The world over, there has been a breach of trust between the public and government on issue of online surveillance
By Bushra Sultana
Ever since the invention of the internet there were idealistic hopes attached to the freedom and anonymity it afforded to its users. In the last decade of 20th century, internet was promoted as a bastion of free speech and limitless possibilities in a world still recovering from the secrecy of the Cold War.
Unfortunately though, it wasn’t long before the utopian dream started unravelling. In a little over the last decade, companies like Google and Amazon entered the market with their overwhelming capacity to collect data about their users. This corresponded with massive increase in the amount of data available online. According to Science magazine, even till 2000, only 25 per cent of the world’s data was stored digitally. But by 2013, over 98 per cent of the data was digitally formatted and stored.
This reflects a huge shift in the way we interact with information. More importantly, the kind of information that is now recordable has changed. Many services, such as medical and educational records, and personal correspondence, including pictures and videos are increasingly being stored online. Thus, a tremendous amount of information is now susceptible to third parties.
“The minute you switch on your cell phone it is registered on the network,” says Fouad Bajwa, an international governance consultant. “Even if you switch off your location services, your location and movement is being mapped on the servers. Similarly, when you go online from your computer, it is registered and given an IP address. From there everything you do is traceable.”
Incidentally, the rise of big data — the sheer volume of information stored online — has corresponded with the global war on terror. Countries that were hit by terrorism saw an opportunity for a new kind of surveillance that put less lives in risk and was comparatively faster in yielding results.
Thus, the governments not only set up their own divisions but also got other companies, such as Google and Facebook, to grant them access to their records.
In light of Edward Snowden’s disclosure, it is now clear that the amount of surveillance being done by the US and the UK is overwhelming, to say the least.
According to The New York Times, the US government monitors almost all email content that crosses the US borders. This surveillance was allowed through a 2008 law, the FISA Amendment Act, that authorised the government to monitor its citizens without a warrant as long as the “target” was a non-citizen abroad.
The United Kingdom isn’t far behind. At the time Snowden revealed the National Security Agency’s (NSA’s) Prism programme, he also gave information about Tempora, a similar operation run by the UK spy agency Government Communications Headquarters (GCHQ) since 2011. GCHQ also monitors almost all data transmitted through telephone and Internet lines across continental Europe and the Atlantic. Additionally, GCHQ shared the data it collected with the NSA in a collaborative attempt to fight terrorism.
Since these revelations, media reports have disclosed how other European governments are involved in online surveillance. France has a surveillance programme. Netherlands’ local media have reported that the government may have access to the data collected through the NSA programme. Earlier this year, the Indian government also introduced a centralised monitoring system for calls and internet communications without being clear on how the individual rights would be protected.
Advanced spyware Finfisher, developed by a UK-based company, has been found on servers on a network owned by PTCL as reported by The Citizen Lab of the University of Toronto. However, it is still not clear whether the spyware is being used by the Pakistani government or is being used by another government on the PTCL networks.
Proponents of internet surveillance argue that this monitoring saves lives. But how much success has this kind of surveillance had for the American government?
In June, 2013, NSA Director Gen. Keith Alexander, told a congressional committee that the NSA’s surveillance programme has till date helped stop over 50 terror plots in the US and abroad. These figures quantify the results of such surveillance tactics. But the inherent murkiness of the procedures raises legitimate concerns about the absence of control on the spying agencies.
In the aftermath of Snowden’s leaks, elected officials on both sides of the Atlantic — the UK and the US— have either claimed ignorance about the existence of such programmes or have asserted that they were not aware of the extent of surveillance. As Nighat Dad, executive director of Digital Rights Foundation based in Pakistan, says, “those responsible for governance have frequently been left uninformed, or under-informed, or in some cases openly lied to about what programmes were in operation.”
While discussing the need for a balance between the necessity of surveillance and rights to privacy, Emma Carr, deputy director of the UK-based civil rights advocacy group Big Brother Watch, admits “the internet can and should be used as a tool for targeted and investigative-led surveillance in order to catch terrorists and individuals involved in serious crime.” However, Carr argues, the UK parliament did not intend for these laws to permit agencies to gather details of every communication we send, which includes content. “Those responsible for oversight have failed,” she says.
Dad agrees there has been a breach of trust between the public and government on issue of online surveillance. “Civil society… has, for years, accepted that the ‘necessary and proportionate’ clauses [to monitor] were being introduced in good faith,” she says. “That is, that some level of state surveillance/interception must be allowed, but that it would be constrained and properly managed.” However, Dad says, it was later found out that such provisions were exploited to “practice unconstrained mass interception”.
Dad gives the example of Foreign Intelligence Surveillance Court (FISC). “In some cases, it is not possible to tell whether what is being done is legal or not (because the laws governing its operation are secret).” She is referring to the courts that operate under FISA. These courts work ex parte, which means during the hearings there is no one present except for the judge and the government to make the case. Also, the courts have approved more than 99 per cent of the request brought for them.
Where does the road lead from here? There is uniformity in the suggested solutions, no matter which country is under discussion.
Sana Saleem, co-founder and director of Pakistani advocacy internet group Bolo Bhi, believes that before any policy on internet regulation is formulated in Pakistan, there is a need to ensure constitutional safeguards for people’s rights. Carr agrees when she says that the European laws are dated and cannot be applied to the completely different world of online surveillance today.
Dad claims the US has a bigger problem when it comes to the laws governing interception and surveillance. “For instance,” she says, “there is disagreement, right up to the Supreme Court, about whether there is any general right to privacy arising out of the US Constitution (particularly the 4th Amendment).”
A coherent and fruitful debate about Internet governance, it seems, can occur only when the individual rights of people are redefined within a framework that reflects the new realities of the digital age.