 is the restriction on monitoring foreign citizens, which might be termed the “Merkel” clause after it was revealed that the German Chancellor’s phone was being monitored by the NSA. Section 4 of PPD-28 also serves to create the machinery by which the US will form a “point of contact for foreign governments who wish to raise concerns regarding signals intelligence activities conducted by the United States.”
In these proposals, Obama fails, as executive director of Amnesty International USA Steven W. Hawkins explains, to accept “the abusive nature of mass surveillance or put international human rights standards at the centre of US policy”. They do not so much curtail surveillance as simply limit aspects of its reach. Executive Order 12333 still affords Obama powers to authorise surveillance programs without judicial review. The law is still kept at arm’s length.
The normalisation of Stasiland is the great feature of the twenty first century – no political system has been spared that, largely because the technological means have outpaced the legal regulations. A collective of some 500 writers, among them Margaret Atwood, Martin Amis, and Don DeLillo, have argued via a petition in December 2013 that, “A person under surveillance is no longer free; a society under surveillance is no longer a democracy. To maintain any validity, our democratic rights must apply in virtual as in real space.” It is time to consider not merely limits to the bulk surveillance, but enforceable obligations on the part of states to abide by a global rule on privacy.
This article was posted on 29 January 2014 at indexoncensorship.org
21 Nov 13 | Digital Freedom, India
CONTENTS
Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion
Full report in PDF
(3) SURVEILLANCE, PRIVACY AND GOVERNMENT’S ACCESS TO INDIVIDUALS’ ONLINE DATA
Recent revelations in the Hindu have raised concerns over the extraordinary extent of domestic surveillance online, without any legal and procedural framework to protect privacy.[30] This chapter looks at how the Indian government’s surveillance and access to individuals’ online data presents a threat to freedom of expression. When people know or assume that governments or companies are monitoring their private communications, they are less inclined and less likely to communicate freely. The UN’s Special Rapporteur on Freedom of Expression Frank La Rue delivered a report to the Human Rights Council outlining how state and corporate surveillance undermine freedom of expression and privacy.[31] His report states that “Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other.”
At the end of 2012, major telecom companies in India agreed to grant the government real-time interception capabilities for the country’s one million BlackBerry users. The Indian government has consistently requested that major web companies set up servers in India to allow them to monitor local communications.[32] Such surveillance capabilities potentially breach international human rights standards and have been subject to court challenges. In 1996, the Indian Supreme Court held that the citizen’s privacy has to be protected from abuse by the authorities.[33] Yet, Section 69 of the IT Act gives the state surveillance powers in the interest of national security or “friendly relations with foreign states”.[34]
In April 2013, India began implementing a $75 million Central Monitoring System (CMS) that will allow the government to access all digital communications and telecommunications in the country.[35] Content covered by the CMS will include all online activities, phone calls, text messages and even social media conversations. The scope of the programme, in development since 2009, is still to be determined, but some worry about the lack of safeguards against abuse in its implementation. Pranesh Prakash, Policy Director at the Centre for Internet and Society, argues: “In India, we have a strange mix of great amounts of transparency and very little accountability when it comes to surveillance and intelligence agencies.”[36]
Opponents of the system and human rights advocates worry the government will abuse the CMS to monitor or arrest political critics rather than to enhance national security as intended.[37] Arguably, CMS may violate Article 21 of the Constitution guaranteeing “personal liberty”. Concerns remain that without comprehensive privacy laws in India, the system will not be sufficiently accountable, and could chill free expression. Cynthia Wong, senior Internet researcher at Human Rights Watch, says: “The Indian government’s centralized monitoring is chilling, given its reckless and irresponsible use of the sedition and Internet laws. New surveillance capabilities have been used around the world to target critics, journalists, and human rights activists.”
In addition, new laws passed in April 2011 expanded internet surveillance in cybercafés, the primary point of access for the majority of Indians who cannot afford private computers or smartphones (see the section on access). Furthermore, Indians are required to register their real names to activate SIM cards and mobile and internet service providers (ISPs) are required to grant government authorities access to user data. Requesting user data becomes problematic when data is used for prosecuting free speech online and stifling political criticism (see section on criminalisation of online speech and social media).
India is one of the worst offenders globally both for takedown and for user requests, though on user information it is ranked after the US. The Google Transparency Report shows that India ranks second – after the United States – in the number of government requests for users data.[38] In August 2013, Facebook released a similar report. During the first six months of 2013, India ranks second in number of total requests (3,245 requests) and Facebook produced data in 50 percent of the cases.[39] It is possible that data requested by the government will be used in criminal prosecutions for defamation, hate speech, or harming “communal harmony”. This is problematic because these laws in themselves are too vague and broad and do not protect freedom of expression adequately, resulting in disproportionate arrests and prosecutions merely for the expression of views on a blog, liking a post on Facebook, or writing a political tweet. Without privacy law and safeguards to protect data, the collection and retention of such data can be misused and generate a chilling effect among the Indian population.
