Privacy and Surveillance: A Comparative Analysis
Thesis By Liudmila Emelianova
Submitted in Partial fulfillment Of the Requirements for the degree of Bachelor of Arts In Communications and Mass Media
State University of New York
Empire State College
2017
Reader: Todd Nesbitt
Acknowledgements
I would like to express my deepest gratitude to the professors who contributed to my intellectual and personal growth, developed my critical thinking and significantly expanded my worldviews. A special thanks to my mentor Todd Nesbitt for his patience, cooperation, valuable advice and funny emails that made me laugh during the most stressful times. I am extremely thankful to Professor William A. Cohn for sparkling my interest in the issues of privacy and surveillance, and providing me with a lot of literature that widened my horizons. Also, I would like to thank my teacher back in Moscow, Andrey Shashkov, for preparing me for the 4-years journey at UNYP. He shared his thirst for knowledge and truth with me, and taught me to love learning. I appreciate my friends for their support and understanding. A special thanks to Natasha and Palina for being always there for me and for keeping me sane and strong during the last month of writing the senior thesis. Most importantly, I am eternally grateful to my parents for their love and support, both financial and moral, for always believing in me and supporting all my ideas and endeavors.
Abstract
In the digital age the line between the ‘public’ and the ‘private’ has become blurred.
People voluntarily share a lot of personal information on the Internet, while quickly advancing technology makes surveillance more omnipresent and difficult to detect than ever. Technology itself is neutral; however, when placed in the wrong hands, may allow serious social implications. Thus, with regard to surveillance programs, technology has allowed great intrusions in peoples’ privacy by making it possible to collect and analyze private data of millions citizens in a real time. Even though surveillance is usually justified by a greater cause in legislation in many countries, the reasons for making an individual the subject of surveillance are not articulated specifically enough, which opens the door for governmental abuse. Consequently, people live in the environment where the personal information of every single individual may be collected without specific connections to terrorism or crime, and solely because the intelligence agency of a particular country may find it important to be intercepted. This paper analyzes the relationship between privacy and surveillance. It argues that surveillance by the governments can be justified only in the cases where the reasons for such surveillance are legitimate and specifically indicated in the legislation of a given country providing citizens a comprehensive indication of the circumstances, in which their privacy can be intruded.
Table of Contents
Introduction ...... 5
Chapter I. Conceptualizing Privacy ...... 7 I. I. Defining Privacy ...... 7 I.II.The Importance of Privacy ...... 10 I. III. The Public and the Private ...... 11 I. IV. International Privacy Law ...... 15 I. V. Privacy in the Digital Age ...... 19
Chapter II. Conceptualizing Surveillance ...... 24 II. I. Defining Surveillance ...... 24 III.II. Surveillance Old and New ...... 25 II. III. Concepts of Surveillance ...... 27 III. IV. Surveillance Ethics ...... 30 III. V. Secrecy ...... 32
Chapter III. Case Studies ...... 35 III.I. United States ...... 35 III.II. France ...... 42 III.III. Russian Federation ...... 48 III.IV. Conclusion of Analysis ...... 53
Conclusions and Summary ...... 56
Appendix ...... 59
Reference List ...... 60
Bibliography ...... 70
Introduction
In June 2013 Edward Snowden provoked a debate on where the public domain ends and the personal one begins. He shed light on the mass surveillance programs that had been undertaken by the National Security Agency of United States and demonstrated the scope of intrusions into private lives of the citizens by the government. Snowden’s revelations did not leave neither American nor international public indifferent. However, it would be naïve to suppose that United States is the only country practicing the programs of mass surveillance.
The technological progress advanced intelligence methods and made the practices of surveillance more effective, however, more intrusive as well. Additionally, the development of the internet unprecedentedly transformed the way people communicate and share their information. Consequently, in the modern age the line between the
‘public’ and the ‘private’ is blurred. On the one hand people share a lot of personal information online voluntarily; on the other hand, surveillance practiced by the governments today is more omnipresent and difficult to detect than ever before, which opens the door for the abuse of technology.
Privacy is an intangible concept. However, its value goes beyond that of an individual: it is vital for the democratic process. The legal foundation of privacy is also relatively new: it started developing only in the very end of the 19th with an article published by Samuel
Warren and Louis Brandeis in the Harvard Law Review advocating the legal recognition of the right to privacy.
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Despite the fact that in the modern world most of the countries protect privacy in one way or another, it is usually balanced against the interest of the national security, and the latter seems to be always prioritized in such a dichotomy.
This paper shall analyze the relationship between privacy and surveillance. Specifically, it will look at the question of surveillance by governments in the name of security, in order to understand to what extent such activities are acceptable. To do that, the paper will discuss scholarly approaches to privacy and its legal foundations, the concepts of surveillance and its social implications. Furthermore, the paper will examine surveillance programs and the legislation enabling those programs in selected countries (United States,
France, and Russia respectively) aiming to understand to what extent these programs violate the right to privacy in the digital age as well as the possible consequences for society.
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Chapter I. Conceptualizing Privacy
The purpose of the following chapter is to understand and conceptualize the meaning of privacy by looking at the complex aspects shaping the discourse around it, leading to the understanding of the importance of privacy for the democracy. Furthermore, the chapter will analyze the dichotomy of the ‘public’ and the ‘private’, discuss the development of the international privacy law and implications of technology for the notion privacy.
I. I. Defining Privacy
The word privacy is very commonly used but, most probably, it has a different meaning and value for different people. Indeed, privacy is a sweeping concept and even scholars have difficulties agreeing on a common specific definition of its concept due to its complexity. Privacy may include freedom of thought, control over information of oneself, control over one’s body, solitude in one’s home, protection of one’s reputation, freedom from searches and interrogations, and freedom from surveillance (Solove, 2002:1088).
All the aspects mentioned above appear to be essential for freedom and democracy and that is why the concept of privacy raises such concerns.
International expert in privacy David J. Solove argues that the concept of privacy can be understood under six general subsets: 1) the right to be let alone; 2) limited access to the self; 3) secrecy; 4) control over personal information; 5) personhood; and 6) intimacy
(Solove, 2002:1092). Each aspect will be examined to better understand the intangible concept of privacy.
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The concept of the right to be let alone is most commonly associated with Samuel Warren and Louis Brandeis who wrote their famous article the Right to Privacy in 1890 in United
States. Even though Warren and Brandeis were not the first ones to coin the phrase “the right to be let alone”1, they have invented the legal theory that focused on a common right to privacy that had already existed in common law before (Solove, 2002:1100). Almost forty years after publishing the right to Privacy Louis Brandeis wrote a dissent to
Supreme Court decision on Olmstead v. United States where the court held that wiretapping did not violate the Fourth Amendment as it does not involve a physical trespass into one’s home (Solove, 2002:1001). In his dissent that was adopted by the court and led to overruling the Olmstead v. United States Brandeis wrote that, “the right to be let alone - the most comprehensive of rights and the right most valued by civilized men”
(Olmstead v. United States, 1928).
The limited access theory was first mentioned by an attorney and an editor E.L.Godkin, a contemporary of Warren and Brandeis, advocating that “nothing is better worthy legal protection than the private life, or, in other words, the right of every man to keep his affairs to himself, and decide for himself to what extent they shall be the subject of public observation and discussion”(Soma, 2014:18). The theory was later advanced by Sissela
Bok, who wrote that “privacy is a condition of being protected from unwanted access by others – either physical access, personal information, or attention” (as cited in Solove,
2002:1103). Theory advocates that privacy is a continuum between no access to the self and total access to the self, however, where the line is drawn remains unclear (Solove,
2002:1104).
1 T. Cooley used it before in his Treaties on the Law of Torts in 1880. 8
The next aspect of privacy is secrecy or secrecy of certain matters. As Canadian psychologist Sidney Jourard (1966:307) wrote in Some Psychological Aspects of Privacy, it “is an outcome of a person’s wish to withhold from other certain knowledge as to his past or present experience and action and his intentions for the future”. Consequently, concealment of information involves secrecy. This part of privacy concept is similar to the limited access to the self-theory and can be regarded as subset of it, because it is narrower in a sense that it involves only concealment of personal facts.
Another aspect of privacy is control of personal information. American scholar Alan
Westin defined privacy as a “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Solove, 2002:1109). However, understanding what constitutes personal information is so complex because it is both an expression of self and a set of facts based on historical records of one’s behavior (Solove, 2002:1113). Furthermore, personal information is not all the information identifiable to that individual. The knowledge that a person is a famous writer is identifiable to him, nevertheless, it cannot be regarded as private (Solove, 2002:1111-1112).
Personhood is another aspect commonly associated with privacy protecting the integrity of the personality including individuality, dignity, and autonomy of an individual
(Solove, 2002:1116-1118). Personhood can be regarded as a subset of privacy, which evolved from the notion of “inviolate personality” mentioned in Warren and Brandeis’s
(1890:205) The Right to Privacy and later articulated by an American jurist and law professor Paul Freund as the “attributes of an individual which are irreducible in his self- hood” (Solove, 2002:1116).
