Cyber101x Cyberwar, Surveillance and Security - Week 4 - Privacy in context of Metadata and Surveillance

Privacy in context of Metadata and Surveillance



 DR REBECCA LAFORGIA: Surveillance is and always will be a political question. Who gets to look over your information? What do they get to do with it? Why are they looking at it? Surveillance is inherently about politics and power. Now, this political element is highlighted by UN reports which consider the right to privacy in the area of metadata and surveillance. Ben Emmerson, QC, is the current special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. And he reported to the General Assembly on counterterrorism and mass digital surveillance and metadata. He stated that "the international community needs to squarely confront this revolution in our collective understanding of the relationship between the individual and the State." Similarly, the General Assembly resolution located the right to privacy in the digital age in its political context. It affirmed that privacy leads to protecting rights which are, quote, "one of the foundations of a democratic society." The UN reports we will consider acknowledge that there is a core obligation that is relevant to rebalancing power and politics in mass digital surveillance, and that is the right to privacy. This right is contained in Article 17 of a treaty -- the treaty is the International Covenant on Civil and Political Rights. The Office of the High Commissioner for Human Rights notes, "The General Assembly resolution recalls international human rights law provides the universal framework against which any interference in individual privacy rights must be assessed." Before considering the content of the obligation, I want to reflect on the fact that the first and very important contribution which international human rights make, and privacy in particular provides, is stability. It's a way of engaging with this rapidly evolving world of metadata and surveillance. The United Nations reports from the Office of the High Commissioner for Human Rights and also from the special rapporteur that we will be considering were produced in 2014. And they were created due to increasing concerns as to the question of metadata surveillance and its relationship to privacy. Both reports do apply and interpret the international right to privacy in the context of this increasing surveillance through the collection of metadata. But the reports begin with a factual reality, that there is an increasing surveillance across the board. The High Commissioner for Human Rights notes, "Deep concerns have been expressed as policies and practices that exploit the vulnerability of digital communications technologies to electronic surveillance and interception in countries across the globe [have been exposed]. Examples of overt and covert digital surveillance in jurisdictions around the world have proliferated, with governmental mass surveillance emerging as a dangerous habit rather than an exceptional measure." I want to centre on this point. The reports consider the issue of metadata and surveillance as a global problem around the world, impacting both on citizens and on individuals outside of state borders, that is called extraterritorially. Through stepping back from a national perspective, the reports therefore frame the issue of increased surveillance as being subject to a universal right, to a conceptual idea that can apply to all and across the states, that of privacy. The effect of centering on core and stable rights, as contained in Article 17, is to produce a very important stabilisation of the debate around metadata and surveillance, which has the capacity to transcend the latest technology or surveillance scheme because often technology and covert actions seem relentless. For example, the special rapporteur reports and describes Prism and then Quantum. Consider his description of Quantum. "The agency is said to operate an internet exploitation mechanism called Quantum, which enables it to compromise third-party computers. The methodology reportedly involves taking secret control or ownership over servers in key locations on the backbone of the internet. By impersonating chosen websites (including such common sites as the Google search page), Quantum is able to inject unauthorised remote control software into the computers and Wi-Fi-enabled devices of those who visit the clone site, who will, of course, have no reason to doubt the clone site's authenticity. Technology experts assess that this methodology can permanently compromise the user's computer, ensuring that it continues to provide intelligence to the National Security Agency in the United States indefinitely." He goes on, though, to consider a virus called the Ambassador's Reception. It's from the United Kingdom. Quote: "Subsequent disclosures have focused on the role of the Joint Threat Intelligence Group in Government Communications Headquarters. This agency is reported to have deployed a computer virus called the Ambassador's Reception for the purpose of online covert action. This virus is said to be able to encrypt itself and act as a chameleon imitating communications by other internet users." Consider this, the Prism, Quantum, the Ambassador's Reception. And these will be replaced, and maybe are being replaced now, by further technological advances and actions. One of the issues in engaging with such a relentlessly developing area of technology, with its, quite frankly, dramatic and intriguing descriptions, is a tendency of being swept along, following each development and revelation. Human rights language, its first contribution is to offer a stability in such a rapidly changing area and therefore to enhance the capacity to engage in the debate politically, to give stable language in contrast to the relentless evolution of technological advances. I want to illustrate this through an analogy exploring the same relationship between technology and development, and the importance of stable human rights language, but just from a different perspective for a moment. Consider the evolution of weaponry, the technological advances, for example, Predator Reaper drones creating increased capacity for targeting. However, no matter what the evolution of technology in terms of weaponry, the human right to life remains, the human right to life as a core foundation idea stabilising the relentless development of technology. It remains a constant benchmark. In the same way, metadata and surveillance, there are endless terms for surveillance actions. There will be more being developed even now. But at the same time, human rights stabilises this relentless evolution. And through considering the right to privacy, there is a way of engaging, despite technological advances. This is an important contribution to political engagement. It enables demands to be made on the state, consistently and coherently, in a rapidly evolving area.