Law in the Internet Society

How mass surveillance is eroding the liberal democratic system

-- By SjoerdOppenheim - 28 Dec 2014

So it has recently been disclosed that GCHQ hacked into Belgacom, a Belgium telephone- and internet provider. Not only did they surveil meta-data, but they also obtained the concrete content of the emails and telephone calls. Hacking into Belgacom’s system was crucial for GCHQ in multiple ways. Belgacom’s network was the last obstacle for GCHQ’s and their American listeners friends to full world surveillance. In the USA, the law gives the NSA complete access to all American roaming systems. Belgacom’s network spreads out all over Europe, Africa and the Middle-East.

Especially interesting to the English listeners must be that a prominent customer of Belgacom is the European Union, probably not Britain’s best friend. Having access to all their private conversations of the EU politicians and employees, the Brits are not only playing politics with their opponents cards open on the table, but they also have some jokers up their sleeves. The democratic deficit, the idea which haunts the European Union since its establishment, thereby becomes even more worrisome. In an attempt by the USA and Great Britain to get a United Nations Security council resolution for their war in Iraq in 2003, the GCHQ and the NSA tried to collect information to blackmail the Security Council members voting on the issue. It was only because of the disclosure of former GCHQ employee that this did not happen. However, when the stakes in the European Union are high and no brave whistleblower is present, one might wonder the GCHQ will act. 
 Another way in which the GCHQ can influence politics is by their control over the internet. The Joint Threat Research Intelligence Group of the GCHQ has created tools with whereby they can ‘seed the internet with false information, including the ability to manipulate the results of online polls, artificially inflate page view counts on web sites, “amplif[y]” sanctioned messages on YouTube? , and censor video content judged to be “extremist’. As a true ministry of truth, the GCHQ is now feeding you the ‘correct’ information, in order to keep you safe of course. 

Despite all these revelations, GCHQ still hold that their work ‘is carried out in accordance with a strict legal and policy framework which ensures that our activities are authorized, necessary and proportionate, and that there is rigorous oversight, including from the secretary of state, the Interception and Intelligence Services commissioners and the parliamentary intelligence and security committee’

But surveillance is harming the rechtsstaat in more ways: the Dutch Minister of Internal Affairs admitted that their secret agency AIVD has listened to the communications the Lawyers of Dutch Lawyer office Prakken D’Oliviera had with their clients and third parties. Especially salient is the fact that Prakken’s clients are often high-profile clients, suspected of involvement with the Tamil Tigers, wrongdoings in Srebrenica and terrorist associations. Notwithstanding the attorney-client privilege, the Dutch intelligence agency has systematically and extensively listened to their conversations at their own discretion, without any checks or balances by an independent judge.

What are to make of all this? Is the right of privacy in the European Continent just as dead as on the other side of the Atlantic Ocean? Is there anyone we can hold accountable for these flagrant intrusions in our daily lives? We cannot expect the intelligence agency’s to change their own ethics. The GCHQ is still convinced that there is nothing wrong with their behavior. ‘This is secret work, it is secret intelligence, it is secret for a reason, and a reason that is to do with protecting all the people of this country." At an inquiry of the civil liberties commission of the European Parliament, there was an empty seat reserved for Sir Ian Lobban, the head of GHCQ who refused to account for his obtrusive infringements of the European’s privacy, claiming that the intelligence and national security were none of the EU’s business.

And while there are some excellent politicians who are doing a great job, the bitter truth is that the majority of the politicians buy the terrorist/pedophilia rhetorics the intelligence agencies always professes. It is startling that after the revelation of the AIVD, the Dutch parliament refused to hold a public debate in plenary about this matter. And instead of being worried about the privacy of their citizens and the acts of their intelligence agency, the English Parliament approved the Data Retention and Investigatory Powers Act last summer, which greatly expands the GCHQ’s power.

