tag:theconversation.com,2011:/uk/topics/nsa-leaks-5852/articlesNSA leaks – The Conversation2019-05-08T12:47:54Ztag:theconversation.com,2011:article/1165862019-05-08T12:47:54Z2019-05-08T12:47:54ZThe secret’s in: how technology is making public interest disclosures even harder<p>Defence Minister Gavin Williamson’s <a href="https://www.bbc.co.uk/news/uk-politics-48126974">recent departure from the Cabinet</a> was as spectacular as it was rancorous. Daily Telegraph political reporter, Steve Swinford, had published a piece revealing a split in the National Security Council over allowing the Chinese tech giant Huawei to <a href="https://www.ft.com/content/fca902a4-6657-11e9-a79d-04f350474d62">bid for work on the forthcoming 5G network</a>. That there had been a leak at the hyper-secretive NSC by one of the ten or so ministers that attended resulted in an urgent investigation. Within a day the prime minister and her cabinet secretary, Sir Mark Sedwill, called in Williamson and told him that there was “compelling evidence” of his leaking of material. It was the first time in 70 years that a cabinet minister had been sacked for leaking.</p>
<p>Despite Theresa May’s certainty over the sacking, the case reveals the difficulty of identifying leakers, and some tricky questions remain. That Williamson had talked to Swinford a few minutes after coming out of the NSC meeting is not in question. Williamson admitted early on that he spoke to Swinford after the meeting but vigorously denied that he or his staff were responsible for the leak. Williamson’s admission of a meeting may be strong circumstantial evidence of leaking, but it is not in itself “compelling”. Williamson says there was no discussion of Huawei with Swinford and they <a href="https://www.huffingtonpost.co.uk/entry/analysis-gavin-williamson-cabinet-sacking_uk_5cca0d8ee4b0e4d7572d2f99">talked for 11 minutes</a> about the Tory leadership, Brexit and other matters. </p>
<p>In my view, having studied leaks for many years, there has to be something more for the prime minister and her cabinet secretary to be so sure. What the defence secretary and the journalist said in the telephone call is only known to them – unless somebody in government captured that conversation. Pretty well all meta-data of UK citizens phone calls is available to GCHQ but that would have just revealed actuality of the call – not the contents. </p>
<p>Did some government agency have a recording that led to the “compelling” evidence? Or did Williamson do something suspicious like not use his own phone for the call? And who called who? It could be a simple hatchet job based on circumstantial evidence – we do not know. </p>
<p>On the face of it, the call itself does not meet the standards of proof required in either a civil or a criminal case. The PM’s refusal to involve the police in a leak inquiry would be all the more wise if the damning evidence came from an eavesdropping agency. You would not want that known. The police have said it is not a matter for them as it is not a breach of the Official Secrets Act. </p>
<p>The offical line that a leak from the NSC does not constitute a breach of the Official Secrets Act seems inconsistent when two Belfast journalists are on bail in Northern Ireland – <a href="https://www.bbc.co.uk/news/uk-northern-ireland-47423757">Trevor Birney and Barry McCaffrey</a> as a result of police investigating what they describe as a breach of the Officials Secrets Act. Birney and McCaffrey had published a police ombudsman’s document that identified the alleged culprits in the <a href="https://www.theguardian.com/uk-news/2018/aug/31/loughinisland-killings-journalists-arrested-over-stolen-documents">1994 Loughinisland massacre</a>.</p>
<h2>National security leaks</h2>
<p>Leaks have been a feature of journalism from its earliest incarnations but the <a href="https://www.telegraph.co.uk/news/obituaries/11016167/Chapman-Pincher-obituary.html">late Chapman Pincher</a> was reputed to be the first UK journalist to master the art of the “exclusive by leak” from politicians and officials. For much of the latter half of the 20th century, the Daily Express journalist’s <a href="https://books.google.co.uk/books?id=32xlXpcaBCIC&pg=PT154&lpg=PT154&dq=Colonel+L+G+%22Sammy%22+Lohan&source=bl&ots=6DUecrekwy&sig=ACfU3U2PV91seFoVybeIDEVatZr3BzkyuQ&hl=en&sa=X&ved=2ahUKEwjTmfSJ-YviAhWiqHEKHUrEBsIQ6AEwCnoECAgQAQ#v=onepage&q=Colonel%20L%20G%20%22Sammy%22%20Lohan&f=false">leak-based journalism</a> was famous and often controversial. So much so that he was the target of historian <a href="https://www.thetimes.co.uk/article/dangerous-to-know-by-chapman-pincher-hktfrhr9qb7">E.P. Thompson’s caustic observation</a> that Pincher was “the public urinal where ministers and officials queued up to leak to” – an insult in which Pincher took perverse pride. Pincher was the master of recruiting leakers – usually politicians or mandarins settling scores or fighting turf wars. He would ply them with claret at his favourite London restaurant, L'Ecu de France in Jermyn Street off Piccadilly.</p>
<p>A landmark Pincher investigation known as “<a href="https://warwick.ac.uk/fac/soc/pais/people/moran/classified/britainswatergate/">the D-Notice affair</a>” took place in 1967. He revealed that GCHQ was tapping international cables to intercept messages. Though he did not name the agency, it was the first time these Cold War operations were disclosed. There were two D-Notices at the time advising journalists not to disclose such information. Pincher and the secretary of the D-Notice committee, Colonel L G “Sammy” Lohan, had a boozy dinner where the story was discussed. Pincher said Lohan told him that the D-Notices did not cover the story but still advised him not to publish, which he then did. Then prime minister, Harold Wilson, <a href="https://www.theguardian.com/uk/1999/apr/13/1">was furious with Lohan</a>, Pincher and the Daily Express. And Lohan resigned.</p>
<p>Wilson may have been furious, but he was known to leak directly to journalists when it suited him. Power is an important ingredient in whether leakers in politics and national security pay a price for their indiscretion. The more lowly you are, the higher your risk of prosecution. No one was going to prosecute a prime minister for leaking even if it involved national security. In one case Wilson held many meetings with two BBC journalists, Barrie Penrose and Roger Courtiour, where he detailed how MI5 was out of control and had targeted him. </p>
<p>The hypocrisy of politicians feigning indignation at the leaks of others is always impressive.</p>
<p>Although May has not sought Scotland Yard’s assistance in the Williamson scandal, the police are regular participants in high-profile leak inquiries. As a reporter I – for most of my career – nurtured sources within law enforcement, intelligence and other public sector agencies and published many “in the public interest” stories from these sources. As part of the investigation team at The Observer, I attended a number of meetings with senior Metropolitan Police detectives investigating the leaks we had published – they would solemnly ask us who had given us the information to which we would respond “no comment”.</p>
<h2>Government embarrassment</h2>
<p>Embarrassment, although it has no legal standing, can be a big factor when it comes to the decision whether or whether not to prosecute leakers. One story I reported at the time where embarrassment played a major role was of the senior civil servant Clive Ponting. He <a href="https://www.bbc.co.uk/news/uk-politics-13430012">was prosecuted in 1985</a> for leaking documents relating to the controversial British torpedoing of the Argentinian cruiser, the General Belgrano, during the Falklands War with the loss of hundreds of lives. Ponting was prosecuted and – despite the judge’s summing up pointing the jury to convict – the jury refused to do so and it was clear they took the view he had acted in the public interest. Ponting’s acquittal was highly embarrassing to then prime minister Margaret Thatcher and her government.</p>
<p>As a result – and despite the removal of a public interest defence from the <a href="https://www.opendemocracy.net/en/opendemocracyuk/guardian-public-interest-official-secrets-and-scandal-of-british-power/">1989 Official Secrets Act</a> – officials became much more careful about prosecuting leakers. In the run up to Iraq War in 2003, Katherine Gun, a GCHQ linguist, <a href="http://news.bbc.co.uk/1/hi/uk/3485072.stm">leaked a top-secret memo</a> that had been sent from the US eavesdropping agency, the National Security Agency (NSA), to the UK’s GCHQ. The memo asked GCHQ to bug the United Nations offices of six “swing” nations whose delegates were to attend a UN Security Council meeting that was going to decide on whether to support the invasion of Iraq. The idea was get a steer on the positions of these swing states so they could be countered in the Bush-Blair war campaign.</p>
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<p>The memo was published by reporter Martin Bright in The Observer. Gun was charged with an offence under Section 1 of the Official Secrets Act 1989. But when the case came to court in February 2004 the prosecution declined to offer any evidence and the case was dropped. Gun is now, rather belatedly, seen as a hero. <a href="https://www.theguardian.com/film/2018/feb/18/keira-knightley-role-katharine-gun-gchq-official-secrets-film">Official Secrets</a>, a Hollywood film of the Gun case, recently premiered starring Kiera Knightley portraying Gun.</p>
<h2>Protecting sources</h2>
<p>On a few occasions the media have failed to protect their sources, which incites appropriate condemnation. In 1983, The Guardian controversially handed over a leaked document to the government that allowed the identification and prosecution of Foreign Office clerical officer Sarah Tisdall. She, like Gun, on a matter of personal principle had anonymously sent The Guardian photocopies that detailed when American cruise missile nuclear weapons would be arriving in Britain. The documents set out the political tactics Michael Heseltine, then secretary of state for defence, would use to present the matter in the House of Commons. She was sentenced to six months in prison.</p>
<p>In the United States, recent administrations have taken a tougher line on leaks and have dusted off the old <a href="http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=3&psid=3904">Espionage Act of 1917</a> for this purpose. In 2017, Reality Winner, a 25-year-old Air Force veteran and federal contractor, sent journalists a top-secret NSA intelligence report, which showed that the NSA had collected intelligence suggesting that Russian military intelligence had tried to gain access to electronic voting systems in US states in 2016.</p>
<p>Glenn Greenwald’s news site Intercept published a <a href="https://theintercept.com/2017/06/05/top-secret-nsa-report-details-russian-hacking-effort-days-before-2016-election/">partially redacted version of the report</a> on June 5, 2017. The US authorities apparently could tell by the Intercept’s published copy of the document that it had been printed out. They discovered only six people with clearance and access to the material had printed it out – and one was Winner. When she was indicted, The Intercept was accused of being careless. They denied this. </p>
<p>As part of a subsequent plea deal, Winner pleaded to <a href="https://freedom.press/news/reality-and-espionage-act/">one count of violating a provision of the Espionage Act</a> and received a total prison sentence of 63 months (five years and three months), plus three years of supervised release. Winner is the <a href="https://www.nytimes.com/2018/08/23/us/reality-winner-nsa-sentence.html">first person to be prosecuted</a> under the Espionage Act since Donald Trump took office. During the Obama administration, the Department of Justice <a href="https://freedom.press/news/obama-used-espionage-act-put-record-number-reporters-sources-jail-and-trump-could-be-even-worse/">prosecuted eight people</a> under the revived Espionage Act for sharing classified information with journalists.</p>
<h2>Dangers of surveillance technology</h2>
<p>The massive increase in the surveillance technology capability since 9/11 in many countries poses profound problems for journalism. Investigative journalist <a href="https://www.pressgazette.co.uk/bureau-of-investigative-journalism-editor-christopher-hird-to-step-down-after-18-months/">Christopher Hird</a> – until 2015, the editor of the Bureau for Investigative Journalism – told me the Edward Snowden revelations will have had a big impact on journalist and source practice. </p>
<blockquote>
<p>You have to work on the assumption that if the authorities decide to take an interest in you they will be able to discover nearly anything you are up to, who you are meeting, what research you are doing, who you are talking to and what your networks are. If they so choose it is relatively easy for them to do, and confirms the suspicion one has had for some time, particularly in the digital world – one has to understand it is easier for them to do this than in the past.</p>
</blockquote>