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The last aspect of privacy as conceptualized by Daniel J. Solove is intimacy, which is essential for human relationships and interactions. The value of privacy here expands to the development of intimate relationships (Solove, 2002: 1121), which some believe would not occur without privacy (Elliot, 2010:489). Some academics claim that intimacy is no exclusive to the private domain, which can be simply proven by plentiful occasions of reasonably intimate acts performed on public. However, the defenders of privacy’s integrate value for intimate relationships argue that intimate acts brought to public simply lose their characteristic of being intimate and private (Elliot, 2010:490).
In general, privacy appears to be such a troubled concept additionally due to the lack of agreement on the definitions of the aspects underlying privacy, such as intimacy, for example. These concepts are intangible and have different meanings for different people; thus, it is problematic to define what exactly should be protected when talking about privacy.
I.II. The Importance of Privacy
Back in the 17th century, a French philosopher Blaise Pascal said that “all of humanity's problems stem from man's inability to sit quietly in a room alone” (as cited in Burkeman,
2014), which was recently paraphrased by Noam Chomsky in the talk on privacy in
March 2016 as “the root of man’s misfortunes is the lack of a room where one can sit quietly and undisturbed” (Chomsky, 2016).
Even though, as it was stated above, the meaning of privacy varies form one person to another, its value is undisputable. Louis Brandeis referred to privacy as to the right to enjoy one’s intellectual products (Warren & Brandeis, 1890). The former NSA specialist
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Edward Snowden extends this argument to the claim that privacy is a foundation for all the other individual rights since freedom of speech, for example, has no meaning if people do not have time and space to determine what they think independently and freely
(Snowden, 2016).
Privacy is often regarded as an individual right. It becomes noticeable when the interest in privacy is balanced against the interest in security. While in such a dichotomy the former is always considered as an individual interest, the latter is attributed a high social value and is regarded as a public interest. Thus, Israeli-American sociologist Amitai
Etzioni critiques privacy as an individual liberty, which does not trump all the other concerns for the common good (Simcox, 2000). Additionally, he claims that privacy is not an absolute value and that in certain cases, when it interferes with a greater common good, it should be sacrificed (Solove. 2008:761).
On the contrary, American philosopher John Dewey (1909) argues that the individual rights are the protections from the intrusiveness of the society and suggests the idea that an individual’s good cannot be separated from the overall good of the society, because humans are not “extent social beings” and, therefore, individual rights should be valued based on their contribution to the welfare of the society. Furthermore, he adds that the
“value of protecting an individual is a social one” as the rights are designed to protect individuals from the intrusiveness of society (Solove. 2008:762).
I. III. The Public and the Private
The categories of ‘public’ and ‘private’ have always played an important role in setting the boundaries of social life, however, the distinction between the two notions has never
11 never rigid. It is important to point out that these concepts are related and cannot be regarded separately, which adds complexity to classification of these notions
(D’Entreves, 2001:2). These terms started to be regarded as complementary entities especially since the development of the modern societies (Mahajan & Reifeld, 2003:11).
Moreover, the meaning embodied in the concepts of ‘public’ and ‘private’ is constantly shifting due to different contexts and changes in the society and, therefore, these concepts should be regarded without simplification (Mahajan & Reifeld, 2003:1-2). The overview of the development of the concepts is essential for understanding the roots of the dichotomy and their social implications.
The Chronological Development of ‘Public’ and ‘Private’
The concept of ‘public’ and ‘private’ have a long history in the Western world. Its origins can be found in the philosophical debates of classical Greece regarding the life of the city- state, in which citizens gathered to discuss the issues concerning public interest and to forge a social order aimed towards common good (Thompson, 1995:120); in other words, exercised direct democracy. Already in the 4th century BC Aristotle differentiated oikos and polis (Mahajan & Reifeld, 2003:9). The former referred to the world of the household, which was considered the private. Reversely, the latter implied a public domain where political decisions were made. However, it is important to mention that in ancient Greece only a small layer of society was entitled to citizenry, which empowered them to influence public decisions and exercise the so-called direct democracy; neither the slaves, nor women or foreigners were considered citizens (Mahajan & Reifeld, 2003:10). Generally, in these terms the distinction between the ‘public’ and ‘private’ is related to dichotomy of collective and self.
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Later, the explicit formulation of the two distinct terms was coined during the early development of the Roman law, which treated public and private law separately from the
Roman conception of the res publica (Thompson, 1995:120). Then, during medieval times, the meaning of the concept was shifting due to the redefinitions of the domains they referred to.
From the middle of the 16th century the word ‘public’ started being used to describe the activity or power deriving from the state, while ‘private’ was used to refer to all the rest of the activities excluded from it (Thompson, 1995:121). This understanding of dichotomy was quite similar to the distinction between the concepts of the state and that of the civil society since the most common use of the latter can be found in Hegel’s philosophy, interpreted as a “sphere of private individuals, organizations and classes, which are regulated by civil law and formally distinct from the state” (Thompson,
1995:121). Based on this definition civil society falls under the ‘private’ domain.
However, there is another reasoning for distinguishing ‘public’ and ‘private’, which emerged in mid-16th century as well, understood ‘public’ as ‘open’ for the society or
‘available to public’ (Thompson, 1995:123). In other words, ‘public’ was something that was visible and open for people, whereas, ‘private’ was something hidden from the public view. The concept of privacy started implying certain level of secrecy due to which the dichotomy of publicness versus privacy is often understood as the opposing concepts of openness versus secrecy (Thompson, 1995:123).
The notion of the private is tightly connected to the idea of individualism as this philosophy evolves around the individual rather than around the society; this is similar to
13 the dichotomy of ‘private’ and ‘public’, as well as to the ideas of liberalism, which emphasizes the importance of the individual freedom. Hence, the notion of private was coherently articulated only in the 19th century with the emergence of the political philosophies mentioned (Mahajan, 2003:15). John Stuart Mill (1869) discussed the distinction between the ‘public’ and the ‘private’ in On Liberty:
“As soon as any part of a person's conduct affects prejudicially the interests of
others, society has jurisdiction over it, and the question whether the general
welfare will or will not be promoted by interfering with it, becomes open to
discussion. But there is no room for entertaining any such question when a
person's conduct affects the interests of no persons besides himself, or needs not
affect them unless they like (all the persons concerned being of full age, and the
ordinary amount of understanding). In all such cases there should be perfect
freedom, legal and social, to do the action and stand the consequences”.
Thus, John Stuart Mill (1869) saw the ‘private’ as a part of one’s life concerning only himself, on the contrary to the ‘public’ concerning other members of the society as well.
It is important to mention that both the ‘public’ and the ‘private’ are enhancing democracy since both of them hold attributes essential for the democratic process. Thus, the ‘public’ is related to public sphere as defined by Habermas (1991), which is “a domain where a public opinion can be formed”. Public opinion or, in other words, opinion concerning members of the society is an essential attribute of the civil society, while the civil society is an integral part of democracy. On the other hand, the ‘private sphere’ is a sector of one’s life where a person has authority over his actions since this sphere concerns only himself, as defined by John Stuart Mill (1869). Thus, it is a domain in which people are left alone and are able to exercise their individual rights and liberties.
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I. IV. International Privacy Law
Privacy is most countries is protected by their constitutions. When the right to privacy is not explicitly mentioned in the constitution it is usually recognized by the courts in such countries as France, Canada, Germany, India, and Japan (Solove, 2002:3). Additionally, privacy is recognized as a fundamental human right by the United Nations Universal
Declaration of Human Rights of 1948 (art. 12). Article 12 states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation” (The United Nations, 1948). Everyone has the right to the protection of the law against such interference or attacks (The United Nations,
1948, art.12). Two years later the European Convention of Human Rights concluded that
“everyone has the right to respect for his private and family life, his home and his correspondence” (Council of Europe, 1950, art. 8).
Nevertheless, the same document of the European Convention of Human Rights adds that the exception to inviolability of privacy can be made when it is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (Council of Europe, 1950, art.
8). Therefore, even though privacy is a fundamental human right, it still should be sacrificed in certain cases where the overall public interest is prioritized. In other worlds, privacy as a value is weight against common good, such as security and public safety.
The development of the international legal protection of privacy is necessary for the subsequent analysis of the relationship between privacy and surveillance.
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The Chronological Development of Privacy Law
The origins of privacy law go back to 400BC when Hippocratic Oath as a first expression of a duty of medical confidentiality was recorded Ancient Greece (Solove & Schwartz,
2013:9). Centuries later in 1361 Britain, Justices of the Peace Act criminalized eavesdropping and Peeping Toms (Justices of the Peace Act 1361), which is more related to privacy as we understand it today. Then in 1604 English judge Sir Edward Coke declared that “the house of everyone is to him as his castle and fortress”, which set certain limitation on how sheriffs could enter one’s house to issue writs and is also known as
Semayne’s Case (Solove & Schwartz, 2013:9).