What then could be our bright hope in these dark winter days? It appears that the judiciary, the latest safeguard in a democratic system, might be willing and able to step in. The Commissioner of Human rights of the Council of Europe, Nils Muiłnieks, has just released a report in which he states that “In connection with the debate on the practices of intelligence and security services prompted by Edward Snowden’s revelations, it is becoming increasingly clear that secret, massive and indiscriminate surveillance programmes are not in conformity with European human rights law and cannot be justified by the fight against terrorism or other important threats to national security. Such interferences can only be accepted if they are strictly necessary and proportionate to a legitimate aim.” This is significant good news, as mr Muiłnieks has a right to intervene in cases sent to the European Court of Human Rights (ECtHR? ). And in September, an appeal has been submitted by civil rights groups to the same court for disclose of the so called ‘Five-Eyes’ Treaty, the treaty that authorizes intelligence sharing between the USA, UK, Australia, Canada and New-Zealand. The ECtHR? has supremacy over domestic law, which could thereby play a vital role the battle against mass surveillance. If they do not do that, the stronghold that was once called privacy will definitely fall.

What I don't understand about your essay is the idea that any of this is new. There has never been any "rechtsstaat" concerning government listening in any European nation. Every European society makes no distinction between national security listeners and law enforcers, moreover, so that the absence of any rule of law over listening extends to nationals and non-nationals alike.

This is not to say that there are no national cultures concerning listening. We could discuss, not in this forum, the Dutch traditions, contrasting them with those of the French and the British, or even the Belgians. But we would at no point be discussing law, of which there has never been any.

Belgacom is just a phone company. Both the US and the UK listeners (who are essentially one team, with the UK listeners freed of the rule of law inside the US, which is helpful to the US listeners, who didn't use to be, and still in many ways aren't) are inside every European telecommunications system, and indeed inside every telecomm system in the world. There's nothing special about Belgacom, or about the EC, as targets of US listening. You're just expressing shock because you think you live in a transparent democracy in which people are supposed to be informed.

So what's the point of the essay, really? Outraged naivete? A mysterious belief that a secondary European tribunal is going to change hundreds of years of unbroken European practice of extralegal listening overnight, in an order? I'm puzzled.

-- SjoerdOppenheim - 18 Jan 2015

I think you misunderstood my point with reference to the 'rechtsstaat'. I never claimed that the Netherlands, or any European country whatsoever has a perfect rechtstaat, nor did I claim that the term 'rechtsstaat' is binary, ('you either have it or you don't') as I think it is a continuum spectrum. Al I said that whatever level of rechtsstaat we have now, the national listeners are harming it. But this is not really important.

The important part was of course, that in a rechtsstaat the executive part of the government is bound by the law. Although this doesn't necessarily entail that nationals and non-nationals are to be treated by the same rules , they do have to be treated by rules.

What is new? While in your view the US and UK listeners are essentially one team, the judiciary in Europe cares to differ as they have competence over the UK's actions they would not have over the US's. Therefore the UK can in theory be held responsible for their actions, when they are not in conformance with i.a the idea of the rechtsstaat. You accuse me of naive optimism concerning the powers of the ECtHR? . On the degree of confidence we should have in this institute we could differ, but I do not think that is important right now. Your accusation also contains the idea (or it is just my mind putting that idea in your accusation after attending your course the past semester) that we do not need to rely on the judiciary for our freedom, but that we can do it ourself with Free Software and encryption. You told miss Scola in your interview with her that it would take her about a weekend to have safe communications. But then again the government still needs to provide some basic things, such as internet access and it not being illegal to communicate (or to ban encryption, as David Cameron wants to do).

So then again, I'm puzzled as well. I also do not see why you have such an aversion against the judiciary while you yourself have written multiple amici curiae for the SC. Why would you bother if everything we need is free software and encryption?

-- SjoerdOppenheim - 18 Jan 2015

 

v2.

How mass surveillance is eroding the liberal democratic system

So it has recently been disclosed that GCHQ hacked into Belgacom, a Belgium telephone- and internet provider. Not only did they surveil meta-data, but they also obtained the concrete content of the emails and telephone calls. Hacking into Belgacom’s system was crucial for GCHQ in multiple ways. Belgacom’s network was the last obstacle for GCHQ’s and their American listeners friends to full world surveillance. In the USA, the law gives the NSA complete access to all American roaming systems. Belgacom’s network spreads out all over Europe, Africa and the Middle-East.

