Surveillance and Democracy chilling tales from around the world INCLO INTERNATIONAL NETWORK OF CIVIL LIBERTIES ORGANIZATIONS SURVEILLANCE AND DEMOCRACY: CHILLING TALES FROM AROUND THE WORLD 1 Surveillance and Democracy chilling tales from around the world Cover photo: A security camera is mounted on the side of a building overlooking an intersection in midtown Manhattan, on 31 July 2013 in New York. Photo: Mark Lennihan/AP ABOUT INCLO The International Network of Civil Liberties Organizations (INCLO) is a group of independent, national human rights organisations working to promote fundamental rights and freedoms by supporting and mutually reinforcing the work of the member organisations working in their respective countries, and by collaborating on a bilateral and multilateral basis. Each organisation is multi-issue, multi-constituency, domestic in focus, independent of government, and advocates on behalf of all persons in their respective countries through a mix of litigation, legislative campaigning, public education and grassroots advocacy. The members of INCLO that participated in this report are: the American Civil Liberties Union (ACLU), the Association for Civil Rights in Israel (ACRI), the International Human Rights Group Agora (Agora) in Russia, the Canadian Civil Liberties Association (CCLA), the Centro de Estudios Legales y Sociales (CELS) in Argentina, the Egyptian Initiative for Personal Rights (EIPR), the Human Rights Law Network (HRLN) in India, the Hungarian Civil Liberties Union (HCLU), the Irish Council for Civil Liberties (ICCL), the Kenya Human Rights Commission (KHRC), and the Legal Resources Centre (LRC) in South Africa. table of contents Acknowledgements Introduction PAGE 6 PAGE 7 SURVEILLANCE AND DEMOCRACY: CHILLING TALES FROM AROUND THE WORLD table of contents National cases: surveillance in ten countries PAGE 9 1 2 3 United States Israel Russia We’re watch-listing you Warning conversations: Vigilant state: PAGE 11 an intimidation approach the ‘Surveillance to activism? Database’ and other tools PAGE 19 PAGE 29 4 5 6 Canada Argentina India The Re (X) case and The AMIA case, the judiciary From the halls of Parliament to the invisible subjects and the intelligence services the cubicles of cybercafés: the of digital surveillance PAGE 51 Indian government is watching PAGE 41 PAGE 61 7 8 9 Hungary Ireland Kenya The cameras are on… Smoke and mirrors: Irish The case of Makaburi: and they know surveillance law and the illusion the role of surveillance who they’re seeing of accountability in extrajudicial killings PAGE 71 PAGE 79 PAGE 89 10 South Africa Conclusion and Spying for others: recommendations troubling cases of transnational surveillance PAGE 111 PAGE 99 6 INCLO ACKNOWLEDGeMENTS The report has been a collaborative effort on Ireland the part of ten organisations of INCLO. Stephen O’Hare, senior research and policy The primary chapter authors are: programme manager, ICCL United States Kenya Larry Siems, writer, and Brett Max Andrew Songa, programme manager, Kaufman, staff attorney in the ACLU’s Cen- Transformative Justice, KHRC ter for Democracy South Africa Israel Avani Singh, attorney, Constitutional Avner Pinchuk, senior attorney, ACRI Litigation Unit, and Michael Laws, researcher, Constitutional Litigation Unit, Russia LRC Damir Gainutdinov, attorney, and Pavel Chikov, executive director, Agora The primary editor of the report was Canada Larry Siems. Lucila Santos (programme Brenda McPhail, director, Privacy, coordinator, INCLO), Brett Max Kaufman Technology and Surveillance Project, CCLA (staff attorney in the ACLU’s Center for Democracy), and Steven Watt (senior staff Argentina attorney, ACLU Human Rights Program) Ignacio Bollier, project officer, Democratic also contributed edits. Security and State Violence Programme, Ximena Tordini, director of Communications, Jameel Jaffer (deputy legal director of and Paula Litvachky, director of the Justice the ACLU and director of the Center for and Security Area, CELS Democracy) reviewed and edited the final report. India Saikat Datta, independent journalist, and Mariana Migueles and Carolina Marcucci Eliza Relman, paralegal, ACLU, with the were in charge of the report’s design and support of the HRLN layout. Jazmin Tesone was the report’s photo editor. Hilary Burke copyedited the Hungary report. Fanny Hidvegi, director, Data Protection and Freedom of Information Programme, INCLO also thanks the Open Society and Rita Zagoni, programme officer, Data Foundations, the Ford Foundation and the Protection and Freedom of Information Oak Foundation for their generous support Programme, HCLU of its work in this area. SURVEILLANCE AND DEMOCRACY: CHILLING TALES FROM AROUND THE WORLD 7 introduction This report offers a ground-level view of some of the