By Vivian Newman*
Humanity invented the internet and it, in turn, transformed society. Not only do we now have the best communication tool, we also have a way of leaving traces of everything we do. This ability to trace our actions is vitally important for intelligence gathering, which is needed to further two legitimate objectives:
– defense and
– national security.
But the ease with which we are able to gather and scrutinize voices and data leads to abuses that affect other equally legitimate ends:
- freedom of expression,
- integrity and
- the enjoyment of life.
The tension between these two extremes can lead to 1) harmful behavior such as massive spying and data mining and 2) abuses like illegal wiretapping. The law regulates these types of violations, which in general terms we understand to be illegal spying, through norms and standards. However, these norms are created more slowly than the rapid pace at which technology advances, therefore there is often a disconnect between the rules and the reality they are applied to.
Three examples of obsolete rules:
1. Last December, a federal judge in Washington questioned the constitutionality of the US National Security Agency’s metadata surveillance program. In reaching its decision, the Court distinguished the case from Smith v. Maryland, considered a legal precedent, because it decided that technology had changed drastically since that case was decided in 1979. It also held that the NSA databases were different than the telephone lists in the Smith v. Maryland case because they were likely to be stored permanently, or at least for the entire period the US fought against terrorism, which could be forever!
2. In Europe, the few norms that have been created still do not work. The 2006/24/EC Directive on data retention is considered the most invasive instrument of people’s privacy in Europe. The rule allows member States to retain any type of data, through any type of authorization and without a specific list of crimes.
3. The recent revelation that the Colombian army was illegally wiretapping the peace negotiators in Havana, as well as 400 other dissidents and member of the opposition, calls into question whether Colombia has sufficient rules in place to guarantee security without infringing on other rights. President Santos, in an interview with the Colombian newspaper El Tiempo, responded with a smokescreen which may turn out to be useful. He argues that there is a cyberwar underway that is overwhelming current legislation. He notes that 80% of intelligence gathering is done using technology, with many grey areas and cyber-mercenaries, which justifies the government’s use of the same methods as a form of what he called cyber self-defense. He is basically saying that the best way to defend ourselves from hacking is to become hackers ourselves.
Nonetheless, it looks like using the same methods as the cyber-mercenaries may delegitimize the legal behavior of the government. Moreover, it is strange that Santos would call his own intelligence regulation obsolete if it is only three years old. But it is true that technology advances much more quickly and that the current regulation is not working.
Both in Colombia and elsewhere, we need to find ways to update internet surveillance norms in a rational manner.
What do we do?
Reading this blog entry from start to finish is a good start. It shows that at least there is some interest in this topic. Now we need to ask ourselves if we are the type of people who are willing to conform and hide behind indifference, or if we believe in the basic principal that together we are stronger. If you believe the latter, you probably know that the internet community has a great capacity for collective action. This community has successfully voiced its opposition to legislation like SOPA and PIPA in the US, and the Lleras Law in Colombia.
Today, February 11th, those organizations who voiced their opposition have been reinforced by more organizations and together they are leading a global campaign to stop massive internet surveillance and the illegal wiretapping it entails. One click, or tweet, or like, or meme, may not be enough, but if you participate in any of these digital forums you can contribute to the greater public debate on how to limit who or what can be subject to internet surveillance and help synchronize the protection of human rights with our current technological capabilities.
[This blog entry was published on February 11, 2014 in Spanish at Semana.com, you can find it here.]
*Vivian Newman, Deputy Director of Dejusticia (Center for Law, Justice and Society)