A breach of trust on the grandest scale

Posted by Bella Sankey on 10 June 2013

"I really want the focus to be on these documents and the debate which I hope this will trigger among citizens around the globe about what kind of world we want to live in. My sole motive is to inform the public as to that which is done in their name and that which is done against them. They are intent on making every conversation and every form of behaviour in the world known to them. I don't see myself as a hero, because what I'm doing is self-interested: I don't want to live in a world where there's no privacy and therefore no room for intellectual exploration and creativity. What they're doing poses an existential threat to democracy".

These are the brave words of Edward Snowden, a 29 year old former technical assistant for the CIA who today made public his identity as the whistleblower responsible for revealing the secret US Government programme to establish the technical infrastructure to monitor all online communications worldwide.
 
Snowden’s principled and carefully selected leaks should trouble everyone who uses the internet or who believes in democracy, freedom and the Rule of Law. They cannot be over-stated and suggest a breach of trust on the grandest scale with the US Government, internet companies and our own UK intelligence community showing contempt for privacy, legality and democracy itself.
 
It was this kind of arrogance that lay behind the spooks lobbying for a home-grown "Snoopers' Charter". It now seems that those who failed to persuade in Parliament had already smuggled blanket surveillance through the back door with the help of their American counterparts.
 
The first scandal is the NSA PRISM programme itself. Detail of the technological infrastructure is still unclear but leaks suggest that the US Government has the ability to directly access content held by the world’s biggest internet companies. Snowdon says "the NSA has built an infrastructure that allows it to intercept almost everything.” The ACLU, Liberty’s sister organisation, has called for a full investigation to uncover the scope of current powers and the reforms required to achieve oversight of Executive actions. So far the response of the US Government and US based internet companies has been a woeful combination of meaningless platitudes and “non-denial denials”. In defending criticism of PRISM President Obama has relied on the fact that it targets non-US citizens and Congress has been apprised. Little comfort for internet users everywhere else in the world. Surely this evasion cannot continue much longer? The internet has been a powerful force for good, promoting free speech and assisting democratic movements across the globe but, as its creator Tim Berners-Lee has acknowledged, “unwarranted Government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society”.  The internet will become a tool of oppression if the PRISM system is maintained.

The second scandal is the legal regime which allows an effective free-for-all in the surveillance of non-US citizens. The chilling US Foreign Intelligence Service Act treats all non-US citizens as possible enemy suspects, entitled to none of the basic privacy protections afforded to US nationals. Last year Liberty intervened in a legal case in the US Supreme Court (Clapper v Amnesty et al) to challenge this position. Regrettably, the case was dismissed 5-4 in the Supreme Court in February because the plaintiffs couldn’t prove they had been subject to surveillance. If universal rights and freedoms are to be more than lofty ideals, they must be universally enforced. We are all foreigners somewhere but we are human beings everywhere. It is an affront to basic human dignity for the US to deny the rights of British citizens or any other non-US citizens online. And it will be shaming indeed if our own Government has chosen to endorse this approach, and co-opted this abuse of power as its own.

Which brings us to the third pressing issue - the role of the UK Government: now suspected of using PRISM to monitor British people, bypassing the legal checks and balances provided for domestic surveillance under UK law. Our Regulation of Investigatory Powers Act 2000 governs surveillance (intercept, access to meta-data etc) and requests made directly by UK law enforcement to communication service providers. Access to PRISM material via intelligence-sharing arrangements with the US appears to fall outside this legal framework. It is reported that GCHQ generated 197 intelligence reports from PRISM in 2012 and the Prime Minister and Foreign Secretary have yet to deny that GCHQ has been accessing this material. Their repeated statements about the intelligence services operating “within the law” therefore offers no clue as to whether the UK has been using PRISM to bypass domestic safeguards. After twelve years of twisted War on Terror logic, dodgy dossiers, kidnap and torture, we know that Governments – particularly ours and its US cousin - are happy to do each other’s dirty work. Pressure must now be brought to bear on Ministers and the UK intelligence community to explain their actions and enact legal reforms to see off a backdoor “Snoopers’ Charter”.

Authoritarian cheerleaders for PRISM lack imagination and an understanding of its implications. They also misrepresent the issue, making simple claims about how the internet cannot be a wholly un-policed space. No-one is arguing for that. The choice is between targeted surveillance on the basis of individual suspicion of criminality and blanket surveillance of the world population to serve broad – including political - ends of the US Government and its allies. There is no such thing as absolute privacy, nor absolute security but basic principles of legality, proportionality and judicial and parliamentary accountability should govern the use of intrusive surveillance. As things stand, the US – with UK collusion – appears to have ripped up that rule book.