<p>The New York Times <a href="https://www.nytimes.com/by/scott-shane">investigative journalist Scott Shane</a> also made the point to me that contemporary electronic data from phones and other technology enables the tracking of journalists and their sources. He said in the past with FBI leak referrals the first thing they did was fill in a questionnaire as to how many people were cleared for the information: “And it would be giant numbers – say 200 or 5,000 – essentially too big and the FBI would shrug its shoulders,” he said, adding: “That’s changed.” He described the way American officials now hunt down leakers. They are not looking for primary evidence in the first instance, but evidence of knowledge and prior contact.</p>
<blockquote>
<p>It’s not that your sources in the national security world send you an email saying ‘Dear Scott, here are the secrets you were asking about’, it’s that they see your story in the newspaper, at NSA or CIA or whatever, they say ‘ah ha, Scott Shane’. They put ‘Scott Shane’ into their government email system and they say: ‘Ah ha, Scott Shane has exchanged emails with these seven people in our agency in the last five years. Two of them he has been in touch with recently. But first of all of those seven people, who of those know about this topic? Oh, two of them know about the topic.’</p>
</blockquote>
<p>Therefore tracking down sources is now much easier and Shane says many potential sources are deterred by leak prosecutions.</p>
<p>Investigative journalists now need to consider even their behavioural patterns. This is where you get a good story and it alters your normal pattern of behaviour which can tip off those who are interested that something is going on. Even turning your phone off for periods of time can be a clue that you are on a story.</p>
<p>The <a href="https://www.washingtonpost.com/lifestyle/style/chilling-cried-fox-news-when-one-of-its-reporters-was-targeted-in-a-leak-case-wheres-the-outrage-now/2017/08/10/2dd1207a-7d32-11e7-9d08-b79f191668ed_story.html">pursuit of Fox News reporter James Rosen</a> – who covered the US State Department – was illustrative of the changing approach of the US prosecution. The Justice Department used security badge access records to track his comings and goings from the State Department after he got some insider scoops. They traced the timing of his calls with a State Department security adviser suspected of sharing a classified report. They then obtained a search warrant for the reporter’s personal emails. Eventually they identified his source as <a href="https://theintercept.com/2015/02/18/destroyed-by-the-espionage-act/">Stephen Jin-Woo Kim</a>, a State Department contractor.</p>
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<span class="caption">Fox news reporter James Rosen with US Secretary of State Condoleezza Rice in 2006.</span>
<span class="attribution"><span class="source">US Department of State</span></span>
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<p>Shane observed that while the two men seem to have used the old counter-surveillance method of face-to-face meetings, the Justice Department used <a href="https://www.theguardian.com/commentisfree/2013/may/14/justice-department-ap-phone-records-whistleblowers">electronic records of phone calls</a> and <a href="https://www.theatlantic.com/politics/archive/2013/05/fox-news-reporter-james-rosen-may-face-criminal-charges-reporting-cia/315087/">State Department entry cards</a> to build circumstantial evidence of the two men leaving the building at the same time in the working day and for the same length of time to conclude that they must have been conducting an unauthorised meeting. </p>
<p>The case revealed another sinister development – the government’s characterisation of Rosen as a co-conspirator, rather than a journalist doing his job. Eventually, charges were dropped against him. Kim pleaded guilty to a felony count of disclosing classified information and received a 13-month prison sentence.</p>
<p>You might leave your phone at home when meeting a source which may be used as a clue by investigators, but there are other ways of tracking you – using you electronic travel cards or ATMs can reveal your movements. Increasingly, facial recognition is also becoming a factor. All these can place you near the suspected source at a key moment. </p>
<p>Swinburn, the Daily Telegraph reporter whose report led to Williamson’s sacking, has not revealed who his source was – and nor should he. But it is worth noting that British journalists still have no over-arching right to protect their sources under English law. </p>
<p>Intelligence agencies now have a powerful surveillance technology to track down confidential sources, and can do so much more easily than ever before and it deters sources and whistleblowers. The “chilling effect” of such surveillance technology means that government is less likely subject to effective scrutiny by the fourth estate. The massive expansion of the surveillance state needs to be reeled back in if the public interest is to be properly served.</p><img src="https://counter.theconversation.com/content/116586/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Lashmar is affiliated with the Labour Party, NUJ, AJE, UCU, City, University of London, Media Society</span></em></p>Politicians have been leaking secrets to journalists as long as newspapers have existed. But it’s getting more difficult thanks to surveillance technology.Paul Lashmar, Reader in Journalism, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/791592017-06-15T10:53:23Z2017-06-15T10:53:23ZFrom the Pentagon Papers to Trump: How the government gained the upper hand against leakers<figure><img src="https://images.theconversation.com/files/173438/original/file-20170612-10220-1ecstf0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/american-flag-through-water-drop-403441606?src=396UyPLCA9ixw97H7j6rTA-1-6">'Drop' via www.shutterstock.com</a></span></figcaption></figure><p>In October 1969, a national security official named Daniel Ellsberg began secretly photocopying 7,000 classified Vietnam War documents. He had become increasingly frustrated with the systematic deception of top U.S. leaders who sought to publicly escalate a war that, privately, they knew was unwinnable.</p>
<p>In March 1971 he leaked the documents – what would became known as <a href="http://www.nytimes.com/interactive/us/2011_PENTAGON_PAPERS.html?_r=1&">the Pentagon Papers</a> – to a New York Times reporter. The newspaper ended up publishing a series of articles that exposed tactical and policy missteps by three administrations on a range of subjects, from covert operations to confusion over troop deployments. </p>
<p>In the decades since, the Pentagon Papers helped shape <a href="https://www.cjr.org/the_feature/did_the_pentagon_papers_matter.php">legal and ethical standards</a> for journalistic truth-telling on matters of top secret government affairs in the United States. Openness, in the eyes of the public and the courts, would usually prevail over government secrecy. In this sense, the transparency that came from the papers’ release shifted power from politicians back to citizens and news organizations. </p>
<p>That balance of power is taking on a renewed significance today. In the wake of Reality Winner’s alleged <a href="https://www.justice.gov/opa/press-release/file/971331/download">recent national security leak</a>, <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/06/08/trump-rages-about-leakers-obama-quietly-prosecuted-them/?utm_term=.a87c942e9713">prosecution of members of the press over the past few years</a> as well as pointed anti-press and anti-leak rhetoric by the Trump administration, one must ask: Are we witnessing a swing back toward strengthened government control of information? </p>
<h2>Political lies exposed</h2>
<p>The Pentagon Papers helped Americans realize that government officials <a href="https://mckinneylaw.iu.edu/ilr/pdf/vol45p89.pdf">didn’t have qualms lying about policy</a>. Perhaps more importantly, it showed them that the news media could act as a key conduit between the country’s most powerful political elites and a public they meant to keep in the dark. </p>
<p>“They made people understand that presidents lie all the time, not just occasionally, but all the time. Not everything they say is a lie, but anything they say could be a lie,” Ellsberg <a href="https://www.biography.com/people/daniel-ellsberg-17176398">later said</a>. </p>
<p>The New York Times began publishing the Pentagon Papers in June 1971. Citing national security concerns, the Nixon administration sought to stop publication of the papers. The case went all the way to the U.S. Supreme Court, where, in a landmark <a href="http://caselaw.findlaw.com/us-supreme-court/403/713.html">6-3 ruling</a>, The New York Times and The Washington Post won the right to continue publishing information contained in the documents.</p>
<h2>An unspoken bargain</h2>
<p>From the Pentagon Papers until the Obama administration, there was “an unspoken bargain of mutual restraint” between the press and the government, <a href="http://harvardcrcl.org/wp-content/uploads/2011/09/CRCL_McCraw-Gikow_print-version.pdf">according to legal scholars David McCraw and Stephen Gikow</a>. The press would occasionally publish classified information, and the executive branches would treat those leaks as a normal part of politics. </p>
<p>Veteran investigative reporter Dana Priest <a href="https://www.cjr.org/the_feature/did_the_pentagon_papers_matter.php">described such a relationship</a> as giving reporters “a greater responsibility to be thoughtful about what it publishes and to give government the chance to make its case.” </p>
<p>But since 2009, the federal government has grown increasingly hostile toward leakers and news organizations that have published classified information. As The New York Times <a href="https://mobile.nytimes.com/2017/06/06/business/media/intercept-reality-winner-russia-trump-leak.html">noted in its coverage of Winner</a>, President Trump, “like his predecessor Barack Obama, has signaled a willingness to pursue and prosecute government leakers.”</p>
<p>During Obama’s tenure, <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/06/08/trump-rages-about-leakers-obama-quietly-prosecuted-them/?utm_term=.a87c942e9713">his administration prosecuted</a> more leaks than every prior administration combined. He also continued to pursue high-profile cases against reporters who published stories using classified information. James Risen, a veteran national security reporter at The New York Times and target of such a case, <a href="https://www.theatlantic.com/politics/archive/2015/02/freedom-of-the-press-obama-first-amendment-James-Risen/385699/">called the Obama administration</a> “the greatest enemy of press freedom in a generation.”</p>
<h2>Tensions mount</h2>
<p>So what happened? How did this “unspoken bargain” fall apart?</p>
<p>Technology has certainly created more tension between the government and media outlets. Government employees and contractors can electronically access and release information to websites like WikiLeaks, which, in turn, can instantly publicize tens of thousands of pages of classified records.</p>
<p>Mainstream news organizations <a href="http://www.niemanlab.org/2017/01/how-easy-is-it-to-securely-leak-information-to-some-of-americas-top-news-organizations-this-easy/?relatedstory">are also experimenting</a> with new ways for leakers to submit classified information. The Tow Center for Digital Journalism at the Columbia University Graduate School of Journalism <a href="http://towcenter.org/new-report-guide-to-securedrop/">created a guide</a> for news organizations using SecureDrop, described as an “in-house system for news organizations to securely communicate with anonymous sources and receive documents over the Internet.” ProPublica <a href="https://www.propublica.org/article/how-to-leak-to-propublica">offers information</a> on its website about how to leak “to hold people and institutions accountable.” </p>
<p>In a sense, this is part of a continuing battle between the seemingly incompatible traditions of a free press and a national security apparatus that benefits from secrecy. </p>
<p>Government transparency is a necessary ingredient for a democracy. To elect leaders, citizens at the local, state and federal level need to have as much access to accurate information about policy and policymakers as possible. On the other hand, when it comes to national security, complete transparency could mean compromising information that puts lives at risks.</p>
<p>However, according to University of Minnesota law professor Heidi Kitrosser, the threats that leaks pose to national security <a href="http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1242&context=faculty_articles">are often exaggerated</a> by a political system that benefits from a public that’s kept in the dark about its leaders’ actions. Kitrosser wrote that in one warrant filed during the Obama administration, a member of the press was labeled as “an alleged leaker’s criminal coconspirator.”</p>
<h2>A wary public</h2>
<p>Meanwhile, even though it’s become easier to leak information – and for news outlets to expose government corruption and misdeeds – the public has become increasingly wary about leaks. </p>