Subsequently, the US Constitution was adopted in 1789 with its 21 original amendments also known as the Bill of Rights, the first, third, fourth, and fifth of which are concerned with privacy in one way or another (Solove & Schwartz, 2013:9). The First Amendment advocates the privacy of belief declaring that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Const., Amen. I). The Third
Amendment is protecting one’s privacy at home: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law” (US Const., Amend. III). The Fourth Amendment protects people from “unreasonable searched and seizures” and grants the right to be secure in one’s “persons, houses, papers, and effects” (US Const., Amen, IV).
Additionally, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”, where the probable cause is left for the court to be decided (will be
16 discussed in greater detail in chapter III). The part of the Fifth Amendment protecting a person from witnessing against himself, particularly related to privacy is the following:
“be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” (US Const., Amen. V.).
Undoubtedly, the Right to Privacy of 1890 by Samuel Warren and Louis Brandeis became the ground for the legal recognition of privacy, which led to acknowledgement of privacy torts by several states already in 1903-1905 (New York was the first state to recognize privacy tort) (Solove & Schwartz, 2013:9-10). Almost forty years after publishing the right to Privacy Louis Brandeis wrote a dissent to Supreme Court decision on Olmstead v. United States of 1928, where the court held that wiretapping did not violate the Fourth
Amendment as it does not involve a physical trespass into one’s home (Solove &
2002:1001). In his dissent, Brandeis wrote argued that “the right to be let alone - the most comprehensive of rights and the right most valued by civilized men” (Olmstead v. United
States, 1928). This dissent influenced the subsequent enacting of the Section 605 of
Federal Communication Act of 1934, which limited wiretapping and defended secrecy of many conversations transmitted through the public wires (Solove & Schwartz, 2013:10).
In 1967 Katz v. United States overturned Olmstead v. United States and set a new standard of determining the Fourth Amendment applicability extending it to all the areas where a person might have a “reasonable expectation of privacy”; in other worlds, this landmark court ruling set a “reasonable expectation of privacy test” (Katz v. United States, 1967).
One of the most important steps for the legal recognition of privacy internationally was the adoption of the Universal Declaration of Human Rights by the UN in 1948 protecting the right to privacy in Article 12 (The United Nations, 1948). Following this European
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Convention on Human Rights was adopted in 1950 protecting privacy as a right in article
8 (Council of Europe, 1950). The right to privacy was restated as “the right to respect of privacy, family, home, and correspondence, and protection of honour and reputation” during the 32nd Session of the UN Human Rights Committee in 1988 (The United
Nations, 1988).
Furthermore, the first comprehensive information privacy statute was adopted in
Wiesbaden, Germany by the Hessian Parliament in 1970 (Solove & Schwartz, 2013:11).
In the following decade Germany and France adopted Data Protection Acts in 1977 and
1978 respectively (Solove & Schwartz, 2013:11).
The emergence of the Internet forced certain new international regulations to appear. The
Internet started being used by academia already since 1980s; by the Western public by the mid 1990s (Internet Society). In 1980 Organization of Economic Co-operation and
Development adopted “guidelines governing the protection of privacy and transborder flows of personal data” (OECD, 1980) setting the framework on how the personal data should be used. The guidelines include 8 principles limiting the conditions under which personal data can be accessed as well as the guidelines for the way personal data should be accessed (OECD, 1980).
In 1995 the EU Data Protection Directive was adopted focusing on regulation of the processing of the personal data within the European Union and on free flow of this data at the same time (the European Parliament, 1995) This framework has been guiding the personal data access in European Union for 21 years, however, on the April 27th, 2016
(applying from May 25th, 2018) a new regulation has been adopted aiming to modernize
18 the old directive, adopting it to the digital age and encouraging innovation by simplifying certain procedures essential for businesses.
Most importantly, the new regulation will unify data protection regulations within
European Union ending the “patchwork of data protection rules that currently exists” as it has been referred to in the European Commission’s press release (European
Commission, 2015). The Article 1 of the General Data Protection Regulation states the following:
“The protection of natural persons in relation to the processing of personal data is
a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the
European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning
of the European Union (TFEU) provide that everyone has the right to the
protection of personal data concerning him or her” (Official Journal of European
Union, 2016).
I. V. Privacy in the Digital Age
It would not be an exaggeration to say that the Internet is one of the most influential and powerful inventions of humanity. This technology has revolutionized the way information is being disseminated and communicated. The internet integrates the capability of online broadcasting around the globe, information dissemination, and interaction of individuals regardless of their location. It is important to mention that the earlier inventions of telegraph, telephone, and radio set the ground for an unprecedented integrated technology which internet represents (Internet Society). Today almost a half of the global population uses internet, which emerged as a small network of American researches less than half a century ago in 1969, aiming to avoid the doubling of already
19 existing research as well as to simplify the means of information sharing (Internet
Society). By the 1985 internet was already established as technology supporting a far- reaching community of scientists (Internet Society). By the middle of 1990’s the Internet was already being globally used for commercial purposes (Internet Society). Since 1995 the Internet has been gradually growing and if in 1995 its users numbered 16 million people, 27 years after the commercialization Internet has 3,732 million users (Internet
Growth Statistics).
Initially, the Internet, as a computer network for scientists, was created within the public sector (Chomsky, 2016). It was believed to be vitalizing democracy by providing a free and uncensored platform for expression of ideas. Internet has many highly significant positive sides, such as being a platform for citizen journalism, activism, and simply global access to the information that was otherwise unavailable. However, internet has a few important downsides as well. The most significant threat of the Internet applicable for this paper appears to be surveillance as the Internet, among other things, provides an unprecedented possibility of information gathering.
Technology itself is neutral. If the early developers of the internet regarded Internet as a new free public sphere; today it is clearly seen that interests of the private persons online, including that of privacy, are usually balanced against those of the state and big corporations, which represent unaccountable powers (Chomsky, 2016). The latter interest in data collection can be explained by the desire of understanding the behavioral habits online. Subsequently, it results in the targeted advertising, which the internet is overloaded with, and in the specifically shaped information presented to each user, which
20 is also known as a filter bubble (Pariser, 2011). The interests of the former will be analyzed in subsequent chapters.
Understanding how social networking sites (SNS) function is an essential when addressing privacy issues. Over 75 percent of the overall Internet population uses social networking sites (Caumont, 2012), such as Facebook, Instagram (owned by Facebook since 2015), Pinterest, LinkedIn, and Twitter (written in the sequence of popularity). The primary reason people use these social networks is connecting with people either for personal (Facebook) or professional purposes (LinkedIn). Upon registration to these social media platforms, users are required to publish information about themselves that helps other people to find them online. People can decide how much personal information they want to disclose and set up the settings regarding the scope of audience able to view this information.
An American copyright and fair use privacy expert Lauren Gelman (2009: 1329) argues that the design of the social networking sites generates the “aura of privacy” by suggesting that the users are the ones deciding who has access to their personal information.
However, this is just an illusion, since all the personal information submitted to the social networks remains there (Gelman, 2009: 1326). Prior to 2013, the vast majority of the
Internet and social media users, in particular, had privacy expectations according to their privacy policies. Based on the information disclosed by Edward Snowden about the
PRISM program such companies as Google, Facebook, Yahoo, Microsoft, and Apple were providing National Security Agency and Federal Bureau of Investigation with direct access to the personal information of its users (Greenwald, 2013). The threats to privacy as well as the American case in particular will be discussed in a subsequent chapters,
21 however, PRISM program is an excellent example of the potential electronic surveillance governments and corporations can take advantage of thanks to the new technologies.
Furthermore, problems with privacy online arise from the fact that in many cases people disclose a lot of private information voluntarily, trying to shape their identities online and, thus, extending their physical selves into the online world. Given that human beings are social animals, they have the need for others to know what is happening in their lives and social media just provided an excellent platform for fulfillment of such needs. However, even though, as it was mentioned above, internet users are not always informed about the way their information is being collected, stored and processed, there is an expectation of privacy only as long as the information is inaccessible or kept secret. In other words, privacy expectations do not exist after the information is disclosed (Martin, 2016: 552), which stresses the fact that the notion privacy in the digital age is transforming.
As Warren and Brandeis wrote, “the right to privacy ceases upon the publication of the facts by the individual, or with his consent” (Warren & Brandeis, 1890:218). Therefore, if this principle is applied to the contemporary environment of the digitalized world, there should be no expectation of privacy for the personal data disclosed on the SNS voluntarily. An example of the legal support for this principle can be found in a relatively recent decision of a Californian Court of Apeal Moreno v. Hanford Sentinel, Inc. when the court ruled that republication of the republication of an essay posted by another person on MySpace.com did not constitute an invasion of privacy (Cal. c. of app. Moreno v.
Hanford Sentinel, Inc No. F054138, 2009).
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Another danger for privacy to consider is coming from the users themselves; from their reluctance to read the privacy policies of all the applications and devices they use.
Additionally, it is strengthened by the legal language used in those document, which makes it unintelligible for an average user as if the users were not supposed to understand those documents in the first place (Bannan, 2016, Fuchs, 2011:142). However, it is feasible that the general public has become more concerned about its right to privacy after
Snowden’s revelations, which can be justified by the number of new encryption policies adopted by such companies as Google, Microsoft, Yahoo, WhatsApp etc. American investigative journalist Glenn Greenwald claims that the recent changes in the Silicon
Valley companies’ privacy policies can only be explained by the fact that these companies do not want to lose their customers caring about privacy, rather than by their own sudden concern about privacy issues (Greenwald, 2016).
