Print Friendly and PDF
only search openDemocracy.net

Critical masses, chilling effects, and coalitions

Intelligence sharing today is in essence a way for one agency to do the job that another can’t do because of the safeguards placed on it. Interview.  

wfd

Claudio Ruiz, Executive Director of the NGO Derechos Digitales, in 2014. Wikicommons/Comision Interamaericana de Derechos Humano Claudio Ruiz, Executive Director of the NGO Derechos Digitales, in 2014. Wikicommons/Comision Interamaericana de Derechos Humanos. Some rights reserved. openDemocracy (oD): Matthew, what do you do?

Matthew Rice (MR): I am an Advocacy Officer at Privacy International. I mainly work with our partners around the world, in Latin America, East and South Africa and Asia, providing them with the capacity to advocate for change in their domestic legislation.

oD: What type of support do they usually need?

MR: When we started the project we didn’t really understand the scope of the assistance we’d be providing today. I feel this is somewhat unique to the privacy issue. You first need to understand the fundamentals of ICT and communications surveillance, and also have a good grasp of the ICT infrastructures in your region. And then you move on to critically evaluating the legislative framework. So you have to understand the technology, and then you can start to think about what to do with the law. You have to understand the technology, and then you can start to think about what to do with the law.

Interestingly, this seems to be something that governments don’t do very often - instead they create the law for the purposes they deem necessary, not according to what you can realistically do.

oD: You published an article recently on openDemocracy describing the huge range of local initiatives you have worked with. Which do you find particularly interesting?

MR: The right to privacy was for a long time locked up in academic journals, but it’s becoming more and more of a grassroots issue now. For example, in Chile the organisation Derechos Digitales began to work with environmental activists who were struggling with land grabs. These activists didn’t necessarily think about privacy as something they should be focused on; their focus is on the protection of the environment and the protection of indigenous populations in some cases.

But they are a surveilled group. The policies of the Chilean government have a direct effect on their ability to do their work at a grass roots level. And that goes for everybody who is involved in any kind of progressive movement. All of these movements… are dependent on the right to privacy for achieving these goals.

In the US, many people are talking the talk about the surveillance of movements such as Occupy or Black Lives Matter. But that is not unique to the American system. We have similar developments from Pakistan to the Philippines. All of these movements have different primary goals, but they are dependent on the right to privacy for achieving these goals. That’s the case we are making. 

oD: There’s a lot of talk about the chilling effect of surveillance on activism, but it seems to be used almost exclusively in reference to movements in western countries. Is there awareness of surveillance among the movements you work with and does it result in the same effects?

MR: How do you make it safe enough, so that a critical mass can march with the activists, and still feel that they can then go back to their daily lives? My feeling is that a lot of the groups that we work with, mostly at the grassroots level, are quite vociferous, uncompromising, so they are going to be out in the street protesting anyway. But my concern is what happens to members of the public whom you need to engage in the debate if you want to achieve your goals as an activist movement.

So the challenge becomes – how do you make it safe enough, so that a critical mass can march with the activists, and still feel that they can then go back to their daily lives? Change happens if you can bring a lot of people into the circle, and the chilling effect can prevent that. That’s the danger, I think.

oD: There are restrictions in place forbidding your country’s intelligence agency from collecting information on you as a national, but, through international intelligence sharing, they could access information on you anyway…

MR: It’s really a game of jurisdictional arbitrage. GCHQ, for example, can’t collect the data of British citizens without going through a relatively long and complicated process, but the NSA can do it without a problem. The US can then share that information with the UK, without any additional safeguards. Intelligence sharing today is in essence a way for one agency to do the job that another can’t do because of the safeguards placed on it. New Zealand… want to be in the good books of the British.

It’s a bit of a popularity contest as well. You’ve got the Five Eyes network (UK, USA, Canada, Australia and New Zealand), plus the so-called Third Party partners. But the five main partners are so important politically and in terms of technological capacities that the Third Party partners, for example Tunisia, Singapour, Japan, even Germany, have to provide a high level of information to the Five Eyes to get information back.

Even New Zealand, the most junior partner of the five, gives GCHQ complete access to the databases of all the communications they are intercepting, because they want to be in the good books of the British.