<p>A 2007 <a href="http://www.pewresearch.org/2007/04/05/news-leaks-remain-divisive-but-libby-case-has-little-impact/">Pew Research Center report</a> found nearly 60 percent of Americans felt the U.S. government criticized news stories about national security because it had something to hide. That same study showed 42 percent of Americans thought leaks harmed the public interest. By 2013, <a href="http://www.pewresearch.org/fact-tank/2013/12/17/snowden-leaks-seen-as-harming-the-public-interest/">55 percent</a> of Americans believed Edward Snowden’s leaks about National Security Agency surveillance programs did more harm than good. </p>
<p>Such a dramatic change in public opinion raises questions about whether the public today will even defend the media’s right to access and publish leaked information.</p>
<p>It certainly hasn’t helped that, during the first year of the Trump administration, the press has been attacked ad nauseam. The president routinely calls news organizations “fake news” and threatens <a href="http://www.pbs.org/newshour/rundown/trump-vows-crackdown-leaks-chastises-nato/">increased prosecution of leaks</a>. </p>
<p>The rhetoric comes at a time when the public has expressed a growing disdain for journalism. <a href="http://www.gallup.com/poll/195542/americans-trust-mass-media-sinks-new-low.aspx">A September 2016 Gallup poll</a> revealed Americans’ trust in the news media to “report the news fully, accurately and fairly” dropped to its lowest level since the group began asking the question in 1972. </p>
<h2>Leaking and the law</h2>
<p>Public opinion on this issue matters because there are flimsy legal protections for journalists and leakers. And if politicians realize they can go after journalists without facing a backlash at the voting booth, they could become emboldened.</p>
<p>Because of Winner’s leak, there are new questions about how much Russia interfered with the 2016 election. The Intercept, <a href="https://theintercept.com/2017/06/05/top-secret-nsa-report-details-russian-hacking-effort-days-before-2016-election/">which published the document</a>, called it “the most detailed U.S. government account of Russian interference in the election that has yet come to light.” </p>
<p>Nonetheless, Winner now faces 10 years in prison. There hasn’t been any legal action against the Intercept, perhaps because the government was able to track down Winner on its own. </p>
<p>Meanwhile, there’s no <a href="https://www.spj.org/shieldlaw-faq.asp">federal shield law</a> – also known as reporter’s privilege – for journalists. Such a law would give journalists the legal right to protect the identities of confidential sources. However, <a href="http://www.spj.org/rrr.asp?ref=58&t=FOIA">49 states and the District of Columbia</a> offer some variation on reporter’s privilege through either case law or statute. </p>
<p>In 2009, a federal shield law to protect journalists from testifying against their sources made its way onto the agenda. With bipartisan support and a Democratic Congress, <a href="https://freedom.press/news/how-obama-administration-laid-groundwork-trumps-coming-crackdown-press/">Obama said</a> he would refuse to sign the bill if it didn’t include a significant exemption for national security. The bill went nowhere. </p>
<p><a href="http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1001&context=faculty_scholarship">In 2008</a>, law professor RonNell Andersen Jones studied 761 news organizations and found that reporters or editors in 2006 received 3,062 subpoenas “seeking information or material relating to newsgathering” – a number that, Andersen argued, justified federal legislation to protect them. Without firm legal protections, journalists face a lengthy – and potentially expensive – fight to fend off the government. </p>
<p>As journalism observers and researchers like me study how leaks, prosecutions and anti-media rhetoric impact everything from media trust to the free flow of information, we may be entering a post-Pentagon Papers era that shifts the power back to political elites, who seem more emboldened to go after leakers.</p>
<p>That’s not good for the average citizen. Ellsberg knew it in 1969. We should pay more attention now, too.</p><img src="https://counter.theconversation.com/content/79159/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margot Susca does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>American citizens have long favored government openness over secrecy. But with heightened anti-leak and anti-press rhetoric, do some now want strengthened government control of information?Margot Susca, Professorial Lecturer, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/751242017-05-09T06:07:36Z2017-05-09T06:07:36ZWeaponised research: how to keep you and your sources safe in the age of surveillance<figure><img src="https://images.theconversation.com/files/166176/original/file-20170420-20071-1eohps3.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is someone watching while you work?</span> <span class="attribution"><a class="source" href="https://flic.kr/p/Jbi1yw">Jay Moff/flickr</a></span></figcaption></figure><p>Surveillance has become so ubiquitous that it appears likely that Russia was <a href="http://www.latimes.com/nation/la-na-pol-wiretaps-russia-20170410-htmlstory.html">caught in the act</a> conspiring to fix the 2016 United States presidential election, and <a href="https://www.theguardian.com/us-news/2017/may/08/sally-yates-trump-russia-michael-flynn-blackmail-compromised">at least one of his staffers</a> was basically overheard conspiring with them. </p>
<p>Politicians aren’t the only ones being watched. Edward Snowden’s 2013 <a href="https://www.theguardian.com/us-news/the-nsa-files">revelations</a> detailing the US National Security Agency’s widespread surveillance have made clear that, these days, everyone should be thinking about privacy and security. </p>
<p>That includes academics, some of whom are undertaking sensitive, even dangerous, research. How can we work safely and ethically in an era of internet spying and wiretapping? </p>
<h2>Weaponising your own research</h2>
<p>This question is particularly salient for scholars who work on peace and justice organising: <a href="https://www.wired.com/2015/07/hacking-team-breach-shows-global-spying-firm-run-amok/">recent leaks</a> confirm that the military (or the police) may not only be reading your published work – they could also be tracking your online activity, monitoring your whereabouts and even listening in on your conversations.</p>
<p>Exposed files from the IT security company the Hacking Team confirm that its software is widely used around the world to listen to ambient conversations held in a room with a cell phone, <a href="http://www.bbc.com/news/technology-33772261">even when it is off</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"751219353698402304"}"></div></p>
<p>That opens up the ethically distressing possibility that your research can be weaponised – used by armed actors do to harm.</p>
<p>Geographers are particularly vulnerable to this threat. In 2007, the American Anthropological Association <a href="http://aaanewsinfo.blogspot.com.co/2007/11/aaa-board-statement-on-hts.html">denounced</a> the US Army’s Human Terrain Systems, which embeds social scientists in military teams in Iraq and Afghanistan, as “an unacceptable application of anthropological expertise”. Since then, the US military’s attempts to know (and control) the so-called human terrain have shifted to geography. </p>
<p>Even the highly <a href="https://books.google.ca/books/about/Weaponizing_Anthropology.html?id=eVZEAQAAQBAJ">critiqued</a> term “human terrain” has been widely <a href="http://www.tandfonline.com/doi/abs/10.1080/02684527.2014.945348?journalCode=fint20">replaced</a> with the term “human geography”. </p>
<p>As a result, we see a fast-growing trend of geographers being offered military <a href="http://www.tandfonline.com/doi/abs/10.1080/00045608.2013.843436">funding</a> for research, often through front organisations such as the US Department of Defense’s <a href="http://ppel.arizona.edu/?p=225">Minerva</a> Research Initiative. </p>
<p>The army’s new favour for geographers was reinforced when the American Association of Geographers (AAG) for years refused to take action on a military-related scandal. Researchers led by Peter Herlihy at the University of Kansas who were doing participatory <a href="https://books.google.com.co/books/about/Weaponizing_Maps.html?id=IELJBgAAQBAJ&printsec=frontcover&source=kp_read_button&redir_esc=y">mapping with</a> indigenous groups in Oaxaca, Mexico, <a href="https://books.google.com.co/books/about/Geopiracy.html?id=gzvZaywCb4AC&redir_esc=y">failed to disclose</a> both their US military funding and the fact that they were thus sharing research findings with their donors.</p>
<p>That’s unethical anywhere, but it’s particularly problematic in Oaxaca: the US military likely shared that detailed GIS information about Zapoteco communities with the Mexican military, which has long <a href="https://www.youtube.com/watch?v=GIb3cJJdVYQ">repressed those indigenous communities</a>. </p>
<p>In early April 2017, the AAG finally agreed to form a study group to examine the issue of ties between their discipline and the US, UK and NATO armed forces. </p>
<h2>Research hack</h2>
<p>Even if you’re an academic who doesn’t accept military funding, your findings may already have been added to the military’s huge databases without you knowing it (the citation is <a href="http://www.counterpunch.org/2012/11/29/geography-counterinsurgent/">unlikely to come up</a> in a Google Scholar search). </p>
<p>Karen Morin of Bucknell University, for example, discovered that her <a href="https://books.google.com.co/books/about/Key_Concepts_in_Geography.html?id=JUZdBAAAQBAJ&printsec=frontcover&source=kp_read_button&redir_esc=y#v=onepage&q&f=false">chapter</a> on interpreting landscape had been cited in a Marines operational <a href="https://www.mca-marines.org/files/READING_THE_CULTURAL_LANDSCAPE_WHITE_PAPER.pdf">guide</a>. Its subject: reading the cultural landscape correctly can enable troops to immediately control a population upon arrival. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=427&fit=crop&dpr=1 600w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=427&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=427&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">You never know who’s listening in.</span>
<span class="attribution"><a class="source" href="https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=0ahUKEwjOvK68_7PTAhVMQBQKHfzCCsMQjRwIBw&url=http%3A%2F%2Fwww.eucom.mil%2Fmedia-library%2Farticle%2F19672%2Fspecial-operations-command-europe-conducts-intelligence-symposium&psig=AFQjCNGbMsvnmxsWLzj0mvRD66a6JKz4qQ&ust=1492810723861875">EUCOM</a></span>
</figcaption>
</figure>
<p>It is very hard to track down this sort of misappropriation of your work. But you can keep it in mind when publishing. Ask yourself: who might want this information, and could it in any way be used to do harm?</p>
<p>Academics should also be aware that unpublished research data can also be hacked. I found this out the hard way, when the email account of the <a href="https://peacepresence.org/">Fellowship of Reconciliation</a>, a group that I was doing research with and regularly emailing, was hacked by Colombian intelligence and their emails used to prosecute a human rights activist on trumped-up charges. </p>
<h2>Protect yourself (and your sources)</h2>
<p>These basic steps can prevent your data being similarly hacked and misused.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=438&fit=crop&dpr=1 600w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=438&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=438&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Two-step verification on Gmail.</span>
<span class="attribution"><span class="source">Screenshot/google.com</span></span>
</figcaption>
</figure>
<p>1) Add two-step verification to your email. <a href="https://www.google.com/landing/2step/">For Gmail</a>, simply select this option under preferences under security, and then when you log in from a new computer it will ask you to enter a code texted to your phone. You can also download a list of ten backup codes to use when you are away from cell coverage.</p>
<p>2) Encrypt your computer. Or, more realistically, <a href="http://lifehacker.com/a-beginners-guide-to-encryption-what-it-is-and-how-to-1508196946">encrypt</a> one folder on it, which is where you will store those backup codes and other secure information. Beware that encryption will slow older computers down. Also encrypt all data every time you do a backup, and set up two-step verification on backups. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=0ahUKEwi084nd_bPTAhUBNxQKHahzAlAQjRwIBw&url=https%3A%2F%2Fpixabay.com%2Fen%2Fphotos%2Fscreen%2F&psig=AFQjCNGOk2UkapeBopyBzuaXwSkz4lzsWA&ust=1492810218857695">Pixabay</a></span>
</figcaption>
</figure>
<p>3) Put away your phone. You can now record long interviews on most phones. But if you at all suspect that the content of that interview could be misused in any way, by anyone, and particularly by armed actors, use a small digital recorder instead. </p>
<p>4) Get away from your phone. Simply turning off your phone is not enough; hackers can still record ambient conversations. A safer bet is to keep the phone outside of the room. (Remember to also take along another timepiece if you usually depend on your phone for that.) </p>