Especially interesting to the English listeners must be that a prominent customer of Belgacom is the European Union, probably not Britain’s best friend. Having access to all their private conversations of the EU politicians and employees, the Brits are not only playing politics with their opponents cards open on the table, but they also have some jokers up their sleeves. The democratic deficit, the idea which haunts the European Union since its establishment, thereby becomes even more worrisome. In an attempt by the USA and Great Britain to get a United Nations Security council resolution for their war in Iraq in 2003, the GCHQ and the NSA tried to collect information to blackmail the Security Council members voting on the issue. It was only because of the disclosure of former GCHQ employee that this did not happen. However, when the stakes in the European Union are high and no brave whistleblower is present, one might wonder the GCHQ will act. 
 Another way in which the GCHQ can influence politics is by their control over the internet. The Joint Threat Research Intelligence Group of the GCHQ has created tools with whereby they can ‘seed the internet with false information, including the ability to manipulate the results of online polls, artificially inflate page view counts on web sites, “amplif[y]” sanctioned messages on YouTube? , and censor video content judged to be “extremist’. As a true ministry of truth, the GCHQ is now feeding you the ‘correct’ information, in order to keep you safe of course. 

Despite all these revelations, GCHQ still hold that their work ‘is carried out in accordance with a strict legal and policy framework which ensures that our activities are authorized, necessary and proportionate, and that there is rigorous oversight, including from the secretary of state, the Interception and Intelligence Services commissioners and the parliamentary intelligence and security committee’

But surveillance is harming the rechtsstaat in more ways: the Dutch Minister of Internal Affairs admitted that their secret agency AIVD has listened to the communications the Lawyers of Dutch Lawyer office Prakken D’Oliviera had with their clients and third parties. Especially salient is the fact that Prakken’s clients are often high-profile clients, suspected of involvement with the Tamil Tigers, wrongdoings in Srebrenica and terrorist associations. Notwithstanding the attorney-client privilege, the Dutch intelligence agency has systematically and extensively listened to their conversations at their own discretion, without any checks or balances by an independent judge.

What are to make of all this? Is the right of privacy in the European Continent just as dead as on the other side of the Atlantic Ocean? Is there anyone we can hold accountable for these flagrant intrusions in our daily lives? We cannot expect the intelligence agency’s to change their own ethics. The GCHQ is still convinced that there is nothing wrong with their behavior. ‘This is secret work, it is secret intelligence, it is secret for a reason, and a reason that is to do with protecting all the people of this country." At an inquiry of the civil liberties commission of the European Parliament, there was an empty seat reserved for Sir Ian Lobban, the head of GHCQ who refused to account for his obtrusive infringements of the European’s privacy, claiming that the intelligence and national security were none of the EU’s business.

And while there are some excellent politicians who are doing a great job, the bitter truth is that the majority of the politicians buy the terrorist/pedophilia rhetorics the intelligence agencies always professes. It is startling that after the revelation of the AIVD, the Dutch parliament refused to hold a public debate in plenary about this matter. And instead of being worried about the privacy of their citizens and the acts of their intelligence agency, the English Parliament approved the Data Retention and Investigatory Powers Act last summer, which greatly expands the GCHQ’s power.

What then could be our bright hope in these dark winter days? It appears that the judiciary, the latest safeguard in a democratic system, might be willing and able to step in. The Commissioner of Human rights of the Council of Europe, Nils Muiłnieks, has just released a report in which he states that “In connection with the debate on the practices of intelligence and security services prompted by Edward Snowden’s revelations, it is becoming increasingly clear that secret, massive and indiscriminate surveillance programmes are not in conformity with European human rights law and cannot be justified by the fight against terrorism or other important threats to national security. Such interferences can only be accepted if they are strictly necessary and proportionate to a legitimate aim.” This is significant good news, as mr Muiłnieks has a right to intervene in cases sent to the European Court of Human Rights (ECtHR? ). In addition to that, the parliamentary assembly of the Council of Europe has recently unanimously condemned the mass surveillance practices of the GCHQ in particular. This is noteworthy as ’the European court of human rights looks to the assembly for broad inspiration, and occasionally cites it in its rulings.' And in September, an appeal has been submitted by civil rights groups to the same court for disclose of the so called ‘Five-Eyes’ Treaty, the treaty that authorizes intelligence sharing between the USA, UK, Australia, Canada and New-Zealand. The ECtHR? has supremacy over domestic law, which could thereby play a vital role the battle against mass surveillance. If they do not do that, the stronghold that was once called privacy will definitely fall.

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r4 - 01 Feb 2015 - 18:43:40 - SjoerdOppenheim
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