Many Indian MPs are aware of the need for a legal framework to protect the privacy of Indian citizens. In 2011, Parliament passed new data protection rules, but there is still no privacy law in India. Privacy is a fundamental human right and underpins human dignity and other key values such as freedom of association and freedom of expression. Key changes suggested by internet advocates include a Privacy Bill to address data protection and surveillance, and the establishment of a Privacy Commission.[40] It is time for the Indian government to take better account of the right to privacy and protection from arbitrary interference with one’s privacy.[41] Addressing mass surveillance and unwarranted digital intrusions in India are both necessary steps to fight self-censorship and promote freedom of expression.
CONTENTS
Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion
This report was originally posted on 21 Nov 2013 at indexoncensorship.org
[30] Shalini Singh, The Hindu, ‘India’s surveillance project may be as lethal as PRISM’ (21 June 2013), http://www.thehindu.com/news/national/indias-surveillance-project-may-be-as-lethal-as-prism/article4834619.ece accessed on 24 September 2013.
[31] Brian Pellot, Index on Censorship, ‘UN report slams government surveillance’, http://www.indexoncensorship.org/2013/06/government-surveillance-apple-google-verizon-facebook/ accessed on 10 September 2013.
[32] Firstpost, ‘Telecos agree to real-time intercept for Blackberry messages’ (31 December 2012), http://www.firstpost.com/tech/telecos-agree-to-real-time-intercept-for-blackberry-messages-573612.html accessed on 10 September 2013.
[33] Pranesh Prakash, New York Times, India Ink (blog), ‘How Surveillance Works In India’ (10 July 2013), http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/?_r=0 accessed on 10 September 2013.
[34] The Information Technology Act, Amendment, 2008, Section 69, ‘Directions of Controller to a subscriber to extend facilities to decrypt information’, http://cca.gov.in/cca/sites/default/files/files/itact-amendments2009.pdf accessed on 23 September 2013.
[35] Times of India, ‘Government can now snoop on your SMSs, online chats’ (7 May 2013), http://timesofindia.indiatimes.com/tech/tech-news/internet/Government-can-now-snoop-on-your-SMSs-online-chats/articleshow/19932484.cms accessed on 5 September 2013.
[36] Pranesh Prakash, New York Times, India Ink (blog), ‘How Surveillance Works In India’ (10 July 2013), http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/?_r=0 accessed on 10 September 2013.
[37] Mahima Kaul, Index on Censorship, ‘India’s plan to monitor web raises concerns over privacy’, http://www.indexoncensorship.org/2013/05/indias-plan-to-monitor-web-raises-concerns-over-privacy/ accessed on 5 September 2013.
[38] Google, ‘Google Transparency Report’, http://www.google.com/transparencyreport/userdatarequests/IN/ accessed on 5 September 2013 and 15 November 2013.
[39] Facebook, ‘Global Government Requests Report’, https://www.facebook.com/about/government_requests accessed on 5 September 2013.
[40] In 2013, the Centre for Internet and Society drafted a Privacy Bill addressing data protection, surveillance and interception of communications. Centre for Internet and Society, ‘Privacy (Protection) Bill, 2013: Updated Third Draft’ (30 September 2013), http://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-updated-third-draft accessed on 4 October 2013.
[41] The Universal Declaration of Human Rights, Article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” http://www.un.org/en/documents/udhr/
25 Oct 13 | Digital Freedom
Last year’s Internet Governance Forum in Baku, Azerbaijan proved controversial due to the choice of host. This year’s event, in Bali, Indonesia was bound to be contentious, after Edward Snowden’s leaks on the US’s PRISM programme. PRISM and TEMPORA (the UK system of mass surveillance) were a lightening rod for general discontent from activists who feel an increasing sense of ill ease over the state of internet freedom. Many of the sessions were bad-tempered affairs with civil society rounding on the perceived complacency of government officials from democracies who refused to state their opposition to mass state surveillance in clear enough terms.
At an event hosted by the Global Network Initiative, Index on Censorship, andPakistan’s Centre for Social and Policy Analysis, a US government official was heckled by the audience when he attempted to justify PRISM as an anti-terrorism measure. Of particular concern for delegates was a sense that PRISM is now being used by less democratic and authoritarian states to justify their own surveillance systems. The Chinese were quick to point out the ‘double standards’ of the US at this workshop, following it with appalling doublespeak to gloss over their poor domestic record on human rights violations. A point I challenged them on in no uncertain terms.
Participants in the workshop from across the globe from Pakistan to South Africa stated their concern that a race to the bottom is beginning with new surveillance capacities being debated in countries such as Russia, New Zealand and the UK. Other areas of concern at the workshop included the increasing use of filters at ISP level (in particular in Indonesia where a significant number of ISPs are adopting filtering) and the pressure now felt by Telcos from states who are imposing burdensome requirements to filter content. One worrying prospect is that the ITU will succumb to a push to ensure Telcos do not distribute ‘blasphemous’ content which could lead to the full Balkanisation of the internet.