<p>5) Destroy the evidence. When your write field notes by hand, snap a photo of them and save the images behind encryption, then destroy your hard paper copy. </p>
<p>Do I sound paranoid? Most researchers, after all, are hardly embarking on James Bond-like missions. </p>
<p>Think what you like, but <a href="http://www.bbc.com/news/technology-33772261">recent revelations</a> have shown that governments around the world have purchased software for listening to conversations in the room through your smart phone.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"852974864461963265"}"></div></p>
<p>The community organisers, political activists, rogue scientists, indigenous rights defenders and environmentalists we routinely talk to as part of our research can become targets of government retaliation.</p>
<p>Given the high levels of surveillance and the growing weaponisation of research, caution is warranted. What it means to do <a href="http://www.tandfonline.com/doi/abs/10.1080/24694452.2016.1145511?journalCode=raag21">ethical research has changed</a>, and that should be reflected in both our own research methods and our methods classes.</p>
<p>
<section class="inline-content">
<img src="https://images.theconversation.com/files/265344/original/file-20190322-36244-jav5vf.png?w=128&h=128">
<div>
<header></header>
<p><a href="http://www.aag.org">Sara Koopman is a member of the American Association of Geographers</a></p>
<footer>The association is a funding partner of The Conversation US.</footer>
</div>
</section>
</p><img src="https://counter.theconversation.com/content/75124/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sara Koopman is a member of the American Association of Geographers.</span></em></p>Yes, Big Brother is almost definitely watching. Here, five tips for researchers on keeping you and your sources safe.Sara Koopman, Research Associate, Tampere Peace Research Institute, Tampere UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716072017-01-20T11:00:16Z2017-01-20T11:00:16ZIs part of Chelsea Manning’s legacy increased surveillance?<figure><img src="https://images.theconversation.com/files/153551/original/image-20170120-5260-o65qmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/big-brother-watching-giant-hand-magnifying-345947360">Via shutterstock.com</a></span></figcaption></figure><p>The military’s most prolific <a href="https://www.thenation.com/article/long-list-what-we-know-thanks-private-manning/">leaker of digital documents</a> has ushered in an age of even more increased surveillance over government workers. The legacy of Chelsea Manning’s actions is under discussion in the wake of the announcement that the former Army private will be released from military prison in May. In one of his last official acts, President Obama <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">commuted her sentence</a> for violations of the Espionage Act and copying and disseminating classified information. The commutation reduced her sentence from 35 years to the seven years she has already served, plus <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">four additional months needed to effect her release</a>.</p>
<p>In 2010, Manning, then presenting as male and going by the first name Bradley, was an intelligence analyst serving in Iraq. <a href="http://www.npr.org/sections/thetwo-way/2014/06/15/322252062/chelsea-manning-says-she-leaked-classified-info-out-love-for-country">Disillusioned by callous behavior and indiscriminate killing</a> of people in Afghanistan and Iraq by American soldiers, Manning copied and digitally released a <a href="https://www.theguardian.com/world/2013/jul/30/bradley-manning-wikileaks-revelations">massive trove of classified information</a>. The data included 250,000 cables from American diplomats stationed around the world, 470,000 Iraq and Afghanistan battlefield reports and logs of military incident reports, assessment files of detainees held at Guantanamo Bay and war zone videos of airstrikes in Afghanistan and Iraq war in which civilians were killed.</p>
<p>Government officials immediately expressed <a href="http://www.pbs.org/wgbh/frontline/article/just-how-damaging-were-mannings-wikileaks/">concerns about damage to national security, international relations and military personnel</a> because of the information contained in the material. There appears to have been <a href="http://www.huffingtonpost.com/2011/01/19/us-official-wikileaks-rev_n_810778.html">relatively little lasting damage</a> to American diplomacy. The military revelations were more damaging, with documents discussing <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">prisoner torture</a> and an <a href="http://www.spiegel.de/international/world/the-truth-about-task-force-373-war-logs-cast-light-on-dirty-side-of-afghanistan-conflict-a-708559.html">assassination squad made up of American special forces operators</a>. Those enraged American citizens and the international community alike, and may have hardened the resolve of adversaries.</p>
<p>But the most lasting effect will likely be a powerful new fear of so-called “insider threats” – leaks by people like Manning, working for the U.S. and having passed security clearance background checks. In the wake of Manning’s actions, the military and intelligence communities have been ramping up digital surveillance of their own personnel to unprecedented levels, in hopes of detecting leakers before they let their information loose on the world.</p>
<h2>Embarrassing to diplomats</h2>
<p>The initial official response was that the release of <a href="http://www.slate.com/articles/news_and_politics/explainer/2010/11/whats_a_diplomatic_cable.html">State Department cables</a> – internal communications between officials with candid assessments of international situations and even individual leaders’ personalities – would be so <a href="http://www.telegraph.co.uk/news/worldnews/northamerica/usa/8169040/WikiLeaks-Hillary-Clinton-states-WikiLeaks-release-is-an-attack.html">debilitating to foreign relations</a> that repair would take decades.</p>
<p>In reality, the cables were <a href="https://thecaucus.blogs.nytimes.com/2010/11/30/gates-on-leaks-wiki-and-otherwise/">more embarrassing than destructive</a>. A political uproar met the news that the U.S. and its purported ally Pakistan were working at cross-purposes: American forces were trying to fight against the Taliban and al-Qaida, while Pakistan was trying to offer them protection and even weapons. But overall, it didn’t significantly increase the existing tensions in <a href="https://foreignpolicy.com/2015/01/26/the-art-of-u-s-pakistan-relations/">American-Pakistani relations</a>. Other foreign officials may have <a href="https://www.theguardian.com/world/2013/aug/05/bradley-manning-leak-foreign-policy-sentencing">become more wary about sharing information</a> with Americans, but over time, new people come into key posts, the leak is forgotten and business continues as it has always done.</p>
<p>Foreign leaders about whom U.S. officials had made blunt and disparaging comments in the cables did suffer. For example, the cables revealed a <a href="https://www.theguardian.com/world/2010/dec/03/wikileaks-yemen-us-attack-al-qaida">secret agreement</a> in which the U.S. conducted drone strikes in Yemen while that country’s President Ali Abdullah Saleh publicly took the blame. Two years later, in 2012, a <a href="http://www.bbc.com/news/world-middle-east-17177720">popular revolution ousted him</a>. A similar fate befell the Tunisian President Zine El Abidine Ben Ali, whose lavish lifestyle – and lack of American support – was <a href="http://www.mcclatchydc.com/news/special-reports/article24607888.html">discussed in the cables</a>.</p>
<h2>Revealing military misdeeds</h2>
<p>More damaging to the U.S. was what was revealed in the battlefield reports Manning released, and called evidence of American soldiers’ “<a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/9900525/WikiLeaks-soldier-Bradley-Manning-I-wanted-to-expose-bloodlust-of-US-forces-in-Middle-East.html">bloodlust</a>.” For instance, Manning’s leaks disclosed the activities of an American assassination squad in Afghanistan. Called <a href="https://www.theguardian.com/world/2010/jul/25/task-force-373-secret-afghanistan-taliban">Task Force 373</a>, the unit comprised specially trained U.S. personnel from elite forces such as the Navy SEALs and the Army’s Delta Force. Its goal was to assassinate a range of targets including drug barons, drug makers and al-Qaida and Taliban figures. </p>
<p>The documents also showed U.S. military personnel shooting innocent civilians on the ground and from the air – <a href="https://www.theguardian.com/world/2010/apr/05/wikileaks-us-army-iraq-attack">among them a Reuters journalist</a>. They showed that American <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">authorities ignored extreme torture</a> inflicted on Iraqi prisoners, including sexual abuse and physical mistreatment, such as hanging detainees upside-down. Allegations of <a href="https://www.theguardian.com/world/2010/dec/02/foreign-contractors-hired-dancing-boys">child trafficking by U.S. military contractors</a> also came to light.</p>
<h2>Surveilling the potential messenger</h2>
<p>Manning is being hailed as a <a href="http://www.truth-out.org/news/item/17935-noam-chomsky-on-grittv-bradley-manning-should-be-regarded-as-a-hero">hero</a> and as a <a href="http://thehill.com/homenews/administration/314858-pence-mistake-to-commute-sentence-for-traitor-chelsea-manning">traitor</a>. There are arguments for both. The public has a right to know about official misdeeds carried out by the government and military. But those kinds of revelations can jeopardize our defense strategy and hurt our standing in the world community.</p>
<p>Manning’s leaks <a href="https://www.ncsc.gov/nittf/">raised alarms across the government</a> because they came from a trusted insider. In 2011, Obama issued <a href="https://www.whitehouse.gov/the-press-office/2011/10/07/executive-order-13587-structural-reforms-improve-security-classified-net">Executive Order 13587</a>, directing Executive Branch departments and agencies to <a href="https://www.ncsc.gov/nittf/docs/National_Insider_Threat_Policy.pdf">be on guard against insider threats</a>.</p>
<p>National Security Agency contractor <a href="https://www.theguardian.com/us-news/the-nsa-files">Edward Snowden’s leaks of NSA documents</a> in 2013 only heightened official fears. As a result, government organizations have <a href="https://www.theguardian.com/us-news/2016/mar/18/chelsea-manning-insider-threat-surveillance-government-employees">increased surveillance</a> and are <a href="http://www.pbs.org/newshour/rundown/us-intelligence-officials-monitor-federal-employees-security-clearances/">closely monitoring their employees’ online activity</a>. </p>
<p>With software and techniques also <a href="http://enterprise-encryption.vormetric.com/rs/vormetric/images/CW_GlobalReport_2015_Insider_threat_Vormetric_Single_Pages_010915.pdf">in use in the private sector</a>, government agencies <a href="http://www.dss.mil/documents/isp/ISL2016-02.pdf">and contractors</a> use computer systems that <a href="https://theconversation.com/panama-papers-revelation-we-must-rethink-data-security-systems-57464">monitor when employees are accessing</a>, copying, deleting and transferring files. </p>
<p>Computers’ <a href="http://www.cio.com/article/2400017/security0/how-to-prevent-thumb-drive-security-disasters.html">external media ports are also being watched</a>, to detect an employee connecting a <a href="https://www.us-cert.gov/ncas/tips/ST08-001">USB thumb drive</a> that could be used to smuggle documents out of a secure system. Workers’ keystrokes and other actions on their computers <a href="http://www.fedtechmagazine.com/article/2016/10/nsa-and-opm-turn-behavioral-analytics-combat-insider-threats">are being analyzed</a> <a href="http://www.cio.com/article/2687816/government-use-of-it/virtualization-cloud-complicate-insider-threats-for-federal-cios.html">in real time</a> to detect unauthorized activity, such as accessing restricted files or even connecting to file-sharing or social media sites.</p>
<p>Agencies and private companies with government contracts will also have to <a href="http://blogs.wsj.com/riskandcompliance/2016/09/01/the-morning-risk-report-defense-contractors-face-new-insider-threat-rule/">keep their employees’ after-work lives under greater surveillance</a>, looking for behavior or situations that might compromise government security. The effectiveness of these efforts is <a href="http://www.mcclatchydc.com/news/special-reports/insider-threats/article24750850.html">not yet clear</a>.</p>
<h2>Leniency or mercy?</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chelsea Manning.</span>
<span class="attribution"><span class="source">U.S. Army</span></span>
</figcaption>
</figure>
<p>Obama characterized Manning’s release as a <a href="http://www.npr.org/sections/thetwo-way/2017/01/17/510307055/president-obama-commutes-chelsea-mannings-prison-sentence">humanitarian gesture</a> because of her personal circumstances. The day after she was sentenced, Manning revealed that <a href="http://www.nbcnews.com/feature/nbc-out/chelsea-manning-potent-symbol-transgender-americans-n709126">she is transgender and identifies as a woman</a>; nevertheless, she was held in a <a href="https://www.nytimes.com/2017/01/13/us/chelsea-manning-sentence-obama.html">men’s military prison</a>. </p>
