“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” – states Article 12, Universal Declaration of Human Rights.
In early June this year, a young security contractor formerly employed by the NSA, CIA and Booz Allen Hamilton revealed highly classified US government information on a surveillance program in the form of presentation slides. He however fled the country before the files were released to avoid being captured.
This daring act of revelation, as expected, set off a cycle of denials, half-baked explanations and attempted justification on the part of the governments of the US and UK. The latest to be sopped up is the Brazilian journalist David Miranda, friend of the Guardian journalist Glenn Greenwald who has been releasing the classified cables. Miranda was detained at London’s Heathrow Airport and subjected to nine hours of interrogation.
The massive surveillance apparatus, codenamed PRISM, is part of a worldwide surveillance industry whose annual worth is five billion dollars. PRISM is a highly secretive program that allows the NSA to access user data from web-service providers like Microsoft, Google, Yahoo, Face book, AOL, Skype, You tube and Apple. The NSA-backed surveillance program collects metadata on geolocation that tap the time and duration of phone calls and the content of electronic communication like emails, video chats and texts. This assortment of clandestine spying programs operates under code-names like Stellarwind, ShellTrumpet and EvilOlive.
There was widespread public outrage after leaked PRISM slides revealed that the highly synchronized surveillance programs could intercept under-sea optic fibre cables to monitor the communication lines of an entire population. The PRISM program is legitimized by the Protect America Act of 2007. This Act sanctions the NSA to require companies like Facebook and Google to send user data to the government once the classified plan is approved by the FISA court.
Though Microsoft, Google, Apple and other major companies had initially denied knowledge and participation in the surveillance programs, on Wednesday AFP reported Yahoo CEO Marissa Mayer as saying that since data requests from the US government were classified information, she could not talk about it due to fears of incarceration for ‘treason.’
Privacy Laws-the local and the global
As Americans marched on July 4th organizing huge ‘Restore the Fourth’ rallies, what seemed to be appalling was that the NSA surveillance seemed to have been sanctioned by a court of law, the Foreign Intelligence Surveillance Act (FISA) court.
Given the global nature of all web-services, what is disconcerting is the lack of consistency in the applicability and content among laws governing privacy policies. Web companies find themselves in a fix between these very different legal regimes and companies with a presence in more than one country often face different set of rules. The lack of a clear global internet privacy regime has jettisoned customers’ privacy and compounded companies’ difficulty. A web-service provider in the US might have annexes and affiliates in many different countries with different privacy laws. Complaints regarding violation of a customer’s privacy is privy to the jurisdiction, of which, country remains a problem, as there are different approaches to privacy jurisdiction.
In 1995, Ministers of the Asia-Pacific countries met under the banner of the Asia-Pacific Economic Cooperation (APEC) to frame legislation governing internet privacy laws. Paragraph 12, Part II states “In view of the differences in social, cultural, economic and legal backgrounds of each member economy, there should be flexibility in implementing these Principles.” The stress placed on the plurality of the world has again underlined the problems inherent in drafting a unified legislation to protect internet privacy.
In 1981, member countries of the Organisation for Economic Cooperation and Development (OECD) framed a set of guidelines on the Protection of Privacy and Transborder Flows of Personal Data to address the conflict between protection and free transborder flow of personal data. More than a third of the then 24 OECD member countries had adopted national legislation by 1980. What assumes importance is that the OECD dossier to mark three decades of the OECD Privacy Guidelines singles out the US government’s Committee on Automated Personal Data Systems’ 1973 report, Records, Computers and the Rights of Citizens as the first explicit reference to “fair information practices.” In its recommendation concerning the guidelines on the Protection of Privacy and Transborder Flows of Personal Data, the OECD cites the following among others: “that member countries take into account in their domestic legislation the principles concerning the protection of privacy and individual liberties set forth in the Guidelines…”
Thus the OECD which is a grouping of developed nations, including the US, UK and Germany has similar concerns as the APEC when it comes to the conflict between the international and domestic laws regarding the protection of privacy on the web. So even if a US state department dossier is the vanguard to “fair information practices,” the Foreign Intelligence Surveillance Act and in turn the FISA court nullifies the global legal apparatus agreed upon by governments. When the NSA was caught snooping and spying, what truly shocked Americans and foreign governments was that the surveillance operations were legitimized by the FISA court.
Barrack Obama’s bulwark against the barrage of criticism has been that the NSA-sponsored surveillance programmes are aimed to secure the lives of Americans. For him, as for many others in the Congress, you cannot have hundred percent safety and zero percent inconvenience at the same time. The Purpose Specification Principle in Part Two of the OECD Privacy Guidelines to which the US is a signatory states: “The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfillment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.”
But the NSA thought it wiser to tweak this clause in the interest of national security.
American double games
Reports of the NSA targeting the Chinese, Russian, Brazilian and Mexican governments perhaps fall in line with the US policy of tracking countries that have a history of dissidence vis-à-vis American foreign policy. But what caused anger and disbelief was the revelation that the NSA had bugged the lines of communication of the Americans’ allies in their War on Terror and economic expansion. America’s trans-Atlantic partners like France and Germany had backed the US aggression in the east but Snowden’s leaks have set the former allies on a course of collision.
European leaders have expressed shock over reports that the US has been bugging their diplomatic missions, including the European Union and the United Nations General Assembly headquarters. A rift between the allies already shows with the French Presidency reacting firmly by threatening to suspend negotiations for a Trans-Atlantic Free Trade agreement.
US authorities have termed the spying on the German and French Foreign Ministries “a success story,” according to Der Spiegel reports.
Leaked classified information also reveals that Spain and Italy too have not been spared from NSA surveillance.
European resentment against the Americans’ spying activities might crystallize into a split between the Trans-Atlantic allies in their fight against terror. The usually hawk-eyed French have already registered their protest against US unilateralism by resisting strikes against the Syrian regime after reports of chemical weapon usage against the rebels. The lid seems to have been blown off from the double games and dirty wars that the US government has wheedled out of the false consciousness of national security. As Snowden put it, “I don’t want to live in a society that does these sort of things.”