Strife Series on Intelligence in the digital age, Part II – Surveillance, data protection and the right to privacy

By: Felix Manig

Security camera installations are seemingly ubiquitous in our modern lives.

Counterterrorism efforts in the digital age are characterized by the ability of certain governments to systematically intercept, collect and analyze metadata and private information worldwide. Through the disclosure of classified information on covert global surveillance programs in 2013, the ex-NSA contractor Edward Snowden initiated an important debate on the balance between national security and civil liberties. While proponents of extensive surveillance legislation argue that these measures are necessary in the 21st-century fight to uncover and neutralize terrorism plots, the indiscriminate interception and retention of personal data poses serious challenges to international human rights law.

Surveillance and human rights law

Article 17 of the International Covenant on Civil and Political Rights asserts the right to privacy and prohibits states from unlawful and arbitrary interference with the privacy of individuals within their jurisdiction. The Covenant clearly states that any search, surveillance or collection of data about a person must be lawful and authorized. Furthermore, once personal information is collected, states and their relevant agencies must ensure the protection of data against unlawful or arbitrary access. It is evident that governments have an obligation to develop legitimate counterterrorism measures and the rights of victims of terrorism should be the focal point when discussing the proportionality of such strategies.  However, governments with the necessary capabilities have institutionalized operations and legislation which is simply not compatible with the Right to Privacy under article 17.

And we do not have to look far for drastic examples. In November 2016, the British government passed the Investigatory Powers Bill, better known as ‘The Snooper’s Charter’, which is arguably the most extreme surveillance law in the western world today. The bill provides British intelligence agencies with extensive powers of snooping, recording and hacking of communications data, forces service providers to store details of customer online movement for 12 months, and makes this information accessible to dozens of public authorities. This bill, which astoundingly attracted little public outcry, effectively removes the right to online privacy and was scrutinized by the European Court of Justice.

Tensions between intelligence agencies and private technology enterprises

Despite the introduction of such worrying legislative measures, intelligence agencies have voiced concern that they are losing the technological edge over potential terrorists as tech companies are increasingly focusing on developing sophisticated encryption tools and software to reassure their customers’ privacy concerns. The rift between agencies and tech giants surfaced publically when Apple rejected an FBI order to unlock the iPhone used by the San Bernadino shooter Syed Farook. Other companies like Google and Facebook consequently doubled down on statements denying law enforcement agencies a backdoor access to their servers and products. Understandably, those with bad intentions can equally access proprietary encryption software and drop off the radar to avoid eavesdropping. Yet, it appears that major companies have formed a consensus to place a premium on user privacy and security, and warned of the potential implications of providing agencies with access to virtually any of their products. This move is likely to spread through companies dealing with vast amounts of user data as their customers are becoming increasingly wary about privacy concerns. Many messaging services such as ChatSecure or WhatsApp have options to encrypt content its users write and share. By using a virtual private network (VPN), users can circumvent geo-restrictions, censorship, and increase their security when online. Lastly, so-called ‘proxy servers’ hide the online traffic of devices and provide anonymity.

The road ahead

In their fight against terrorism, it is crucial for governments to take this balance seriously. The Investigatory Powers Bill flies in the face of the principle of proportionality and fails to protect individuals from arbitrary targeting. Ben Emmerson, Special Rapporteur on counterterrorism and human rights for the UN, has made important recommendations for the way forward. He calls for detailed and evidence-based public justification for the systematic surveillance of the online community, stresses the need for strong and independent oversight bodies to assess existing programs, and proposes case by case decision-making on the proportionality of interfering with an individual’s data.

If unchecked, the current technological capabilities of intelligence services have serious negative impacts on the privacy of everyone relying on modern technology in their daily lives. In the end, the question of surveillance and privacy falls in line with the greater theme of balancing liberty and security. There is an argument to be made that sacrificing more freedoms to ensure our security is a false choice. The NSA itself has failed to provide compelling evidence that its programs had directly thwarted any terrorist attack, thereby posing serious questions about effectiveness.

The question of liberty versus security is clearly an ideological one with no easy answers. Nonetheless, this debate is now more necessary than ever. Until this debate takes place in a meaningful and serious way, all that ordinary citizens can do is take small steps to protect themselves and their data when accessing the internet.

Felix (@felix_manig) is a postgraduate in International Relations at King’s College London. He focuses on conflict resolution strategies, political violence, and human rights. Outside of academia, he is Series Editor at Strife and advocates for human rights defenders across the world at Peace Brigades International. 

This Strife series focuses on intelligence in the digital age and will have contributions by Jessica Malekos Smith on Russian intelligence operations; on TOR and the challenges around anonymity by Charlie Campesinos; on Proprietary vs Open source encryption by Hemant S; on digital surveillance by Felix Manig and finally an interview with Prof David Omand of King’s College London on intelligence reforms in the UK. 

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