<p>The military was under increasing public and even <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">international pressure</a> to allow her to <a href="https://www.aclu.org/blog/speak-freely/government-chelsea-manning-were-denying-your-treatment-your-own-good">make a physical and biological transition</a> – a procedure neither the military nor any U.S. prison has <a href="http://www.cnn.com/2016/09/13/politics/chelsea-manning-gender-reassignment-surgery/">ever dealt with or paid for before</a>. (She is likely to <a href="http://www.usatoday.com/story/news/politics/2017/01/18/chelsea-manning-lose-transgender-benefits-dishonorable-discharge/96742180/">lose her military medical coverage</a> upon her release from prison, leaving her medical care in question.)</p>
<p>Despite Obama’s perspective, Manning’s release could be viewed as an act of leniency, a signal that others might escape decades of prison time if they, too, were to violate their oaths of secrecy and reveal confidential public information. But fewer might get the chance to do so, because insiders are trusted less and being watched more.</p><img src="https://counter.theconversation.com/content/71607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sanjay Goel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Government agencies and contractors are now less trusting of their workers, and keeping a much closer eye on them, both on and off the job.Sanjay Goel, Professor of Information Technology Management, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/699592017-01-16T04:44:49Z2017-01-16T04:44:49ZWhat does Trump’s election mean for digital freedom of speech?<figure><img src="https://images.theconversation.com/files/152720/original/image-20170113-11803-9i24i1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/man-covering-his-mouth-hand-imprint-513537250">Via shutterstock.com</a></span></figcaption></figure><p>As the shock of Donald Trump’s election victory is giving way to analysis about <a href="https://theconversation.com/us/topics/2016-us-presidential-election-23653">how his presidency will affect Americans’ lives</a>, our digital freedom of speech deserves special consideration. The ability to express ourselves freely is a fundamental right guaranteed to us all.</p>
<p>There are three major elements that determine how free we are in our online expression: The press must be <a href="https://www.law.cornell.edu/wex/first_amendment">free to publish</a> anything newsworthy about public officials without fear of serious reprisals. Online communications must be able to reach broad audiences <a href="http://www.theverge.com/2017/1/13/14266168/tom-wheeler-final-speech-net-neutrality-defense">without discrimination by internet service providers</a>. And the government <a href="https://www.law.cornell.edu/wex/fourth_amendment">must not be able to spy indiscriminately</a> on ordinary law-abiding Americans.</p>
<p>Before and during the campaign, Trump made pronouncements that suggest deep and widespread implications for digital freedom of speech if those ideas end up guiding his administration. As a scholar of digital communication, I am concerned about what he and his administration will do once in office. Trump’s actions could result in weaker protections for our free press, less competition and higher prices for online consumers, certain forms of online censorship and a return to an intrusive online surveillance regime. The public must prepare to stand up to oppose these infringements on our rights.</p>
<h2>Attacking the press</h2>
<p>During his presidential bid, Donald Trump ran as much against the press as against his Republican primary opponents and Hillary Clinton. This was despite the fact that many press outlets were only doing what they usually do during campaigns: scrutinize both parties’ front-runners and nominees.</p>
<p>Most candidates simply grin and bear the ritual press grillings, but not Trump. He showed an <a href="http://nymag.com/scienceofus/2016/10/why-is-trumps-skin-so-much-thinner-than-clintons.html">unusually thin skin</a> for a presidential contender, directly attacking the press during raucous rallies and routinely <a href="http://www.usatoday.com/story/news/politics/onpolitics/2016/06/13/trump-washington-post-banned-list/85842316/">banning certain news outlets</a> from covering his campaign.</p>
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<figcaption><span class="caption">Donald Trump attacks the media in this CNN clip.</span></figcaption>
</figure>
<p>But he also went beyond even these extraordinary steps, suggesting that he would <a href="http://www.cbsnews.com/news/why-donald-trump-wants-to-change-libel-laws/">“open up” libel laws</a> to make it easier for public figures to sue news outlets: “[W]hen people write incorrectly about you and you can prove that they wrote incorrectly, we’re going to get them through the court system to change and we’re going to get them to pay damages,” said Trump.</p>
<p>This is, in fact, what <a href="http://www.rcfp.org/digital-journalists-legal-guide/libel">current libel law</a> already allows. Strikingly, Trump has combined his seeming ignorance of libel law (despite his many years in the public eye) with a sense that today’s existing restrictions on the press are too loose. This suggests that he may seek to enshrine in law or policy his particular animosity toward the press.</p>
<p>He also has been willing to attack any and all critics, including <a href="https://www.washingtonpost.com/politics/this-is-what-happens-when-donald-trump-attacks-a-private-citizen-on-twitter/2016/12/08/a1380ece-bd62-11e6-91ee-1adddfe36cbe_story.html">private citizens</a>. Combined, these elements raise questions about the degree, if any, to which Trump values freedom of the press, digital or otherwise. </p>
<p>His Cabinet appointments do not inspire confidence in his support of this principle, either. During his confirmation hearing, Trump’s nominee for attorney general, Sen. Jeff Sessions, <a href="http://www.politico.com/blogs/on-media/2017/01/sessions-not-sure-whether-he-would-prosecute-journalists-233431">dodged questions</a> about his willingness to prosecute journalists based on their reporting, including handling leaks from government employees. He has also <a href="http://www.rcfp.org/reporters-committee-releases-report-attorney-general-nominee-jeff-sessions">opposed a federal shield law</a> that would protect journalists against such prosecutions.</p>
<h2>Threatening an open internet</h2>
<p>Network neutrality was not a hot topic during this presidential election, but that may change during a Trump administration.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"532608358508167168"}"></div></p>
<p>During the <a href="https://www.whitehouse.gov/net-neutrality">debate over net neutrality</a> in 2014, <a href="https://twitter.com/realDonaldTrump/status/532608358508167168?ref_src=twsrc%5Etfw">Trump tweeted</a> that the policy was a “top down power grab” that would “target conservative media.” He appears to have conflated net neutrality’s nondiscrimination principle with the now-defunct <a href="http://www.museum.tv/eotv/fairnessdoct.htm">Fairness Doctrine</a>. That policy, discontinued in 1987, required broadcasters to devote equal time to opposing views about controversial public issues. It’s hard to know which is more worrying: his early antipathy toward net neutrality, or his objections despite not knowing what it actually means.</p>
<p>Whatever Trump himself understands, his appointments look like bad news for supporters of an open internet. President-elect Trump has <a href="http://www.reuters.com/article/us-usa-trump-fcc-idUSKBN13H02B">named Jeffrey Eisenach and Mark Jamison</a> to oversee the transition at the Federal Communications Commission, which oversees internet communications policy. Both are <a href="https://www.aei.org/scholar/jeffrey-eisenach/">staff members</a> at the conservative <a href="https://www.aei.org/scholar/mark-jamison-2/">American Enterprise Institute</a> and <a href="http://warrington.ufl.edu/centers/purc/docs/bio_MarkJamison.pdf">former lobbyists</a> for <a href="http://www.nytimes.com/2016/11/12/us/politics/trump-campaigned-against-lobbyists-now-theyre-on-his-transition-team.html">major telecommunications companies</a>. Both are also <a href="http://www.thedailybeast.com/articles/2016/11/29/donald-trump-s-transition-team-wants-to-end-net-neutrality.html">vocal opponents of net neutrality</a>. Also on his FCC transition team are Roslyn Layton, <a href="http://thehill.com/policy/technology/307924-trump-taps-another-net-neutrality-critic-for-fcc-transition">another staff member at AEI and vocal net neutrality opponent</a>, and <a href="http://fortune.com/2016/12/29/trump-fcc-morken-net-neutrality/">North Carolina telecom entrepreneur David Morken</a>. </p>
<p>Morken is not on record as opposing net neutrality, but so far its supporters seem outnumbered. Those signs suggest that a Trump administration could enable an internet where wealthy people and companies can afford to distribute their content everywhere quickly, while regular people and small businesses can’t attract an audience or deliver content efficiently.</p>
<h2>Perpetuating the surveillance state</h2>
<p>During the campaign, candidate Trump supported <a href="http://thehill.com/blogs/ballot-box/presidential-races/261673-trump-sides-with-rubio-over-cruz-in-nsa-surveillance">keeping or restoring the NSA’s secret surveillance programs</a>, which former agency contractor <a href="https://www.theguardian.com/us-news/the-nsa-files">Edward Snowden revealed in 2013</a>. Those programs, with a <a href="http://www.reuters.com/article/us-nsa-surveillance-idUSKCN0HO1YQ20140929">questionable legal basis</a>, collected <a href="https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order">internet and telephone communications</a> from all Americans, <a href="http://www.npr.org/sections/thetwo-way/2015/11/29/457779757/nsa-ends-sept-11th-era-surveillance-program">storing them in a massive government database</a>.</p>
<p>Although Congress <a href="https://www.nytimes.com/2015/05/14/us/house-votes-to-end-nsas-bulk-phone-data-collection.html?_r=0">voted across partisan lines to eliminate these programs</a> in 2015, Trump’s election may help revive them. He has named Rep. Mike Pompeo (R-Kansas), a supporter of the NSA surveillance programs Congress eliminated, as the <a href="http://www.sfchronicle.com/nation/article/Trump-s-CIA-pick-would-reinstate-US-collection-10628986.php">next CIA director</a>. </p>
<p>The programs are <a href="http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/">unpopular with Americans</a>: It is perhaps no coincidence that interest in technologies that would make government surveillance more difficult, such as <a href="http://www.theverge.com/2016/11/11/13603000/protonmail-encrypted-email-service-donald-trump-nsa-surveillance">encrypted email</a> and <a href="http://fortune.com/2016/12/02/donald-trump-signal-app/">encrypted instant messaging apps</a>, has surged since Trump’s election.</p>
<h2>How successful could Trump be?</h2>
<p>We are not necessarily doomed to lose our digital freedom of speech. As with any public policy question, the answer is more complicated. Should Trump begin to wage on a full-fledged assault on digital expression, the degree to which he can succeed may be limited.</p>
<p>One factor is his ability to navigate the extremely complex and time-consuming obstacle course that is the American system of government. With its separation of powers, bicameral legislature, multiple layers of jurisdiction and <a href="https://www.jstor.org/stable/194257?seq=1#page_scan_tab_contents">endless veto points</a>, the American system strongly favors inertia over just about any course of action.</p>
<p>But a highly motivated president with an authoritarian streak could potentially cut through this inertia by, for example, embracing a <a href="http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12368&context=journal_articles">strong unitary executive</a> view of the presidency.</p>
<p>When the public gets involved, even seemingly entrenched plans can be derailed, or even reversed. For example, a mass of public involvement (with a little assistance from <a href="https://www.cnet.com/news/john-olivers-net-neutrality-rallying-cry-swamps-fcc/">comedian John Oliver</a>) <a href="https://www.bloomberg.com/politics/articles/2015-02-26/how-john-oliver-transformed-the-net-neutrality-debate-once-and-for-all">transformed the initial net neutrality debate</a>.</p>
