Six Ways To Fight Surveillance

Edward Snowden showed what many already suspected about the pervasive culture of secrecy and commerce in technology and information exchange.

While information was already in the public domain about this issue, Snowden, working with Glen Greenwald and Laura Poitras, was able to provide the examples necessary to trigger a wake up call about exactly what section 215 of the Patriot Act enabled the Foreign Intelligence Surveillance Court to do – acquire subscriber records from any company in the USA. 

He showed how one program called PRISM could provide, through a back door, collection of audio and video chats, photographs, e-mails, documents, and connection log data collected by nine corporations: Microsoft, Yahoo!, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.

He also showed us the cavalier and sinister attitudes of some governments to surveillance overreach into the private lives of citizens – both their own citizens and in other countries.

Recognition of the NSA’s actions as amounting to cybercrime – at least 15,000 breaches of US law and ongoing violation of Article 12 of the Universal Declaration on Human Rights – has caused an outcry around the world from leaders and civil society organisations.

Warrantless theft and storage of vast quantities of detailed and private information about citizens all over the world, their habits on email, at the bank, in the kitchen and in bed, is both illegal and immoral.

It has become clear that some of this spying has nothing to do with national security or terrorism. Where are the terrorists in the Brazil’s resources company Petrobras, spied on by the NSA even though it has specifically stated it does not engage in economic espionage? Where are the terrorists at the Organisation of American States, another target of the NSA? What about Mexican president Enrique Peña Nieto, who like the president of Brazil was spied on by the NSA?

Ten days after Snowden’s material was made available through the Guardian and Washington Post, the European Parliament expressed outrage, issuing a statement  that, “Europe cannot allow Americans to spy on its citizens, which is why setting up new data protection legislation is so urgent, according to the majority of the EP's civil liberties committee.”

The European Parliament’s Civil Liberties Committee is reporting by the end of the year on the Electronic mass surveillance of EU citizens, with public hearings providing opportunities for evidence from experts like Jacob Appelbaum to explain how the sovereignty of EU countries and the human rights of citizens are being violated.

The US House Intelligence Committee of Congress called the NSA director general and others to testify and explain the consequences of PRISM. James Clapper tendered an apology on 21 June 2013 for false testimony on the collection of data of millions of Americans.

The President of Brazil, clearly still furious about the surveillance of her office revealed by Snowden in the Guardian, opened the General Assembly open debate in September with a statement that directly challenged the legality of warrantless surveillance  that violated the privacy of her citizens. 

Brazil proposed a new multilateral civil framework for Internet governance, which enjoys the support of some governments and could evolve the treaty on data protection that Angela Merkel envisaged a few days after Snowden’s material was made public. 

Hillary Clinton once described the world’s digital architecture as “the new nervous system of the planet”. The President of Brazil has proposed we reinforce the rules of this nervous system by strengthening Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties that forbid such systems of massive surveillance. Perhaps Brazil will filter this idea through the General Assembly debate; perhaps a resolution could charge the Human Rights Council with the negotiation of a draft protocol for the next General Assembly’s consideration. 

Let’s contrast this activity to what is happening in Australia; that is, nothing.

The Australian government, regardless of who camps at Kiribilli, just wants the story to go away. Soon after the June 2013 revelations, both Labor and the Coalition joined to quash a Senate motion that requested the Attorney General explain how Australian’s legal protections and so-called “privacy principles” were impacted by PRISM. By now we are all familiar with the mantra: “the Australian government does not comment on the law enforcement or intelligence capabilities of other countries.” 

With regard to PRISM, the Australian government states that the US government’s interception was lawful and provided under warrants issued by the Foreign Intelligence Surveillance Court (FISC), despite the fact that leaked audits of the NSA and the FISC reveal that the surveillance has been illegal, individuals have abused their power and access over 15,000 times. 

In documents that are not entirely blacked out, the Australian government glibly repeats that all interception in Australia is conducted legally and with proper safeguards under the Telecommunications Interception and Access (TIA) Act, when we know that hundreds of thousands of requests for data are provided without a warrant under the TIA. 

Overall, FOI requests and answers provided to question in the Senate and on notice reveal that a culture of non-disclosure prevails. The delayed and deliberately bland answers received confirm that Australia is deeply complicit in a surveillance culture.

How can we wind back surveillance overreach, here and now?  Here are six ideas.

1. Bring security agencies within the ambit of our Freedom of Information (FOI) Act. Even the CIA and FBI do not enjoy such blanket protection.

2. For Australia’s TIA Act to have any credibility, it should include security agencies in the reporting requirements. Even without giving away operational details, it would still be appropriate for the Australian people to know the numbers of people ASIO and the ASD have under surveillance at any one time.

3. The Greens' “Get a Warrant” bill would apply normal warrant procedures to requests for telecommunications data. Call me old fashioned, but I believe that if law enforcement and intelligence agencies need a warrant to enter our homes, they should also need one to access our telecommunications data.

4. Move promptly on making data breach notifications mandatory. Industry and government should promptly inform Australians when private data has been inadvertently released, in order to minimise the harm caused.

5. IT providers and carriers including offshore companies operating in Australia should be required to advise customers of their agreements with foreign or domestic governments that may lead to them handing off your data without your consent. 73 per cent of Australians support such a requirement, as found by Essential in this week’s Essential Report. 

6. The governments of USA, Canada, Australia, UK and NZ have an agreement to share information, known as “Five Eyes”. The Greens believe that a new agreement is needed among the governments and people of these five countries – the governments in question are certainly reluctant to give up any of these powers, which means it is up to like-minded MPs and civil society groups to work together to bring them to the table. Such a new agreement among the Five Eyes could work with the multilateral agreement championed by Brazil to rebalance the security / privacy equation so severely altered by the rushed and radical anti-terrorism laws enacted after the events of 11 September 2001 in all Five Eyes countries.

It is long past time to reverse an aspect of the social contract in the “war on terror” that assumed citizens have no right to privacy and the state can jealously guards its secrets, while whistleblowers are punished in show trials and then caged like animals.

The democratisation of communications is leading to information sharing, scientific and technical innovation and the formation of a global civil society and that is extraordinarily valuable. We won’t get these benefits unless we actively resist the medium being rapidly transformed into a giant surveillance tool at the hands of unaccountable security agencies. To paraphrase a meme going around the net at the moment, in America you don’t browse the internet – the internet browses you. It's time we pushed back.

New Matilda national affairs correspondant Ben Eltham is on leave. NM has invited a range of former politicians and commentators to write in his absence.