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Chapter II. Conceptualizing Surveillance
For the purpose of understanding the social implications of surveillance, this chapter will analyze its positive and negative aspects, and thoroughly examine the differences between traditional and modern surveillance enforced by advancing of technology.
Subsequently, the main theoretical concepts in surveillance studies will be discussed through observation of the social and ethical aspects of surveillance. In conclusion, the implications of surveillance secrecy will be addressed.
II. I. Defining Surveillance
The word ‘surveillance’ originates from the French ‘surveiller’ (‘sur’ – ‘above’ or ‘from above’ and ‘veiller’ – ‘to watch) (Fuchs, 2011:136). It is also related to the Latin word vigilare, implying something threatening or sinister happens beyond the view of authorities (Marx, 2015:734). The Concise Oxford Dictionary defines surveillance as
“close observation, especially of a selected person”; however, it is important to point out that digital surveillance technologies observe not only the selected suspects (which will be discussed later in the chapter) (as cited in Marx, 2002:10).
According to Daniel J. Solove, “surveillance is watching, listening to, or recording of an individual’s activities” (Solove. 2006: 490). American sociologist Gary T. Marx (2015:
734 defines it as an “attendance to others” with a central characteristic of “gathering some form of data connectable to individual”. Similarly, David Lyon (2009:2) points out that surveillance implies some focused and intensive attention to objects, data, or persons.
Christian Fuchs (2014: 213) stresses that the term ‘surveillance’ itself implies a relationship of asymmetrical power, hierarchy, and domination. While the emphasis of
24 the definitions varies from one to another, all of them seem to agree on the collection of certain form of information from a person (surveillance subject) by a surveillance agent
(a person/group of people/institution performing activities of data gathering).
III.II. Surveillance Old and New
Surveillance can be looked at from two different perspectives. A comparative analysis of new surveillance versus traditional one is essential for understanding the role of technology in surveillance methods and identifying its social implications.
As a series of practices, surveillance is as old as history (Lyon, 2009:1). Throughout history surveillance occurred as a means of collecting information and overseeing the actions of others. The traditional and new forms of surveillance include intelligence agents, espionage, police interrogations and postal interception. Additionally, traditional surveillance includes such everyday practices as searching for the source of a sudden noise or unfamiliar scent as a form of non-technological surveillance (Marx, 2015:736).
As technology was advancing, surveillance methods and practices were gradually changing and modern technologies used in surveillance, such as closed circuit television cameras (CCTV), radio-frequency identification (RFID), and global positioning system
(GPS), for example, help to evaluate the extent to which surveillance has progressed.
Technology has allowed the ability to extend the capabilities of information gathering, to normalize invasions into private lives, and to make surveillance technologies more difficult to be detected, which are called amplification, routinization, and sublimation respectively (SANS. 2002).
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Talking about high-technological surveillance, it is important to point out that while some methods, such as CCTV have the literal aspect of watching over, (which is embodied in the word ‘surveillance’), other methods facilitated by information and communication technologies (ICTs) rely on the processing of data online (Lyon, 2009:3). Surveillance methods that are based upon collecting, storing, and processing metadata are also regarded as dataveillance (van Dijk, 2014: 198). For instance, Roger Clarke defines dataveillance as a “systematic monitoring of people’s actions or communications through the application of the information technology” (as cited in Fuchs, 2012: 1).
Technology allows surveillance at a distance as compared to the non-technological surveillance, which requires proximity and copresence of the surveiller and the surveilled
(Fuchs, 2012: 15). Additionally, ICTs enable the increased reach and capacity of surveillance systems (Lyon, 2009: 3). Consequently, the two main characteristics of digital surveillance are the wide-spread geographical reach and the continuity and routineness of monitoring.
Furthermore, the Internet ensures globally networked surveillance (Fuchs, 2012:3).
Contrary to targeting specific information, which used to be the primary aim of interrogations or spying, high-technological surveillance allows those in power to gather much more data than originally intended (Solove, 2006:495), which is also constantly enhanced by the growth in volume of personal data (Lyon, 2009:3,16). Thus, the aspect discussed give those in control of the technology significantly increased possibilities and power.
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The Internet has its own power structures, and as a tool of outstanding potential it is used by groups that are trying to maintain their dominance and control, and those who try to resist their domination (Fuchs, 2012: 6). Furthermore, technology has allowed surveillance to become omnipresent, which is additionally enhanced by the decrease in the cost of new surveillance, making it more difficult to detect and defeat (Marx,
2015:735).
The table 1. (in appendix) effectively summarizes the differences between traditional and new, technologically advanced surveillance.
II. III. Concepts of Surveillance
Just like privacy, surveillance is a multidimensional concept. Generally, the notion of surveillance has both positive and negative aspects. Surveillance is sometimes regarded as a response to a threat, as well as a threat itself (Marx, 2015: 733).
Gary T. Marx argues that surveillance itself is neither good nor bad; however, the context and the comportment make it so (2015:733). By the context he refers to the goals, procedures, and expectations an institution engaged in surveillance pursues as well as on the type of institution itself; whereas by the comportment Marx means the conduct of those in several surveillance roles (Marx, 2015:734). Furthermore, Marx is also arguing that surveillance can be protecting privacy, mentioning biometric identification and home security video cameras as an example of surveillance technologies respecting or specifically aimed to protect privacy (Marx, 2015: 736).
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Christian Fuchs has a slightly different approach to surveillance. He argues that there are two concepts differentiating this practice: neutral and negative (Fuchs, 2011:135). The best known example of the neutral approach to surveillance was articulated by Anthony
Giddens, who claims that surveillance is “a characteristic of all societies” and defines it as “the collection and integration of information put to administrative purposes” (as cited in Fuchs, 2011: 135). Overall, the neutral concept emphasizes the positive aspects of surveillance, defining it as any kind of information gathering, while acknowledging its both enabling and constraining characteristics (Fuchs, 2011: 135).
Nevertheless, Christian Fuchs criticizes the neutral approach for overgeneralizations
(“any form of information gathering is surveillance”) and false analogies between different form surveillance practices may take (e.g. electrocardiogram for a myocardial infraction patient as one form of surveillance and pervasive state-surveillance for fighting terrorism) and claims that this approach helps legitimize surveillance as coercive and disciplinary power (Fuchs, 2011: 136). In critical theory, surveillance is generally connected to the gathering of information for the purposes of domination and coercion
(Fuchs, 2014:213). Thus, Manual Castell regards surveillance as a technology of control
(as cited in Fuchs, 2012:2).
Perhaps the best known negative theory on surveillance is the one by Michel Foucault
(1977); he described surveillance as a form of disciplinary power and described it as
“permanent, exhaustive, omnipresent” (Fuchs, 2014:214, Foucault, 1977: 214).
Foucault’s (1977: 187) principle of “compulsory visibility” finds its origins in the concept of Panopticon elaborated by an English philosopher Jeremy Bentham (1843). This work
28 of architecture intends to allow the watchman to observe all the prisoners from the central tower surrounded by the cells, while the prisoners could not see if they are being watched or not, thus, creating a notion of the possibility of being watched at any given moment
(McMullan, 2015). The idea of Panopticon originates in Russia aiming to increase the productiveness of the workers by enforcing the idea that they are being watched all the time. This was meant to increase discipline, obedience, and submissiveness of the subjects being watched (Bentham, 1843). It is worth mentioning that Foucault extended the idea of Panopticon to a greater number of institutions, such as schools, hospitals, mental institutions, thus, placing it in a larger context.
Similarly, to Bentham and Foucault, George Orwell (1949) talks about social control in his dystopian novel 1984. He describes it as “the world in which we all could be watched at any moment”, which certainly influences the way people behave even when in private.
The sole thought that you can be watched any time forces people to act as if they are actually being watched all the time, and makes them more submissive and fearful
(Greenwald, 2016).
In the digital world today Bentham’s Panopticon is often used as a metaphor for the modern surveillance; for example Gordon talks about “electronic panopticon” created by the mass surveillance programs online (as cited in Fuchs, 2012:1). It is difficult to judge to what extend the general public was aware of the existing electronic surveillance prior to Snowden’s revelations; it is still quite difficult to evaluate the part of the population alert to the digital surveillance. However, it is reasonable to assume that the number of citizens concerned about surveillance online has significantly grown since 2013. In the post-Snowden era the similarity with Panopticon does not seem illegitimate since the
29 general public has been informed about the mass surveillance programs demonstrating the potential of technology for the governmental use and abuse, while the vast majority of the programs are still being carried out.
The biggest difference between Bentham’s Panopticon and modern mass surveillance, however, is the intangibility of the latter (McMullan, 2015). The tangible elements of the central tower in Panopticon or the telescreens from the Orwellian world represented the physical instance indicating the ability of being watched or overheard at any given time
(Bentham, 1843, Orwell, 1949).
In contrast with surveillance online, people do not feel exposed, which leads to assume that Internet users do not constantly restrict what they write or search for online.