<p>This power the public holds – if it chooses to wield it – can be used in two ways: First, it can resist unwelcome changes, by reinforcing the political tendency toward inertia and the status quo. And second, it can drive policymakers to better serve the public who employ them. It’s unclear at present which tactic protecting our digital freedom of speech will require – or whether we’ll need both. In American politics, elections may have consequences, but they’re never the end of the story.</p><img src="https://counter.theconversation.com/content/69959/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luis Hestres does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The public must prepare to stand up for a free press, and against online censorship and surveillance.Luis Hestres, Assistant Professor of Digital Communication, The University of Texas at San AntonioLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/427712015-06-03T21:28:13Z2015-06-03T21:28:13ZUS government clips NSA wings, but snooping is a global effort<figure><img src="https://images.theconversation.com/files/83878/original/image-20150603-2963-v88oy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The NSA has eyes and ears around the globe.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/cyzen/9695981482/in/photolist-fLNruw-fLNrb7-fLvZLH-fLvVFe-fLNsR7-fLNC7Q-fLvRGi-fLw4PP-fLvUWc-fLvdDX-fLNwvj-fLNvNC-fLNx7A-fLNBwj-fLvFiz-fLvWWc-fLvVor-fLNAUm-fLNvbq-fLvEUH-fLND6q-fLNw9y-fLvMEp-fLNsaq-fLvGX2-fLNCNb-fLNyEs-fLw228-fLNrQ9-fLvSpk-fLvJmM-fLNssd-fLvR4p-fLNA15-fLvZ66-fLNzgd-fLvNr8-fLNBef-fLNAj5-fLvUDg-fLX2Zx-fLNbWL-fLwfHa-fLMVXS-fLvtPv-fLN25N-fLvkGB-fLMR8s-fLN4nW-fLNjmQ">Mike Herbst</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Agencies such as the NSA and the FBI will no longer be permitted to arbitrarily access the logs of phone calls, emails and internet use. Congress has passed the <a href="http://www.washingtontimes.com/news/2015/jun/2/nsa-phone-program-nixed-senate-oks-usa-freedom-act/">USA Freedom Act of 2015</a>, which limits the power of government intelligence organisations to access the communications records of US citizens.</p>
<p>Rather than intercepting data and retaining it in case it’s needed for an investigation, intelligence agencies will now have to access the data from the private companies that collect it. And they will only be able to do so in specific and justified cases. </p>
<p>This is being hailed as an important amendment to intelligence practices, as well as <a href="http://www.theguardian.com/us-news/2015/jun/02/congress-surveillance-reform-edward-snowden">vindication</a> for Edward Snowden, who revealed the extent of the surveillance that was going on after the September 11 attacks in 2001.</p>
<p>Many argue that there is still a long way to go. The <a href="https://www.eff.org/">Electronic Frontier Foundation</a> actually withdrew its support for the Freedom Act in an effort to push politicians to go further with it. And ironically, the transition period for the implementation of the bill means the NSA will actually restart its data gathering program, having <a href="https://theconversation.com/patriot-act-meltdown-surveillance-politics-and-rand-paul-42670">suspended it</a> in May due to legal uncertainty. Once the Act comes into force, the NSA will have six months to adapt to the new requirements.</p>
<p>And while the changes may come as welcome news to US citizens, not a great deal has actually changed for everyone else in the world.</p>
<p>The USA Freedom Act only applies to US citizens, which means the NSA is still free to gather meta data on citizens of other nations. Meanwhile, other governments are moving to hand greater powers to their intelligence services.</p>
<h2>Watching you around the world</h2>
<p>In the UK, for example, GCHQ operates a similar program to the NSA. In early 2015, a consortium of civil rights organisations took GCHQ before the Investigatory Powers Tribunal – a British court set up to hear complaints against the security services. The consortium argued that GCHQ’s mass surveillance program – as well sharing the results of that program with the NSA – was an abuse of human rights law. The tribunal <a href="http://www.theguardian.com/uk-news/2014/dec/05/uk-mass-surveillance-laws-human-rights-tribunal-gchq">found in favour of GCHQ</a> but the case is expected to proceed to the European Court of Human Rights in Strasbourg later this year.</p>
<p>Left as it is, GCHQ can help to alleviate problems that the NSA will face in collecting data on US citizens. As part of the <a href="http://www.bbc.co.uk/news/world-europe-24715168">“Five Eyes”</a> intelligence sharing arrangement that includes the US, UK, Australia, New Zealand and Canada, GCHQ is perfectly positioned to collect and pass on communications data on US citizens that the NSA may be prevented from collecting itself.</p>
<p>What’s more, in the wake of the British election, the UK government is seeking once again to implement a law known as the <a href="https://theconversation.com/return-of-the-snoopers-charter-reflects-a-worldwide-move-towards-greater-surveillance-42504">Snooper’s Charter</a>. This is essentially a data retention bill that would require telecommunications companies and internet service providers to hold onto the meta data (but not content) from their customers’ emails, phone calls, texts and internet browsing for 12 months.</p>
<p>Meanwhile, in the weeks following the <a href="https://theconversation.com/us/topics/charlie-hebdo-attack">Charlie Hebdo</a> attacks in Paris, France moved to introduce significantly strengthened data retention laws. Echoing the US response to the 9/11 terrorist attacks, French Prime Minister Manuel Valls suggested that an “<a href="http://ambafrance-us.org/spip.php?article6435">extraordinary situation calls for extraordinary measures</a>”. This has implications for European negotiations over data protection laws which have been implemented to shield EU citizens from the NSA surveillance program.</p>
<p>Questions about the balance between privacy and security are ongoing and to some extent, they define the times. With increasing intensity, organisations have been racing to take advantage of personal data trail that we now generate online. There can be little doubt that this provides opportunities for use in law enforcement and intelligence.</p>
<p>It’s worth remembering, though, that mass surveillance is not carried out by the NSA or the FBI or even GCHQ. It’s carried out by private corporations such as Google and Facebook. Adequate oversight of the way intelligence agencies access and use that data is extremely important but we have remarkably little oversight of the way private companies deal with our data. And in many cases, they operate with very little transparency themselves. </p>
<p>In February 2015, the <a href="http://www.theguardian.com/technology/2015/may/15/facebook-must-stop-tracking-users-non-users-legal-action">Belgian Privacy Commission</a> found that Facebook is acting in violation of European law. A few months later, Apple CEO <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/news/apple-boss-tim-cook-slams-google-and-facebook-for-selling-their-users-data-10295158.html">Tim Cook</a> launched an attack against the collection and monetisation of personal data saying that Silicon Valley businesses are “lulling their customers into complacency about their personal information”.</p>
<p>And as for telcos and ISPs, those that don’t already retain our data aren’t acting out of ethical concerns – they don’t keep the information because the expense of storage currently outweighs the commercial value of the data.</p>
<p>So while US citizens have reasons to celebrate about the USA Freedom Act, they should remember that the NSA has allies around the world who continue to collect data on both their own citizens – and those in the US.</p><img src="https://counter.theconversation.com/content/42771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madeline Carr does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>US intelligence agencies can no longer collect and store the telecommunications data of US citizens but other countries are strengthening their efforts.Madeline Carr, Senior Lecturer in International Politics and the Cyber Dimension , Aberystwyth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/396492015-04-20T05:14:04Z2015-04-20T05:14:04Z‘Safe harbour’ court ruling could prevent US firms from reaching European users<p>Is there any point in worrying about privacy, when in this hyper-connected age we spend so much of our time creating and sharing data with others? Either shared through social media or given to advertisers in exchange for the free services we use, it almost seems absurd to argue for strong data protection and privacy laws while we give so much away.</p>
<p>But notions of privacy and personal data protection are still crucial in a sharing environment. In Europe the rights to privacy (defined in <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">Article 8 of the European Convention of Human Rights</a> and <a href="http://www.europarl.europa.eu/charter/pdf/text_en.pdf">Article 7 of the European Charter of Fundamental Rights</a>) and to data protection (in <a href="http://www.europarl.europa.eu/charter/pdf/text_en.pdf">Article 8 of the Charter</a>) clearly apply online, offering protection against systematic surveillance of communications by public and private entities. However while Europeans particularly care about privacy, ultimately there is no global agreement. The giants of the internet, for example, are generally US companies operating within a legal system without a harmonised and comprehensive data protection regime.</p>
<p>The conflicting nature of European and US privacy legislation has been highlighted in a <a href="http://www.bailii.org/ie/cases/IEHC/2014/H310.html">court case</a> between one of these giant firms, Facebook, and Austrian privacy activist <a href="http://europe-v-facebook.org/EN/en.html">Max Schrems</a>. Schrems brought his complaint to the Irish Data Protection Commissioner (Facebook’s European base is in Dublin) over the firm’s sharing of his personal data with US authorities.</p>
<p>The commissioner originally rejected the complaint and the case has now escalated to the Court of Justice of the European Union (CJEU). That court’s ruling could upset a 15-year-old balancing act between EU and US laws. If the court finds in Schrems’ favour, this could have major implications in how most popular internet services – largely US firms – act in respect of their non-US users.</p>
<h2>The Atlantic divide</h2>
<p>The conflict stems from the EU’s comprehensive and relatively stringent data protection regime. In order for EU and US organisations to work together a set of standards needs to be agreed to ensure that European citizens’ data receives the same protection when transferred to other countries as it would within the EU. Over the years, the European Commission has recognised various countries as providing adequate data protection – including the US in 2000, for which transfers of data between the US and EU fall under the <a href="http://ec.europa.eu/justice/data-protection/document/international-transfers/adequacy/index_en.htm">Safe Harbour Framework</a>.</p>
<p>But the safe harbour principles include exclusions for “national security, public interest, or law enforcement requirements” – exclusions not taken into account in assessing legal protections in the US. As revealed by <a href="http://www.theguardian.com/us-news/the-nsa-files">files released by Edward Snowden</a>, US laws such as the <a href="https://www.law.cornell.edu/uscode/text/50/1881a">Foreign Intelligence Surveillance Act</a> (FISA) have opened the door since 2000 to mass surveillance of non-US citizens and the collection and storing of their personal data. Considering the review procedure for FISA authorisations is entirely secret, this is worrying for anyone without the constitutional protections afforded to US citizens.</p>
<p>While differing treatment of US and non-US citizens had been <a href="http://www.europarl.europa.eu/RegData/etudes/note/join/2013/474405/IPOL-LIBE_NT%282013%29474405_EN.pdf">raised by privacy experts</a> even before Snowden’s leaks, they revealed the capabilities of the US National Security Agency to collect and analyse <a href="http://www.theguardian.com/world/interactive/2013/nov/01/prism-slides-nsa-document">vast amounts of internet communications</a> and online browsing histories. It also made clear the extent to which internet giants such as Facebook, Microsoft and Yahoo <a href="http://www.theguardian.com/world/2014/feb/03/microsoft-facebook-google-yahoo-fisa-surveillance-requests">complied with US requests for data</a>. Suddenly the European Commission’s claim that US law offers adequate data protection seemed unfounded.</p>
<h2>Facebook vs the people</h2>
<p>In his case against the Irish data commissioner, Max Schrems attacks the commissioner’s refusal to investigate his claim. Schrems’ argument is that Snowden’s revelations show there is no meaningful data protection in US law as it allows bulk collection and retention of non-US citizens’ data even without a court order. The commissioner’s refusal could nonetheless be justified by the presence of the US on the European Commission’s list of approved adequate legal systems, however discredited that now seems.</p>
<p>In July last year, the Irish High Court <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=157862&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=244813">referred</a> the case to the CJEU, essentially to rule on whether a member state’s data protection agency such as the Irish Data Protection Commission is “absolutely bound” by the European Commission’s decision to declare the US a safe harbour for EU data. </p>