Although the outlook is bleak, civil society is pushing back at corporations and governments. Bytes for All in Pakistan has done impressive work in chronicling censored online content. A number of coalitions strengthened at the IGF with closer co-operation between international NGOs to take on mass state surveillance. This weekend, a number of US NGOs will rally in Washington DC against the PRISM programme with thousands expected to take to the streets. Index on Censorship’s #DontSpyOnMe petition of 7,000 signatures was this week sent to Lithuanian President Dalia Grybauskaitė, who currently hold the Presidency of the Council of the EU, and Herman van Rompuy, President of the European Council. The EU heeded our calls to discuss mass surveillance at the Council of Ministers meeting – a big success. The pressure on corporations is being felt too, Telcos came under particular fire for their willingness to install surveillance equipment in their networks. Yet, many are beginning to speak publicly over the pressures they feel from states and the need for transparency so their users are at least aware of the surveillance they may be subject to and so can adjust their behaviour accordingly. Meanwhile, Google launched new tools to illustrate the threats the internet faces. The Digital Attack Map is a realtime website displays DDOS attacks and where they originate from – useful in tracking attacks on civil society websites from state-run or criminal botnets. Google also launched a project to provide free, secure web hosting for internet activists under attack.
One of the strengths of the IGF is the broadness of the workshop programme. From the challenges felt by the disabled online, minority rights online, through to bridging the ‘digital divide’ between the rich and poor both internationally and internally within even wealthier countries, the IGF covered a significant amount of ground. Yet, one of the big challenges to the IGF is how to engage a wider section of civil society. While the IGF was better attended by delegates from South-East Asia, fewer delegates from Europe and the Middle East were visible during this IGF. This remains a challenge to the organisers, with too much interaction from those physically present at the conference and too little from the many remote participants, many of whom couldn’t afford the air fare to Bali but have much to contribute. Bridging this divide will be important in the future.
The tone of this IGF was set by the Snowden revelations. The US and other Western democracies were on the back foot, in stark contrast to their confident promotion of net freedom in Baku. Without openess, increased transparency and an end to mass surveillance it’s hard to see how they will regain their moral authority, leaving a huge vacuum at the heart of these debates. A vacuum that others – in particular China – are willing to fill. The battle to keep the multistakeholder, open internet free from top-down state interference is on-going. The IGF should give once confident advocates of net freedom serious pause for thought.
18 Oct 13 | Bulgaria, Digital Freedom, Germany, News and features, United States
On 30 September, Bulgarian-German author Ilija Trojanow was travelling from Brazil to the US for a conference on German literature. That was his plan, anyway. At the airport in Salvador da Bahia, he was told his entry to the US had been denied. No explanation was provided then, and none has been provided since.
Trojanow is one of the main forces behind a 74,000 strong and growing petition against mass surveillance. Initiated and signed by some Germany’s biggest writers, the petition argues the government is bound by the constitution to protect its citizens against foreign spying.
His experience in Brazil exploded in the German media, but Trojanow seems more bemused than anything else.
“It wasn’t bad enough that governments are spying on everybody!” he says with a laugh. “What this shows is that general attacks on everybody and not individual victims, are too abstract. An individual case, even if it’s a minor one, can get more attention.”
While the incident did create more discussion around mass surveillance and caused a spike in the number of signatures, there is no doubt the petition already had widespread support. The issue of mass surveillance seems to have struck a particular chord in Germany. Trojanow believes this is due to their history.
“East Germany more than any other country in the former Soviet block has discussed its secret service files. It has been a dominant issue in the media. The archives are easy to access. Germans know how horrendous it is when the secret service is not under real control.”
He also thinks the famous German efficiency shines through even in this case. Many felt that something needed to be done about the mass surveillance, and when Germans set out to do something, they do it properly.
“It is quite ironic,” he adds: “Germans had democracy beaten into them. They were educated in democracy by the US and the UK. It seems they were good students!”
Trojanov himself has long been interested in the issue of state surveillance, with his 2009 book “Freedom Under Attack”, for instance, becoming a bestseller in Germany. For him, the issue carries a more personal dimension. Growing up in a Bulgaria, parts of his family were engaged in the struggle against the communist authorities.
“I am in the situation now where I am able to read transcripts of what adults in my family were saying, as our apartment was bugged.”
“What you realise is that when you have the attention of the secret service pointed at you, whatever you do is in some way proof of guilt. Even completely innocent things become potentially implicating.”
The petition was formally presented to the German government on 18 September, back when when it had 63,000 signatures. A month and ten thousand additional names later, they have still have yet to receive any sort of official reply. Still open, Trojanow and his compatriots now plan to take it global. As he says, mass surveillance is a worldwide challenge and cannot be tackled simply by and within one nation.
“I don’t understand why we wait until situation is completely unbearable. You start safeguarding your freedoms when they are attacked on the edges.”
This article was originally posted on 18 Oct 2013 at indexoncensorship.org