Nevertheless, the knowledge that this information might be collected and used for certain purposes may lead to a chilling affect influencing the overall freedom of expression online resulting in self-censorship (McMullan, 2015). In other words, there might be certain topics people will choose not to discuss online, whether through social media, email, or online calls, once knowing that they can possibly be monitored or intercepted.
Likewise, Glenn Greenwald elaborates on this idea by arguing that “mass surveillance creates a prison in the mind” (Greenwald, 2014).
III. IV. Surveillance Ethics
When talking about surveillance, electronic mass surveillance by the government in particular, the question of ethics appears to be crucial. Surveillance can be regarded as means to achieving certain goals.
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The two main theories that can be applied when discussing the ethics of surveillance are deontology and utilitarianism. According to deontological principle of Categorical
Imperative, nobody can be treated as means to achieving certain goals, no matter how important or honorable. In the case of surveillance, it would mean that if the methods used in surveillance are unethical, they cannot be justified regardless of the results.
Additionally, the reciprocity principle would imply the universal application of the rules, which leads to the following question: would the people responsible for surveillance agree to be its subjects if the roles were reversed? (Marx, 2013).
On the contrary, utilitarianism emphasizes the maximization of utility and asserts that legitimate goals can justify potentially troubling means of achieving them. Reflecting this on surveillance issues would imply that if privacy of citizens is intruded for the sake of the greater good if can be justified.
Based on these contrasting theories, it can only be possible to presume that categorical surveillance (without cause) is unethical per se, while ethicality of particularized surveillance (only with cause) would depend on the cause and consequences of it as well as on the theories chosen to justify it (Marx, 2015: 739).
In the case of governmental surveillance, the most common goal trying to be achieved by means of surveillance is safety, whether it is fighting terrorism or any kind of crime. It is essential to mention that surveillance has been expanding since the beginning of the 21st century in response to the international terrorism, even though the actual threat of a terrorist attack today is lower than 20 years ago in Western Europe, for instance
(datagraver, 2016). In contemporary discourse the needs for prevention potential threats
31 are addressed much more than the appropriateness of mass surveillance programs (Marx,
2013). It is done by the politicians, intelligence agencies, and media, and gets supported by the general public, for whom safety is much more appealing and comprehensive than the abstract concept of privacy. Moreover, media constantly creates fear of potential attacks, which reinforces general public’s acceptance of pervasive surveillance programs even if it impedes some individual rights. Thus, it is noticeable that security is being used as a justification for pervasive surveillance.
Generally, the complexity of the concepts involved in surveillance and its subsequent social implications makes it highly complicated to find a single ethical solution to a problem. The theories discussed above provide the two opposite views on the problem.
However, even though the latter (utilitarianism) seems to be the one governments resort to in justifying their surveillance programs, the balance between endangering individual liberties and rights (means) and strive for security (ends) should be found.
III. V. Secrecy
Is it ethical to collect private information of million citizens without their consent?
Moreover, is it ethical to keep surveillance programs secret while they affect the lives of ordinary citizens and the society as a whole? These questions set the discussion around the degree of secrecy governments should be allowed to have.
Talking about the acceptability of secrecy by the governments it is important to differentiate between totalitarian and democratic governments. In a totally totalitarian system government has no obligation to reveal any information about its actions to the citizens, while the citizens are supposed to disclose everything about themselves to the
32 government (Marx, 2015: 738). On the contrary, in a fully open, democratic society the government must reveal everything to its citizens, who, in return, divulge only what they want to the government (Marx, 2015: 738). Both examples are unrealistic extremes, however, they provide a comprehensive model of a relationship of the government and its citizens regarding secrecy of the former and information collection of the latter depending on the regime.
In the western discourse, the idea that the government should be accountable for its activities, while the citizens should have their right to be let alone is embodied in the language. Such terms as “private individuals” and “public officials” imply the private sphere individuals should be able to enjoy, while the government, on the contrary, should be visible and transparent to the public. This idea dates back to liberalism placing the burden of proof on the government (Chomsky, 2016).
Undoubtedly, there are cases where the disclose of certain information, such as publication of names of the possible terrorists, may jeopardize the process of investigation. Some may argue the sole disclosure of the existence of the scrutinized surveillance programs may have consequences on people involved in certain kinds of crimes: they may become more protective about their personal information. However, it is logical to assume that those who are actually guilty of certain crimes already protect their identities and personal information as thoroughly as possible.
Moreover, the current situation regarding surveillance, mass electronic surveillance in particular, demonstrates that the most privileged member of society are able to undertake decisions that are influential for the society as a whole in complete secrecy and darkness,
33 in addition to engaging in pervasive surveillance on its citizens (Snowden, 2016).
Likewise, David Lyon (2009:33) argues that “the politics of information in the 21st century will increasingly be about how to increase the accountability of those who have responsibility for processing personal data”, which also requires an alert vigilance from the citizens, known as sousveillance (Marx, 2015: 735).
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Chapter III. Case Studies
In order to better understand the relationship between privacy and surveillance, the comparative analysis of surveillance systems in three selected countries will be conducted: United States, France, and Russia respectively.
III.I. United States
The main legal provision protecting the right to privacy in United States is its Fourth
Amendments to the Constitution:
“The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized” (US Const., Amen, IV).
Snowden’s Revelations
In June 2013 Edward Snowden introduced the debate about where the borders of private life end and those of the government begin (Ellsberg, 2013). The former National Security
Agency (NSA) contractor and system administrator revealed numerous documents which shed light on existing surveillance programs enabling the United States government to spy on the citizens worldwide under the pretense of terroristic threats and started a massive discussion on where the means of fighting terrorism end and mass surveillance starts. The programs leaked by Snowden violate Article 12 of United Nations Universal
Declaration of Human Rights as well as the Fourth Amendment shown above. The further analysis of the NSA programs helps to prove this.
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Verizon
At first, it has been disclosed that Verizon Telecommunications Company has been providing the National Security Agency on an ‘ongoing, daily basis’ with metadata of all its customers (Greenwald, 2013). The secret Foreign Intelligence Surveillance Court
(FISC) order authorized this program on the 25th of April, 2013 and the program was in place until the 19th of July 2013 (The Guardian, 2013). This court order enabled the NSA to collect information gathered from Verizon customers without an individual warrant.
This information the NSA received legal access to included time, position and duration of all local and international telephone calls made by United States citizens, also referred to as metadata, but not the actual content of the telephone calls (Greenwald, 2013).
However, metadata allows to recreate the whole story of person’s activities, but not necessarily the true one (Snowden, 2016). Additionally, metadata is very valuable for intelligence agencies because it provides them with essential information about an individual, however, its processing does not require ‘labor-intensive human analysis’ unlike the actual content of the conversations (Kadidal, 2016).
Furthermore, communication records were collected extensively regardless of whether a person was suspected in any crime, which implies that any person could potentially become a target (Greenwald, 2013). This program was ruled illegal in May 2015 (ACLU v. Clapper). It remains unknown whether Verizon was the only communication company providing the NSA with metadata on its clients or not (Greenwald, 2013).
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PRISM
Subsequently, it was revealed that the National Security Agency has been practicing another surveillance program called PRISM since 2007. Thanks to this program the NSA was able to access directly the servers of Google, Facebook, Apple, Microsoft, YouTube,
Skype, Yahoo, PalTalk and AOL and collect ‘E-mails, instant messages, videos, photos, stored data, voice chats, file transfers, video conferences, log-in times and social network profile details’ (Luckerson, 2013). While defenders of the program argue that the data of unsuspected citizens is collected “not willingly” (Kessler, 2013) and the critics see it as a back-door for the US government to collect personal information without a warrant, the program expires only in the end of 2017 (Ackerman & Saddiqui, 2016).
Tempora
It was also revealed that British spy agency GCHQ was storing a vast amounts of global emails, search histories, Facebook posts, and telephone calls and shared them with the
NSA (McAskill, 2013). This network system was running for 7 years, between 2007 when the Prism program was first introduced and 2014 (Bowcott, 2015). The activities performed by the GCHQ and the NSA with regard to this program were ruled illegal in
2015 by the Investigatory Powers Tribunal (Investigatory Powers Tribunal, 2015).
XKeyscore
XKeyscore is a US equivalent of the British Tempora. This system permitted the NSA analysts to search through and collect a vast database of emails, social media activities, and search histories with no prior authorization or warrant (Gellman, 2013, Greenwald,
2013). According to the NSA training materials, XKeyscore is the ‘widest-reaching’
37 intelligence system in the world (XKeyscore presentation from 2008, 2013). Edward
Snowden added that this program allowed him wiretap anyone, from a regular citizen to a president, if he had a personal email (Greenwald, 2013). The picture below graphically demonstrates the algorithm of XKeyscore.
Picture 1. The Guardian (2013, July 31). XKeyscore: NSA Tool Collects ‘Nearly Everything a User Does on the Internet’.