<p>The alternative would allow the commissioner to assess whether US law provides the protection expected by European citizens until the European Commission issues a new and valid decision. The CJEU has <a href="https://euobserver.com/justice/128131">now heard arguments</a> from both parties, with the advocate-general’s opinion expected in June.</p>
<h2>Worldwide implications</h2>
<p>The CJEU had already <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=602725">ruled in April 2014</a> that the European mass data retention scheme was invalid due to the absence of appropriate legal safeguards. Some expect the ruling will address the legality of the commission’s decision, although the question posed to the CJEU is not exactly framed in these terms.</p>
<p>So the CJEU’s ruling could affect the current safe harbour agreement between the US and EU, perhaps even raising the possibility it may be suspended. National data protection agencies may also be tempted to suspend data transfers to the US – something that could interrupt the reach of US-based online services to some member states. However, because the treatment of personal data for the purposes of national security falls outside the scope of EU law, the CJEU’s answer might not be that obvious.</p>
<p>Are we at an impasse? A recent study that compared international approaches to data protection has <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2551164">shown</a> that the laws of many EU member states do not prohibit the bulk collection and retention of foreign data. But EU member states do not necessarily have the same capabilities as those of the US. If anything this tale reveals the need for minimum international standards as much as it demonstrates the legal complexities that arise from the lack of them.</p><img src="https://counter.theconversation.com/content/39649/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sophie Stalla-Bourdillon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Snowden’s surveillance revelations threaten to shatter a 15-year-old US-EU agreement on data protection, with consequences for major internet firms.Sophie Stalla-Bourdillon, Associate Professor in IT and IP law, Director of iLaws , University of SouthamptonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/300632014-08-07T09:26:01Z2014-08-07T09:26:01ZNSA surveillance is a clear threat to journalism in America<p>Digital mass surveillance is having a chilling effect on US democracy, affecting journalists and lawyers, a <a href="http://www.hrw.org/node/127364">report</a> from human rights organisations has warned.</p>
<p>The report, by Human Rights Watch and the <a href="https://www.aclu.org/">American Civil Liberties Union</a>, concludes that some of the most fundamental freedoms are under threat. The organisations argue that the government’s policies on secrecy and preventing leaks, as well as its stance on officials talking to the media, undermine traditional US values.</p>
<h2>Press under threat</h2>
<p>When it comes to journalism, the Snowden case has already had an impact in a number of high-profile cases. In July 2013, staff at the Guardian had to destroy hard drives containing files leaked by Snowden under threat of action from the UK government. In February of the same year, <a href="http://www.bbc.co.uk/news/uk-23782782">David Miranda</a>, partner of former Guardian journalist Glenn Greenwald, was held at a London airport for nine hours under the UK Terrorism Act, because of Greenwald’s association with the Snowden case.</p>
<p>These concerns do indeed appear to be playing out in the industry. In 2012 alone, the US federal government reclassified 95 million pieces of information. It’s not clear how many of these were made more or less secret but overclassification is becoming a concern. It has been <a href="http://www.nytimes.com/2011/11/07/opinion/national-security-and-americas-unnecessary-secrets.html">estimated</a> that between 50% and 90% of classified documents could be made public without them posing a security threat.</p>
<p>The Obama administration has also used the 1917 Espionage Act to routinely target whistleblowers. Under the current presidency, eight people have been pursued for leaking information to the press, including Edward Snowden and Chelsea Manning, the WikiLeaks source. Just three such prosecutions were pursued between 1917 and Obama’s election. </p>
<p>“We’re not able to do our jobs if sources are in danger”, a national security reporter told Human Rights Watch and the ACLU. These concerns are in turn leading to increasing use of encryption technology among a significant number of journalists interviewed for the report.</p>
<p>But while the use of some tools such as the Tor browser or the PGP encryption service to secure emails can definitely reduce the risk of being exposed to government surveillance, the report notes that many journalists fear they are not completely safe. This was a fear raised by Pulitzer Prize-winning reporter Erich Schmitt when he warned that asking sources to protect their digital communication can actually attract more attention to their communications. Others reported having to pay for encryption technologies out of their own pocket and while some journalists are being trained to use them by their employers, others are having to do it alone.</p>
<p>These difficulties are also affecting public discourse, especially in the United States. If sources are reluctant to talk, information doesn’t get through to the public. When it comes to reporting national security issues, several journalists described the climate in the US as comparable to what they might come up against in more authoritarian countries. Journalist Peter Maass is quoted in the report as saying he is “horrified and outraged” by the situation, revealing that he has the same problems working as a reporter in the US as he did in the former Soviet Union and North Korea.</p>
<p>Similar concerns are expressed in the report by lawyers, who warn that client confidentiality is at risk. “I don’t send any information by email, attachment, or phone”, says one interviewed defense attorney, “I don’t use GChat or WhatsApp for anything but ‘Hi, what’s up?’. I don’t even talk on Skype.” By contrast, the government officials interviewed for the report backed NSA surveillance.</p>
<p>In October 2013, the Committee to Protect Journalism released a report denouncing the dangers which journalism is exposed to in the US in the wake of the Snowden case, coming to similar conclusions as the two human rights organisations. And it came to no surprise for some to see the NSA listed in the 2014 Reporters Without Borders <a href="http://12mars.rsf.org/2014-en/enemies-of-the-internet-2014-entities-at-the-heart-of-censorship-and-surveillance/">Enemies of the Internet</a> report. </p>
<p>This report is not the first to raise concerns about the future implications of what we have learned from the Snowden leaks but it gives us a broader picture of the magnitude of the case. Snowden himself has accused the NSA of <a href="https://theconversation.com/the-internet-is-on-fire-but-snowdens-heroes-cant-save-us-24241">setting fire to the future of the internet</a> but now it seems journalism and the legal profession are in danger too.</p>
<p>In fact, the Snowden case implicates every field of our constantly connected and wired society, especially when it comes to <a href="https://theconversation.com/nine-reasons-you-should-care-about-nsas-prism-surveillance-15075">digital communication through commercial and popular tools and social media</a>. We should be outraged but we should also use the case as evidence in the fight to narrow the scope of surveillance, reduce government secrecy and better protect national security whistleblowers – as well as the lawyers who defend them and the journalists who tell their stories.</p><img src="https://counter.theconversation.com/content/30063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Di Salvo does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Digital mass surveillance is having a chilling effect on US democracy, affecting journalists and lawyers, a report from human rights organisations has warned. The report, by Human Rights Watch and the…Philip Di Salvo, PhD Candidate in Communications Sciences and Journalism, Università della Svizzera italianaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/282782014-06-20T14:37:23Z2014-06-20T14:37:23ZThe London meeting that could shape the future of the internet<figure><img src="https://images.theconversation.com/files/51763/original/j34th6gc-1403256228.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Edgware Road: where big decisions are made.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/howardlake/3694428710/sizes/l">HowardLake</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The <a href="https://www.icann.org/">Internet Corporation for Assigned Names and Numbers</a> is holding its <a href="http://meetings.icann.org/icann50">50th public meeting</a> in London from June 22. </p>
<p>An international crowd spanning business, politics and civil society will be meeting across 60 events to try to reach agreements on some important issues about the shape of the internet. The summit comes at a time of great change for internet governance and some very important issues are on the table.</p>
<p>ICANN is the not-for-profit organisation that controls the registration of domain names – the web addresses at the heart of the internet. It is seen as the body that maintains “root” of the internet and therefore plays a key role in ensuring its stability as a global, decentralised communications system. Its function is mainly related to the code level of the internet with the basic aim of ensuring that whatever device you are reading this on is able to, once a connection is found, access the information held online.</p>
<p>So ICANN can be seen as a group of technicians. These are the engineers who enable the miracle of innovation that is the internet to keep on going. But since controlling the root of the internet comes with immense power, ICANN has necessarily had to become more political. Reflecting this change, ICANN shifted its structure in 2006 to share more power more equally between different countries rather than concentrating it in the US alone.</p>
<p>The last ICANN meeting happened in Singapore just three months ago, but regular meetings are needed because of the potentially dramatic changes under discussion at the moment. There are two key, current areas for debate which will have a significant role in shaping the future of the organisation and, indeed, the internet itself.</p>
<p>The first is the expansion of web addresses to allow generic top-level domain names (<a href="http://newgtlds.icann.org/en/">g-TLDs</a>). This extension means anyone wanting to register a domain name is no longer restricted to using .com at the end of their web address. This is extremely significant development as it considerably increases the number of web addresses available. But it also raises problems for ICANN, which will have to control the registries, develop effective complaints mechanisms and protect existing rights holders.</p>
<p>The aim is to promote competition while minimising the potential for exploitation through, for example, g-TLD holders charging exorbitant fees for registration. The decision to expand the g-TLDs has drawn criticism because it could place extra burdens on people and businesses as they try to set up a web presence. It could also make it easier for those advising companies on maintaining a website to charge consultancy fees.</p>
<p>It is fitting that this is the subject of numerous meetings at ICANN50. Hopefully these will focus on developing robust, fair procedures to support the increase in domain names and ensure that the end user is at the centre of the discussion at all times.</p>
<p>The second key area relates to the very heart of ICANN itself and, in particular, its relationship with the US government. While this has been a subject of discussion for some time, the revelations of the past year about the extent to which US government agencies have been invading privacy through the internet has made it all the more pressing. ICANN started in the US and its ties to a state that has been systematically exploiting the internet to invade privacy has repercussions for internet governance.</p>
<p>The manner in which the root operates can be manipulated in order to make it easier to track information and infringe upon users’ privacy. While ICANN is a self-declared organisation with an international structure, it does operate under a contract with the US’ National Telecommunications and Information Administration (NTIA). In March 2014, however, an announcement was made stating that the NTIA did not intend to renew this contract.</p>
<p>This came as a surprise to many but could be a step towards reducing the reach of the NTIA. Breaking the tie would leave ICANN as a truly international body without the “steadying hand” of one individual state. For many this would be seen as a positive step; a split from the body which had committed high-profile and ongoing violations of citizens’ trust.</p>