This game is being played in diplomatic circles, behind closed doors, without any regulation. This is where the next fight is going to be. It is a very political fight, unfortunately, but we are trying to ensure that there is a human rights framework, which already exists, that applies to these kinds of operation as well.

oD: But will this fight actually take place? There have been some wins in the fight against mass surveillance, but you are up against such massive forces, and the momentum seems to be going the other way?

MR: It’s always going to be difficult for the average citizen, or the average NGO, to go against their state. It’s a matter of resources.

But if anything, take the reaction to the Snowden revelations in the UK. For a while, we thought that nothing would happen, that it wouldn’t catch in the same way as in the US. But we’ve had three landmark reviews insisting that there needs to be a drastic change in legislation, calling the present laws too confusing and undemocratic.

The UK Government had their hands forced, and they have had to change the way their intelligence services act and the legislative framework in which they are operating. But of course, now we have a new bill in front of us which is much broader in its powers and much clearer about this than was the case before. So we have to fight the bill, or work to improve it.

On the intelligence-sharing front, the UK and the US are the big dogs. When they move, in either direction, others notice. In 2014, a former British diplomat, Nigel Sheinwald, was tasked with reviewing the intelligence-sharing relationship. That report was shelved, and marked as at national security level, so that the public couldn’t see it. But parts of it have leaked.

This report concluded that the intelligence-sharing relationship between the UK and the US needed to be reformed at the treaty level. It said that the exchange of information needed to be actually codified. So for the first time ever, you have a government official saying that intelligence-sharing needs to be written down, not necessarily in law, but at least in a document that is associated with principles, policies, and legal ramifications.

oD: So, until today there was nothing regulating the exchange of information between the US and the UK, at least not since the UKUSA Agreement? The question is whether we can get a true account of what the new intelligence-sharing regime is going to look like, and if we’ll get any say in it.

MR: That’s right, the UKUSA Agreement was enacted just after World War 2. It pretty much provides the background for what became the Five Eyes as well. Parts of the MLATs also apply, but they focus on cooperation between law enforcement rather than intelligence agencies, which is why when we talk about intelligence-sharing this excludes law enforcement, for which there Is already quite a specific regime.

There is movement towards a change in the intelligence-sharing regime, but the question is whether we can get a true account of what the new regime is going to look like, and if we’ll get any say in it. This review of sharing with the US is going on in parallel to the Investigatory Powers Bill, which the UK government is trying to pass.

So, the fight goes on, but I wouldn’t have said we would be here only a few years ago. There is change, but it is often very invisible – either kept so deliberately, or due to lack of public awareness. We also have to work on that.

oD: If the Five Eyes countries move towards more codification, others will probably follow, and the network will keep expanding on the basis of the new treaty. Is this essentially the first step in terms of setting standards for a global network of surveillance agencies? What should our response be?

MR: We do a lot of work outside of Europe, but perhaps part of the answer needs to come from there. Perhaps part of the answer needs to come from Europe. There’s a big array of people working on the issue - academics, activists, etc.  – and if we manage to turn this into a sort of network that is able to organise and speak out more strongly on the issue, both on the domestic and regional level, that could provide a source of inspiration for other regions.

The targets we all have are the same – e.g. better user privacy, improving network security etc., and it’s easier to talk on an equal footing to the likes of Facebook and Google if we manage to federate regional groups that are dedicated to making change happen.

We need to bring together all the people who raise awareness of the issue, who write articles, develop software, or who submit freedom of information requests. Such a coalition will make the next steps in the fight against mass surveillance much easier.

There is an acute and growing tension between the concern for safety and the protection of our freedoms. How do we handle this? Read more from the World Forum for Democracy partnership.
About the authors

Matthew Rice is Advocacy Officer at Privacy Internationala member of the Don’t Spy On Us coalition. He tweets @mattr3.

David Krivanek is an Associate Editor of openDemocracy, and edits the digitaLiberties debate. He was previously editor of Can Europe Make It?, and currently works for an international organisation in Beirut.

Read On

wfd

More from the World Forum for Democracy partnership.


We encourage anyone to comment, please consult the
oD commenting guidelines if you have any questions.