Up till today, journalists have disclosed more than 7000 secret and top-secret NSA documents provided by Edward Snowden (Szoldra, 2016). However, he obtained an overall of up to 1,5 million documents, encompassing everything he ever interacted with in his career (Harding, 2014). Today only 700 of these document have been revealed to public, which comprises less than 1% of the entire archive (Szoldra, 2016). Therefore, the programs mentioned above are certainly not the only ones Edward Snowden leaked
38 about, but even this insignificant knowledge shows that surveillance practice undermines privacy.
Patriot Act 2001
After the tragic events of September 11, 2001, government officials were able to collect pervasive personal information through the reinforcement of the Patriot Act, which was established within a week after the terrorist attack. Particularly, Section 215 of the
Patriotic Act is noteworthy. Since the legal framework of the Patriot Act permitted NSA officials “access to certain business records for Foreign Intelligence and international terrorism investigation” under reasonable suspicion (Patriot Act: Section 2015), the US government substantially increased the scope of its domestic and foreign spying programs, which can be clearly understood from several programs discussed above.
Furthermore, collecting and searching the telephone metadata of American citizens was first authorized by the United States Federal International Surveillance Court (FISC) in
May 2006 without any intention to prove that such actions are constitutional (Cole, 2014).
Section 215 does not seem to support the mass surveillance programs practiced by the
NSA. It approves collecting business records only if they are “relevant” to an authorized counterterrorism investigation. Nevertheless, the NSA has been able to collect all records of all Americans without any clarification why they might be related to terrorism, demonstrating how a state security agency can function in complete secrecy.
Additionally, it explains why no justification of the NSA’s actions with regard to mass surveillance has been given (Cole, 2014). Furthermore, it represents an example of authority abuse by the government, which is prohibited by the Fifth Amendment to the
US constitution (U.S.Const. Amand. V).
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USA Freedom Act 2015
The USA Freedom Act is responsive to the Snowden’s revelations and was adopted in
June 2015 as the Patriot Act (improved in 2005) expired in the end of May the same year.
The Freedom Act limits the pervasive collection the millions Americans’ telephone calls metadata to the ‘greatest extent reasonably practical’ (as cited in The Washington Post,
2015) since December 2016 (Kadidal, 2016). According to the new act the NSA needs to meet two requirements to collect data from phone companies, unlike before, when it could secretly collect all the data it could handle. Firstly, a “reasonable, articulable suspicion” that a person is related or associated with international terrorism activities (USA Freedom
Act, 2015). Secondly, the record details of a particular phone call must be relevant to a specific investigation (USA Freedom Act, 2015).
In addition, another change enhanced by the Freedom Act is that now the telephone companies remain the repositories of the metadata they collect, unlike before, when the companies were passing all data to the NSA (Siddiqui, 2015). However, the only program leaked by Snowden the Freedom Act is sufficiently tackling, is Verizon. There was little or no change in policies with regard to the rest of the programs (Kadidal, 2016).
Nevertheless, even the advocates of the Freedom Act admit that there are other ways the government could be getting access to the records easier than it seems from the act
(Kadidal, 2016), which is partially rooted in the fact that metadata has less legal protection than the content of phone calls (Smith v. Maryland, 1979).
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Effectiveness of NSA Surveillance
The main widely accepted assumption is that government surveillance and seizures of personal data essentially help terrorism investigations can be refuted. The most damning fact about the NSA surveillance programs is that they were proved ineffective. An independent investigation panel Privacy and Civil Liberties Oversight Board thoroughly examined the classified information under the programs of the Patriot Act and actions of the FISC, concluded that there is “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack” (“Report on the Telephone Records Program Conducted under Section 215”,
2014). There is even no evidence that the collection of the metadata has provided any substantial security improvement. Moreover, no instance would prove that the telephone records programs brought substantial difference in the outcome of the counterterrorism investigations (Cole, 2014).
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III.II. France
The right to privacy in France is protected by the Civil Code:
“Everyone has the right to respect for his private life. Without prejudice to
compensation for injury suffered, the court may prescribe any measures, such as
sequestration, seizure and others, appropriate to prevent or put an end to an
invasion of personal privacy; in case of emergency those measures may be
provided for by interim order” (C.Civ Ord. n. 70-643Art. 9, 1970).
The attacks on Charlie Hebdo in January 7th, 2015 motivated French authorities to strengthen the security of the country by all the means, including those of the intelligence.
On March 19th, 2015 the new Intelligence Act was introduced to the French Parliament by the Prime Minister Manuel Valls and enacted on July 24ththe same year (Treguer,
2016:1). The new law adds a new chapter to the to the Code of Internal Security aiming to modernize work of the French intelligence. The new Act as well as its precursor, the
Wiretapping Act of 1991, will be examined to understand how French intelligence methods correlate with the Article 9 of the Civil Code granting citizens the right to privacy demonstrated above.
Wiretapping Act of 1991
Prior to 1991, the interceptions into the telephone records did not have any legal ground in France, which was condemned by the European Court of Human Rights (Treguer,
2016:4). The Wiretapping Act of 1991 was adopted with the goal of regulating telephone wiretaps protecting citizens’ telecommunications from intrusions unless it was in the interests of law enforcement of national security (Tomlinson, 1993: 1141). In this manner,
42 the act authorized the magistrates and the prime minister to wiretap the correspondence of the private communications, including their content (Treguer, 2016:10).
Notably, the act set a framework for an oversight of the intelligence community actions establishing a committee (CNCIS - Commission Nationale de Contrôle des Interceptions de Sécurité) regulating telephone interception comprising of magistrates and members of the Parliament (Treguer, 2016:10). According to the procedure, the prime minister had to notify CNCIS about every wiretap within 48 hours; if the committee found the request unreasonable, it could write an official recommendation to end such a wiretap (Treguer,
2016:11). Nevertheless, there was still a backdoor for the DSGE (Direction Générale de la Sécurité Extérieure) to collect the wiretaps even in the case of refusal from the CNCIS as the Article 20 of the act ensured the unaccountable interception of wireless transitions exclusively in the interest of the national security (LOI n° 91-646, 1991, Treguer, 2016).
Consequently, it was questionable whether the act adequately incorporated the new human right and constitutional norms (Tomlinson, 1993:141).
Starting from the end of the 1990’s international and supranational organization started to adopt resolutions on the best functioning of the intelligence agencies with accordance to the democratic principles, which was failed to be met in the wiretapping act of 1991
(Treguer, 2016:11). Additionally, legal experts knew that the act was also contradicting new interpretation of the Article 8 of the European Convention of Human Rights (ECHR) established in court case in 1985:
“the law must be sufficiently clear in its terms to give citizens an adequate
indication as to the circumstances in which and the conditions on which public
authorities are empowered to resort to this secret and potentially dangerous
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interference with the right to respect for private life and correspondence” (Malone
v. The United Kingdom, 1985)
Furthermore, since at the time of the 1991 act the internet was not yet widely accessible, regulations regarding internet surveillance were developing based on the interpretations of the existing act secretly starting from the end of the 1990’s (Treguer, 2016).
Remarkably, after adoption of the Patriot Act by the US government, French authorities passed a new law forcing its telecommunication companies to store telephone and internet metadata; while the scope of that metadata was identified only in 2006, the retention period of the data was specified only in 2014 (Treguer, 2016:14-15).
Wiretapping Act of 2015
A new wiretapping act was first announced by the French prime minister the day after the attack on the National Bardo Museum in Tunis on March 19th, 2015, who claimed that it would not to be a ‘French Patriot Act’ (New York Times Editorial Board, 2015). The new modernized act significantly expands the scope of the reasons for surveillance that now include national security, prevention of terrorism, collective violence, attacks on the republican nature of institutions, foreign policy, major economic and scientific interests of France (Art. L. 811-3, Art. L. 811-4, 20152).
Additionally, the act 2015 permits the use of a real-time scanning devices called ‘black boxes’ (‘boites noires’) that can be installed to the telecommunications companies’ infrastructures ‘for the sole purpose of prevention of terrorism real-time processing
2 All the subsequent articles discussed in this subchapter (France) are from the Intelligence Act 2015 ((Projet du Loi Reltif au Renseignement n. 2015-912) 44 techniques may be imposed on the networks of the telecom operators and hosting providers in order to detect communication that are likely to reveal terrorist threat
(Treguer, 2016:4, Art. L. 851-2-1). Besides that, the act covers internet and telephone wiretapping of metadata, which needs to be authorized within the renewable period of 4 months (Treguer, 2016:4). Moreover, after the 2016 Nice attacks, the act’s article permitting real-time metadata monitoring was extended by a bill allowing to target not only individuals ‘identified as terrorist”, but also “likely to be related to a threat” or belonging to “the entourage” of the individuals “likely to be related to a threat” (as cited in Treguer, 2016:59).
Regarding internet surveillance, the prime minister is authorized to decide which international communications online are subjects for analysis; he is required to issue an authorization justifying such analysis (duration of the authorization depends on the data needed to be collected) (Treguer, 2016). Furthermore, hacking for intelligence gathering for the duration of 30 days is also authorized by the act, including the “access, collection, retention and transmission of computer data stored in a computer system”, displayed on computer screen, or transmitted by audiovisual devices (Treguer, 2016:5-6, Art. L. 851-
1, Art. L. 852 -1, Art. L.853-2).
