Stopping the Spies. Jane Duncan
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After the Snowden leaks began, divisions opened up in the judiciary about mass surveillance, and consequently the legal position has remained unsettled. Immediately after the leaks revealed the existence of a top secret court order requiring the US company Verizon Wireless to collect the telephone records of millions of US customers, some of these customers (including the ACLU) brought a lawsuit against President Barack Obama, the NSA and others, alleging that the bulk collection of their phone and internet metadata was illegal. Federal Judge Richard J. Leon upheld their case, delivering a stinging rebuke of the NSA’s bulk collection programme as being most likely unconstitutional, describing it as ‘almost Orwellian’, and ruling that in this case the plaintiffs did have standing as they could demonstrate a clear interest. However, the judgment was reversed and remanded back to the district court. In 2015, the US Court of Appeals for the Federal Circuit rejected this ruling and found that the bulk collection of metadata was illegal on the grounds that innocent people were targeted.42 This was the most significant court victory in the US to date, and suggested that the courts had been revitalised by the Snowden revelations. In response, the House of Representatives passed the US Freedom Act, which limited bulk collection, and restricted law enforcement agencies to more targeted surveillance, although other provisions have arguably broadened their surveillance powers.43 The year before, the Obama administration also issued a presidential policy directive announcing policy reforms aimed at limiting the circumstances under which signals intelligence could be collected to genuine national security situations, and not for purposes of curtailing dissent; however, this directive has been criticised as weak and easy to revoke by another President.44 At the time of writing, other legal challenges to the US government’s surveillance powers were still unfolding. While it remains to be seen what the election of Donald Trump as the new US President, and the shift from a Democratic to a Republican administration, will mean for the fight for accountable surveillance, it could well entail a reversion to more conservative judgments that are more deferential to the executive.
With respect to the US FISC, privacy advocates have attempted to address its bias towards the very spy agencies it is meant to preside over, by arguing that FISC should include a special public advocate. This person would have the powers to interrogate cases before the courts, engage in discovery of relevant evidence, brief the court on matters relevant to current cases (including technically complex matters), and appeal against adverse rulings. Such an advocate would make sure that court decisions were debated vigorously even if the court processes took place behind closed doors.45 Privacy advocates have noted that the European Commission for Democracy through Law has argued that an internal privacy advocate in a secret court process could raise arguments on behalf of people who have nothing to do with the investigations at hand, but whose metadata was nevertheless being intercepted. In the case of content, the agencies might use selectors that could be attributed to an individual, and in those cases the advocate could ensure that the court strengthened its justification requirements.46 As surveillance issues have become highly technical, a public advocate could also introduce expert technical evidence into court to inform proceedings on matters with which the judges might not be conversant.47 Furthermore, in its standards for democratic oversight of intelligence agencies, a team linked to the University of Amsterdam’s Institute for Information Law have argued that oversight needs to incorporate the adversary principle, which they point out is a basic rule of law principle. The introduction of a public advocate into the system could be one way of incorporating this principle into strategic surveillance oversight, without necessarily compromising the need for secrecy in the process.48 While the Freedom Act has provided for an amicus curiae role, this differs from the public advocate role in that these individuals do not have the right of consistent representation, as the court can rule an amicus inadmissible or inappropriate, particularly if the legal issue is not one the court considers novel or significant. The amicus will only enjoy restricted access to information relating to current cases, which could limit his ability to participate fully and even counter the state’s legal arguments, and the amicus also does not play a meaningful role in deciding whether the FISC’s decisions should be taken on legal review.49
Another strategy adopted by privacy advocates has been to lobby various UN bodies to adopt positions on various aspects of surveillance. On this level, the advocates have met with considerable success. In the wake of the Snowden revelations, the Special Rapporteur on the rights to freedom of assembly and expression emphasised the importance of privacy for freedom of expression and, within this, the essential role of encryption and anonymity for the privacy of communications.50 The UN General Assembly also adopted a resolution entitled ‘the Right to Privacy in the Digital Age’. While the resolution stopped short of condemning surveillance practices, it expressed concern about the impact that surveillance, especially mass surveillance, may have on the enjoyment of human rights. It also reaffirmed the right to privacy, and the right of people to enjoy the same rights online as they do offline, and recognised the open nature of the internet. It called on states to respect privacy and to review their surveillance procedures, and requested the High Commissioner to submit a report to the UN Human Rights Council and, ultimately, the General Assembly on privacy and surveillance. The report’s authors expressed concern about countries engaging in surveillance, but not providing adequate legislative safeguards, as weak safeguards and poor accountability increased the potential for abuse. They noted that while the report was an important first step, they acknowledged that much more work needed to be done to develop mechanisms to ensure that surveillance practices complied with international human rights law.51 The Human Rights Council also appointed its first Special Rapporteur on the right to privacy, Joseph Cannataci, who began the process of elaborating on these mechanisms in a preliminary report to the council, which referred rather optimistically to the Schrems and the Zakharov cases (mentioned above) as ‘the beginning of the judicial end for mass surveillance’.52 He argued that the UK Investigatory Powers Bill failed the judicial tests set by these two cases and expressed concern that the government would be setting a bad precedent for the rest of the world.53 These efforts at the UN level are clearly bearing fruit in that a set of legal principles is in the process of being developed, and is bound to have great utility in the years to come as different countries review their legal protections (or lack of them) for privacy in the face of widespread surveillance.
At the international level, civil society has also focused on placing pressure on governments to impose export controls on surveillance equipment that qualifies as dual-use technology. The 2013 revision to the Wassenaar Arrangement (on export controls for arms and dual-use goods and technologies) to include IP-based surveillance equipment has greatly increased its utility for privacy advocates. The fact that 86 per cent of surveillance companies are located in countries that subscribe to the Wassenaar Arrangement makes this agreement even more important to the fight to control the spread of surveillance technologies.54 Moreover, the 2013 additions to the Wassenaar Arrangement have been added to EU dual-use regulations, creating a further layer of compliance for European-based companies. At the same time, the surveillance industry has continued to grow by an estimated 20 per cent a year.55 A specific coalition has been established to focus on campaigning against sales of mass surveillance technologies that do not have sufficient legal controls to prevent human rights abuses. Called the Coalition Against Unlawful Surveillance Exports, it seeks to encourage governments to regulate exports of mass surveillance technologies, and private sector companies to exercise responsibility in deciding to whom they sell such equipment, to prevent them from empowering authoritarian governments. However, the question does arise why the mass surveillance industry is booming if it is subject to unprecedented export controls. One of the problems is that the agreement does not have the status of a legally binding treaty, which means that countries can choose whether to, and how to, codify the Wassenaar Arrangement into domestic law. The EU has already implemented the Wassenaar Arrangement, and the US is in the process of doing so. An increasingly important surveillance player, Israel, has not subscribed to the Wassenaar Arrangement, although it has implemented its key features in exports, while not subscribing fully to all of them.
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