In Ireland, the office of the independent ombudsman ways surveillance, and digital electronic surveillance charged with overseeing the country’s national police in particular, is impacting on the lives of citizens and suspects it has become the target of national police residents in ten countries in Africa, the Americas, Asia, surveillance. Europe and the Middle East. In Kenya, a radical imam is gunned down on the street, The ten author organisations are members of the and investigations point to state-sanctioned death International Network of Civil Liberties Organizations squads operating on the basis of information gathered (INCLO), and their dispatches are rooted in their through transnational intelligence sharing. experiences as civil and human rights litigators and In South Africa, the head of an internationally renowned advocates in their respective countries. Their stories are environmental organisation is the subject of a request distinct, reflecting local and national political realities, for “specific security assessments” from a foreign but their concerns, like the surveillance technologies government to the South African government, and the themselves, are transnational, interconnected and, South African organisation Legal Resources Centre increasingly, shared. (LRC) learns that it has been subject to unlawful In the United States, a Marine Corps veteran tries surveillance by the United Kingdom’s Government to board a plane and learns he is on a secret no-fly Communications Headquarters (GCHQ). list, apparently based on innocuous private email Separately, these stories describe concrete instances communications. in which governments have used surveillance to violate In Israel, state security agents summon peaceful political civil and human rights. Together, they challenge the activists for ‘warning conversations’ that make clear notion that digital and more traditional surveillance their lives and communications are being monitored. operations are harmless intrusions and that these tools are being used in democratic countries with adequate In Russia, a respected human rights advocate learns restraint and oversight. after repeated detentions that he is listed in the “human This publication is by no means a comprehensive survey rights activists” section of the national surveillance of the digital and traditional surveillance programmes database. operating in these countries. Rather, INCLO member In Canada, a conscientious judge discovers that his organisations have focused on specific cases in their country’s intelligence services have been circumventing countries where abusive government surveillance has the law and the courts to spy on Canadian citizens. come to light, and where member organisations and other civil and human rights groups have sought to In Argentina, the investigation of its worst terrorist attack challenge or curtail these practices. While the nature included illegal surveillance and intelligence activities to and purpose of these operations differ significantly from cover up the truth, leaving the attack unsolved to this day. country to country, these organisations have faced – In India, a journalist on the brink of exposing and still face – a common set of obstacles in seeking to government surveillance of opposition politicians confront the abuses: most significantly, poorly defined becomes the target of surveillance himself. legal frameworks delimiting surveillance powers and safeguarding individual rights; lack of transparency in In Hungary, the residents of a multiethnic regard to laws and practices governing surveillance; neighbourhood in Budapest find themselves living under feeble or insufficient mechanisms for overseeing the gaze of cameras that can recognise their faces. intelligence agencies and their intelligence operations; 8 INCLO and limited avenues for pursuing accountability when limiting domestic surveillance in their own countries. intelligence services misuse surveillance tools. These countries have also collaborated with intelligence services in other countries to form surveillance coalitions These are not new challenges. Surveillance, a known as, ‘Nine Eyes,’ ‘14 Eyes,’ ‘Rampart A (or 33 cornerstone of oppressive states, has always posed a Eyes)’ and ‘41 Eyes,’ creating transnational networks particular test for open, democratic societies; almost to gather, store and share intelligence that not only by definition, clandestine intelligence gathering strains defy national laws but also challenge concepts of democratic structures and stretches fundamental national sovereignty and distort fundamental notions commitments to due process, transparency and citizen of government accountability to the citizenry and the oversight. But there is something new in the scope