The new act replaced CNCIS with the new oversight committee CNCRT (Commission nationale de contrôle des techniques de renseignement, which now included a technical expert from a telecom National Regulatory Authority besides executive and judiciary representatives; however, article 20 of the 1991 act survived the modernization of 2015
(Tregeur, 2016:3). Most importantly, according to the new act the power of the oversight committee is restricted significantly as compared to the act of 1991: CNCTR has 24 hours to submit a noncomplying opinion regarding surveillance authorizations previously
45 introduced by the Prime Minister before the surveillance starts (Treguer, 2016: 3).
Additionally, there is an exception of the “absolute emergency”, which allows to avoid consultancy with CNCTR (Art. L. 821-5).
In conclusion of the act’s description, it is important to mention that the specific data retention periods are mentioned in the act of 2015. Thus, nationally collected metadata can be stored for 4, while the content of communications for 1 months (period starts after decryption, it encrypted); internationally collected metadata can be stored for up to 6 years, while the period of the content depends on specific cases (Tregeur, 2016:8).
Criticism
One of the major criticisms of the act include the vague definition of the legitimate target as well as for the expansion of the reasons justifying surveillance (New York Times
Editorial, 2015, CNNum, 2015).
An independent French advisory commission on the issues related to digital technology and civil liberties CNNum (Le Conseil National du Numérique) wrote a report concerning the scope of surveillance granted by the new act the day it was introduced and suggested the reinforcement of the guaranties and the means of democratic control (CNNum, 2015).
CNNum mentioned that the methods introduced in the new act had a lot of resemblance with the form of mass surveillance and referred to the inefficiency of a similar approach to the counterterrorism intelligence practiced by the US (UNNum, 2015). Furthermore, the committee expressed its strong concern about the ‘significant extension of the perimeter of the surveillance’ over the interests of national security, as discussed above
(CNNum, 2015).
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Similarly, to CNNum, a French advocacy group La Quadrature du Net promoting freedoms of citizen in digital space took a legal action and submitted several legal briefs against the Intelligence Act of 2015 to the French Council of State, aiming to demonstrate that the provisions of the act are contradicting fundamental human rights (La Quadrature du Net, 2016).
The criticism of the act spread over the non-governmental organization defending civil liberties. For instance, a republican politician Jean-Jacques Hyest criticized the work of
DGSE arguing that it is unacceptable to use article 20 (referring to the article dating back to the act of 1991 permitting unaccountable interception of wireless communications in the name of the national security) for everything (Follorou, 2016).
Likewise, Marc Trévidic, who was a tribunal magistrate at the High Court of Paris
(Tribunal de Grand Instance de Paris) dealing with terrorism, crimes against humanity and war crimes, highly criticizes the new act calling it “a fatal instrument if placed into the wrong hands” (Calvi, 2015). Indeed, as it is seen from the description of the act’s main aspects, a lot of authority is given to the prime minister and people in charge of surveillance with little judicial and oversight of their actions. However, it is notable that if compared to NSA surveillance, DSGE has at least some overseeing committee that is authorized by the law itself. And furthermore, French surveillance laws are publically accessible for public scrutiny, which is actively happening in France now, unlike NSA documents that were seen by the public only thanks to Edward Snowden.
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III.III. Russian Federation
Article 23 of the Russian Constitution de juro guarantees privacy of individual and integrity of all the correspondence. However, it is balanced against the article 55 which says that the liberties and freedoms of Russian citizens can be limited by the federal law in the sole cases of preserving constitutionality, morals, health and legal interests of other individuals, national defense and security (Const. Of R.F., 1993). Thus, the article 186 of the Russian Criminal Procedure Code states that telephone and other records of an individual can be controlled and recorded if the reasonable suspicion that such records have information essential for the investigation is proven to the court (Art, 186(1), 2001).
SORM
In general terms, Russian intelligence system functions under three major provisions:
SORM-1 covering telephone and mobile phone communications; SORM-2 intercepting internet traffic; SORM-3 encompassing all the communications including Wi-Fi and
Social Networks and stores data for three years (Soldatov, 2015, Lewis, 2014).
The system enabling the Federal Security Service of Russia (FSB) to intercept all the electronic communications of its citizens is called SORM: System of Operative
Investigative Activities (Systema Operativeno-Rozysknikh Meropriatiy) (Soldatov,
2015). Initially, the system developed on the basis of the former KGB’s research center
(Soldatov, 2013).
The legal regulations of SORM was provided only in 1997 by the order of the Russian
Federal Ministry of (Global Legal Monitor, 2016). The order obliged telecommunications
48 companies and servers’ providers to purchase and install interception equipment at their premises as a requirement of staying in business (Art. 5 order from, 1997, Feb. 18).
Additionally, telecommunications providers have to sign a non-disclosure agreement ensuring the FBI access to the communications of their network (Global Legal Monitor,
2016).
It is worth mentioning that that order of the 1997 setting the regulation for the communications between the intelligent services and telecom providers focuses on the power of the former and obligations of the latter without explanation of the reason for such a legislation (Order from 1997, Feb. 18).
In 1999, the Constitutional Court of Russian Federation examined the SORM and concluded that this legislation does not violate article 23 of the constitution if “conducted for the public good and performed after obtaining the judicial approval” (Ruling N. 18-
O/1999). Most importantly, the court stated the subject of surveillance does not need to be informed about interception of his communications until he is accused of crime, which set the ground for the legal secret surveillance (Global Legal Monitor, 2016).
In 2000, a new order regarding SORM was enacted, specifying that the provisions ruled by the Constitutional Court, namely that 1) neither telecom providers, nor intercepted individuals should be informed about surveillance; 2) the FBI needs to obtain a warrant to eavesdrop, however, without addressing the question of whether telecom providers are allowed to ask for this court order (Art.2 order from 2000, July 25, Soldatov, 2013, Global
Legal Monitor, 2016).
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In 2005, a new order was issued permitting the FBI to wiretap communications online.
The order required telecom providers to install a new special equipment providing the
FBI with access to their communications from their own office or anywhere else needed
(Kodachigov, 2008). If prior to 2005 intelligence agent had to come to the offices of the internet providers to intercept communications, now the real-time ‘distant monitoring’ is legalized, unburdening the FBI from any possible oversight (Kodachigov, 2008,
Soldatove, 2015).
Zakharov v. Russia
In 2015, the European Court of Human Rights reviewed the case of Zakharove v. Russia and ruled that SORM violate Article 8 of the ECHR (Right to Privacy) by failing to provide “any requirements concerning the content of the interception authorization” and by insufficient verification of “the existence of a ‘reasonable suspicion against the person concerned” (as cited in Global Legal Monitor, 2016). Most importantly, ECHR concluded that SORM legislation lacks effective safeguards from the governmental abuse (Global
Legal Monitor, 2016). However, as of today, no changes in SORM legislation have been introduced.
Semantic Archives
Additionally to SORM, Russian intelligence services use other programs for intercepting communications online, such as Semantic Archive. Its idea is to monitor all kinds of open sources online, such as social networks and blogs for analysis by building charts of connections; however, this program is incapable of monitoring closed accounts
(Soldatov, 2013). This inconvenience for the FSB was partially solved by compelling the companies renting out the space on servers to provide security services with the access to
50 the servers without informing the website owners renting the space (Soldatov, 2013). This provision helped the FSB to deal with the closed accounts of the Russian-based social networks, such as Vkontakte, however, the inconvenience with the companies hosting their servers outside of Russia, such as Facebook, remained.
Law on the Personal Data Storage 2014
As of September 2015, a new Federal law on the processing and storage of the personal information of the Russian citizens passed in July 2014 was enacted, specifying the requirements (Walker, 2015). The major implication of the new law is the requirement for the personal information of the Russian citizens to be stored only on the servers located on the Russian territories in order to provide ‘recording, systematization, accumulation, storage, refinement’ such data (Federal law 242-ФЗ of 2014, July 21).
Thus, the new law grants Roskomnadzor (Federal special service supervising communications) an authority to require service providers to delete web platforms failing to meet the requirement of the personal data storage inside the country (Lenta.ru).
The new law certain uncertainties regarding the type of the platforms requires to store personal information online. While Google agreed to store personal data (Razumovskaya,
2015), LinkedIn is no longer available in Russia due to the noncompliance with the new law (Walker, 2016). Interestingly, after the announcement of the new law Facebook strongly refused the requirement to move its servers to Russia (the information about
Facebook representatives with Roskomnadzor remain undisclosed), but the website is still functioning in Russia (Roskomsvoboda, 2015). From the perspective of internet surveillance, the new law seems to provide the legal ground for the interception of the communications of the companies previously stored their servers abroad.
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Ethics of Russian Surveillance
An excellent case demonstrating the ethics of Russian surveillance is the one with Boris
Nemtsov (an opposition leader murdered in Moscow in 2015). Not only his phone calls were wiretapped without any authorization, but also posted on a pro-governmental sites
(Soldatov, 2013). Moreover, all of his requests for an official investigations gave any outcomes and not a single culprit was found (Soldatov, 2013). Thus, on top of intruding peoples’ privacy Russian authorities in charge of intelligence leak personal records to the public.
Furthermore, during the annual hotline program where selected viewer can ask pre- recorded questions directly to the president, Edward Snowden asked Vladimir Putin if
Russian authorities “intercept, store or analyze in any way the communications of millions individuals” (as cited in Lewis, 2014). “Thank God, our services are strictly controlled by the state and society and are strictly regulated by law” – answered the
Russian president. (as cited in Lewis, 2014). If in opinion of the Russian the law regulation implies its subordination and amendments to the needs of the unaccountable activities of intelligence services, then he did not alter the reality with his worlds.
However, the analysis of the Russian communication intelligence systems and regulations presents a very different scenario. Therefore, Vladimir Putin is either uninformed about the FBI routine surveillance activities (which is peculiar given his early career as an FBI’s intelligence agent) or the whole conversation with Edward Snowden was a very unethical public relation campaign.
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III.IV. Conclusion of Analysis
Although there are many differences in surveillance systems of selected countries analyzed, there is a common trend among all of them: government’s interest in law enforcement stands higher than the interests in privacy.
All countries discussed seek to justify the invasion of the private lives of their citizens by their surveillance programs, however, the degree of such initiatives varies. Thus, the US focus on national security and countering terrorism; France adds collective violence, attacks on the republican nature of institutions, foreign policy, major economic and scientific interests to this; and Russia, in its turn, simply uses the phrase ‘for operative investigation activities’ with no further clarification of the nature and importance of such activities in the legislation (e.g. orders of 2000, 2005). Moreover, all of the selected countries lack the legal precision of the reason for the legal interception of communication or collection of one’s personal information.
In the cases of United States and France, the major legislations regarding personal information collection were adopted in response to terrorism. Indeed, after terrorist attacks people are less concerned about the counterterrorism methods, which are about to be applied, and how they might affect them in the future; besides, in times of crisis people are more agreeable to sacrifice their personal freedoms to protect themselves and improve security against potential attacks than normally. This is called the “ratchet effect” and implicated to be the suitable conjuncture for the government to constitute anti-terrorist laws (Givens, 2013). It also has to be mentioned that due to the emotions provoked by the terrorist attacks, the laws adopted instantly are more “reflexive” than “reflective”. In other words, these laws are more likely to be based on emotions rather than on analytical
53 and logical thinking (Givens, 2013). Furthermore, in both French and Russian cases, it is visible that the governments could tailor their legislations according to their practical needs of more efficient and pervasive surveillance programs (e.g. French Wiretapping
Act 1991, Russian order of 2005).
Additionally, there is a difference in oversight ensured by the legislations of the selected countries. If French Wiretapping Act clearly outlines the existence of the committee responsible for the oversight, even though its power is not so significant, there are no such bodies in the Russian or American systems protected by the intelligence legislation itself.
Nevertheless, while all the countries discussed have certain official documents available for the public scrutiny (e.g. the Patriot Act of 2001, the Wiretapping Act of 1991, order of Russian Ministry of Communications 2000), Snowden’s revelations prove that government can practice the programs of mass surveillance in complete secrecy. Thus, it remains unclear if those official documents of the countries that are in the public domain form the whole spectrum of surveillance programs actually used by the governments.
Therefore, the major concern with regard to surveillance programs is the accountability of those who are practicing them. Therefore, balanced and objective oversight of those programs by the independent institutional bodies is essential. For example, there is a lot of criticism towards to new wiretapping at in France supported by the legal actions of the civil liberties groups and other non-governmental organizations. This is an example of critical actions by the civil society that may contribute to the changing of existing legislation. Similarly, revelations of Edward Snowden provoked massive debates about governmental surveillance everywhere around the globe and in the US in particular, which was one of the major reasons for the adoption of the USA Freedom Act in 2015.
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Even though, this act does not change and does not even address all the programs disclosed by Snowden, it is already a step forward in a continuous fight for privacy.
55
Conclusions and Summary
It is important to understand that mass surveillance programs may affect every person regardless of whether he or she committed a crime or not, or has even been a target of an investigation. The problem appears to be more crucial because it is problematic to distinguish where counterterrorism ends and mass surveillance begins. Technology has made it possible to collect pervasive amounts of information with a single click.
Technology itself is neutral; however, its effects entirely depend on how it is being used.
As it se seen from the examples of the three countries discussed above, technology enables mass surveillance and can be easily abused.
“I’ve got nothing to hide” argument used by people not recognizing the significance of privacy, is often used to claim that it can be sacrificed in the name of security. It is interesting to point out that this argument finds its origins in the Nazi Germany when the minister of propaganda Goebbels wrote that if “you have nothing to hide, you have nothing to fear” (York. 2015). Today argument is usually shaped in a slightly different manner, such as “if you are not doing anything wrong, what do you have to find?”
(Solove. 2008: 747). However, the sole resemblance of the argument is being used today with the one used by the Nazis should be alarming already. In addition, this argument creates a presupposition that only people who have done something wrong and, therefore, have things to hide are the once who care about privacy, which is wrong per se.
However, even people who have not done anything wrong there are significant dangers of pervasive surveillance of which people should become aware. First of all, collected data is stored and if it is not considered relevant today, does not mean that it will not be considered relevant later. Approved extensive data seizure can later provide the probable
56 cause for a particular search in the future. Second of all, the personal information of every one of us may become relevant without factual connections to terrorism, but simply because the intelligence agency of a particular country may find it important to inspect
(Cole, 2014).
As a Russian writer Aleksandr Solzhenitsyn: “Everyone is guilty of something or has something to conceal; all one has to do is to look hard enough to find what it was”
(Solove.2008: 750). This implies the idea that, first of all, when looking thoroughly, every person can find some piece of sensitive or intimate information he would not want to be exposed to the public. And second of all, if the government had access to all the correspondence, conversations and other methods of communication, it would easily be able to find information suggesting participation in unlawful or immoral activity, which later can be used to blackmail or discredit the person (Solove, 2006: 495). An excellent example of this can be found in the case when the FBI was extensively wiretapping
Martin Luther King, Jr. trying to find assumed communist ties; such allegation was never found, however, FBI succeeded in finding information about his extramarital affairs, which he was discredited about afterwards (Solove, 2006: 495)
Furthermore, privacy experts claim that “the problem is in the very question itself” since citizens do not have to justify their innocence. The presumption of innocence is applicable here as no one can be considered guilty until proven as such. In the ‘surveillance society’ or ‘safety state’, however, all the citizens are seemingly assumed to be guilty until results of surveillance prove otherwise (Lyon, 2009: 26). In the given argument it can be understood that no one should have to prove that he or she has nothing to hide because as
57 private citizens people should have the right to choose to what extent they want their personal information to be disclosed.
Moreover, as it has been discussed in the case studies, mass surveillance’s effectiveness in counterterrorism, which is used as one of the major justifications for the invasions of privacy with surveillance, is highly questionable. Likewise, the legal protection of such programs lacks precision, which makes it very easy to spy on everyone instead of particular individual needed for investigations. Targeted surveillance is essential for the welfare and security of the countries. However, governments abuse their powers in identifying the specific reasons essential for a person to become a target of surveillance.
Thus, people live in the environment where the personal information of every single individual may be collected without specific connections to terrorism or crime, and solely because the intelligence agency of a particular country may find it important to be intercepted. Thus, surveillance by the governments can be justified only in the cases where the reasons for such surveillance are legitimate and specifically indicated in the legislation of a given country providing citizens a comprehensive indication of the circumstances, in which their privacy can be intruded.
58
Appendix
Dimensions A. Traditional Surveillance B. The New Surveillance Senses unaided senses extends senses Visibility (of the actual visible less visible or invisible collection, who does it, where, on whose behalf) Consent lower proportion involuntary higher proportion involuntary
Cost (per unit of data) expensive inexpensive Location of data collectors / on scene remote analyzers Ethos harder (more coercive) softer (less coercive) Integration data collection as separate data collection folded into routine activity activity Data collector human, animal machine (wholly or partly automated) Data resides with the collector, stays with 3rd parties, often migrates local Timing single point or intermitted Continuous (omnipresent) Time period present past, present, future Data availability frequent time lags real time availability Availability of technology disproportionately available more democratized, some forms to elites widely available Object of data collection individual individual, categories of interest Comprehensiveness single measure multiple measures Context contextual acontextual Depth less intensive more intensive Breadth less extensive more extensive Ratio of self to surveillant higher (what the surveillant lower (surveillant knows things the knowledge knows, the subject probably subject doesn’t knows as well) Identifiability of object of emphasis on known emphasis also on anonymous surveillance individuals individuals, masses Emphasis on individuals individual, networks systems Realism direct representation direct and simulation Form single media multiple media Who collects data specialists specialists, role dispersal, self- monitoring Data analysis more difficult to organize, easier to organize, store, retrieve, store, retrieve, analyze analyze Data merging discrete non-combinable easy to combine visul, auditory, text, data (whether because of numerical data different format or location) Data communication more difficult to send, easier to send, receive receive Table 1. Marx, Gary T., What’s New About the “New Surveillance”? 2002:29
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