<p>But it will also mean that ICANN will have to reflect on its structure and procedures in order to ensure that control is shared equally and that certain interests are not protected more than others. ICANN has in the past been criticised for its lack of transparency and accountability, such as when it made the decision to expand g-TLDs. Some suggestions for ICANN’s future restructuring include separating the management of its technical functions from those that are more political, and creating an independent monitoring body to hold it to account. Hopefully there will be a great deal of introspection, planning and negotiation in London.</p>
<p>ICANN50 is crucial to the development of an open, stable and secure internet. It should therefore be a forum in which the concerns of everyone who uses the internet are addressed. There needs to be a renewed focus on human rights and protecting end users. Many, but not all, of ICANN’s meetings are public, so I urge you to <a href="http://meetings.icann.org/icann50">participate remotely</a>. More than ever, there’s a need for citizens to take part in the discussions that shape the internet.</p><img src="https://counter.theconversation.com/content/28278/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Easton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Internet Corporation for Assigned Names and Numbers is holding its 50th public meeting in London from June 22. An international crowd spanning business, politics and civil society will be meeting across…Catherine Easton, Lecturer, Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/273452014-05-30T13:01:16Z2014-05-30T13:01:16ZNew data shows drones killed hundreds of Pakistani civilians<p>The US’s program of drone strikes in Pakistan has, according to recent reports, <a href="http://thinkprogress.org/world/2014/05/29/3442585/drones-pakistan-drought/">slowed down considerably</a>. But while this will encourage various observers, and while the Obama administration <a href="http://www.bbc.co.uk/news/world-asia-22653476">earned some praise</a> for committing to more transparency and accountability in its drone operations, it is still covertly conducting lethal attacks abroad (in <a href="http://www.nytimes.com/2014/04/22/world/middleeast/us-drones-and-yemeni-forces-kill-qaeda-linked-fighters-officials-say.html?_r=0">Yemen</a>, for instance) – and official details on what it has done in Pakistan are still anything but forthcoming.</p>
<p>Some light has been shed on how the drone program works; in October 2013, the Washington Post revealed how <a href="http://www.washingtonpost.com/world/national-security/documents-reveal-nsas-extensive-involvement-in-targeted-killing-program/2013/10/16/29775278-3674-11e3-8a0e-4e2cf80831fc_story.html">the NSA is also involved</a> in the targeted killing program. And early in 2014, The Intercept published <a href="https://firstlook.org/theintercept/article/2014/02/10/the-nsas-secret-role/">more details</a> about how “controversial metadata analysis and cell-phone tracking technologies” used by the NSA for its surveillance programs are also used to identify drone targets.</p>
<p>But despite these efforts, the US’s continued failure to live up to its own transparency commitments makes it difficult to measure the true toll of its drone strikes in Pakistan – and particularly the number of civilian victims.</p>
<p>To shed light on this heavy humanitarian cost, the Bureau of Investigative Journalism (BIJ) has gathered ten years’ worth of data about US drone strikes in Pakistan, providing at last a picture of the types of targets attacked by the CIA in the country. </p>
<h2>In the crosshairs</h2>
<p>The BIJ was able to disclose details on the types of building involved in the attacks, the numbers of missiles used and people killed or injured. All the data are available in a dataset <a href="http://www.thebureauinvestigates.com/2014/05/23/get-the-data-what-the-drones-strike/">here</a>. </p>
<p>As of May 2014, the bureau’s <a href="http://www.thebureauinvestigates.com/2014/05/23/most-us-drone-strikes-in-pakistan-attack-houses/">report</a> has identified 383 CIA drone strikes in Pakistan, counting at least 2,296 people killed – including 416 civilians. </p>
<p>According to the BIJ data, 61% of all attacked buildings were domestic ones, 120 of which were completely destroyed. At least 1,500 people were killed in strikes against domestic buildings and at least 222 civilians are estimated to have lost their lives in such attacks. </p>
<p>Mosques and madrassas are also included in the targets list. Of all the types of buildings targeted, they have suffered the deadliest strikes, with an average of 2.7 civilians killed in each attack. According to the report, at least eight attacks targeted these kinds of buildings, with an average of 17 victims on the ground in each strike.</p>
<p>The attack which took place in Chenegai, Bajaur, on <a href="http://www.thebureauinvestigates.com/2011/08/11/more-than-160-children-killed-in-us-strikes/">October 30 2006</a> is reported as a “particularly bloody strike”. On that occasion, a religious school was hit; 81 people were reportedly killed.</p>
<p>Besides being the most targeted type of buildings, domestic buildings are significant for another reason: in Afghanistan, strikes against domestic houses have been banned since 2008, in order to avoid civilian deaths. The International Security Assistance Force (ISAF) released a Tactical Directive, <a href="http://www.thenation.com/article/176262/mass-casualty-attacks-afghan-war">leaked to the press in 2013</a>, designed to prevent innocent killings. It stated that all “compounds” have to be considered “civilian” unless “proven to be clear”. </p>
<p>But despite this attempt to limit attacks against domestic buildings in Afghanistan, the BIJ reports that the CIA has still “consistently attacked houses” in Pakistan. </p>
<h2>Disappearances</h2>
<p>The term “compound” itself deserves scrutiny. People who live in Afghanistan and tribal areas of Pakistan do actually live in structures “often described as compounds”. But in most of the cases, these buildings are real domestic houses, “often rented or commandeered by militant groups”. </p>
<p>Conducting their research, BIJ reporters Alice K Ross and Jack Serle underlined a deterioration in transparency over the last 18 months of attacks. In reports from these strikes, targets and victims “have almost completely vanished”, together with the reporting of civilian deaths, despite the apparently growing number of strikes targeting houses. </p>
<p>According to <a href="http://www.thebureauinvestigates.com/2014/05/23/most-us-drone-strikes-in-pakistan-attack-houses/">their report</a>, Mansur Mahsud, director of the Pakistani Fata Research Center, attributed this to “changes in behaviour on the ground”: sympathetic locals used to host militants in their homes, but “the threat of drone strikes means that now, when militants come to stay, civilians usually leave”.</p>
<p>Also under scrutiny in the BIJ report is the timing of strikes. According to the data, houses were twice as likely to be attacked at night as in the afternoon – and attacks conducted during the evening, with more people likely to be at home, were clearly more deadly. Vehicles were also targets of drones strikes, but were mostly attacked in the afternoon and strikes on them involved fewer civilians.</p>
<h2>Naming the dead</h2>
<p>The BIJ gathered data about the strikes from different sources. This process involved media sources and, among others, information gathered on the ground, prior research, evidence from legal cases, and leaked documents such as the WikiLeaks cables database. </p>
<p>It is important to note, as the BIJ points it out, that in the case of Pakistan, the CIA is not revealing information and is not commenting on its drone program. The authorities in Islamabad, meanwhile, don’t publish a casualty count. </p>
<p>The report on drone casualties in Pakistan is part of a broader protect the BIJ is conducting on the “<a href="http://www.thebureauinvestigates.com/category/projects/drones/">Covert Drone War</a>” underway not just in the AfPak arena, but also in Yemen and Somalia. </p>
<p>In early 2013, the BIJ also launched a project called “<a href="http://www.thebureauinvestigates.com/2013/02/04/naming-the-dead-bureau-announces-new-drones-project/">Naming the Dead</a>” to seek more transparency in US drone activities. And besides its efforts in data gathering and analysis, the Bureau is also working with using data visualisation to map all the mentioned strikes. To that end, together with its partners Forensic Architecture and Situ Research, the BIJ has created an interactive online map – available <a href="http://wherethedronesstrike.com/">here</a> – that provides some context for the Pakistan report.</p>
<p>Ron Wyden, a US senator from Oregon, famously decried the Obama administration’s <a href="http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html">targeted killings of American citizens abroad</a> with the <a href="http://www.theatlantic.com/politics/archive/2013/03/a-devastating-26-word-challenge-to-president-obamas-leadership/273789/">statement</a> that “every American has the right to know when their government believes that it is allowed to kill them.” </p>
<p>In that spirit, now that the killing of Pakistani targets outside of international law appears to have slowed, the BIJ’s work to expose them may at least extend some posthumous recognition to the US’s civilian victims.</p><img src="https://counter.theconversation.com/content/27345/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Di Salvo does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US’s program of drone strikes in Pakistan has, according to recent reports, slowed down considerably. But while this will encourage various observers, and while the Obama administration earned some…Philip Di Salvo, PhD Candidate in Communications Sciences and Journalism, Università della Svizzera italianaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/265402014-05-13T16:25:36Z2014-05-13T16:25:36ZIn a post-Snowden world, can we afford to criticise Clarkson?<figure><img src="https://images.theconversation.com/files/48388/original/4mvrqpjr-1399986778.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anyone could be Clarksoned these days.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/neonbubble/6652403717/in/photolist-b8RiRP-b8RijZ-b8RbVi-b8R5ur-b8Rizr-b8RSNn-b8Rc3M-b8RTFn-b8RjZT-b8Ri66-b8Rj9X-b8RhHe-b8Rjxi-b8RbLX-7ydoJ8-7yhn27-7yhtiL-7yhg5q-7ydnPX-7yhdHu-7yhdDJ-7yhszJ-7ydsge-b8RbAr-b8RTea-b8RhTT-9Emirh-e2nC6y-e2nCT7-9EikMR-9EiryX-9EiF4P-9EmuFY-9Ems1A-9EiFuv-9EixyF-9EmjHo-9Emt47-9EiqnD-9EmmNS-9EmxNw-9EmwZG-7ej34r-9EisVP-9Emep3-9EinKV-9Eivyc-4rR3mK-9Em3Hy-9Emdsf">Mark Hooper</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Jeremy Clarkson is <a href="http://www.theguardian.com/media/video/2014/may/02/jeremy-clarkson-begs-forgiveness-n-word-video">in the soup again</a> for saying the wrong thing. This time he has been accused of using <a href="http://www.newstatesman.com/media/2014/05/n-word-jeremy-clarkson-has-finally-urinated-live-rail-racism">deeply offensive, racist language</a>, in a Top Gear outtake two years ago.</p>
<p>The usual gang of <a href="http://www.theguardian.com/media/2014/may/02/bbc-undecided-jeremy-clarkson-top-gear-nword-apology">anti-Clarksonites</a> and more than a few others have lined up to demand the BBC fire him. Perhaps surprisingly, <a href="http://www.politics.co.uk/news/2014/05/02/michael-gove-defends-jeremy-clarkson-in-racism-row">members of the government</a> and <a href="http://www.theguardian.com/commentisfree/2014/may/02/revulsion-jeremy-clarkson-progressives-bigots">some in the media</a> not otherwise known as Clarkson fans have offered him qualified support.</p>
<p>Television presenters have long faced the threat of old footage being dug up an used against them. Now, though, we all have to worry about it. Unless you’ve spent the last two decades saying nothing bad about anyone, you could find yourself in the soup too.</p>
<p>We all love a good witch hunt, as long as we are not the one being hunted. But could any of us withstand the kind of scrutiny Clarkson’s misspoken offence, <a href="http://www.bbc.co.uk/news/uk-27249038">recognised at the time but resurrected two years later</a>, was subjected to? To be blunt, we are going to have to.</p>
<p>Soundbite politics, the 24-hour news cycle and our short attention spans mean that words and phrases are taken out of context and wielded as weapons to demonise and misrepresent opponents, shout insults past each other, blame and preferably punish someone.</p>
<p>And more importantly, for the best part of the past 25 years, commercial companies have been recording, storing, processing and analysing everything we see and do online.</p>
<p>Since the 2006 EU <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:105:0054:0063:EN:PDF">Data Retention Directive</a>, telecommunications service providers have been obliged to store details of, and provide government access to, everything everyone does on the telephone or internet for a period of between six months and two years.</p>
<p>We’ve also discovered in the past year via the <a href="http://www.theguardian.com/world/the-nsa-files">revelations of former NSA contractor, Edward Snowden</a>, that governments, in particular the UK and US variety, have been going much further, watching and recording our networked lives in even more detail than previously realised. All telephone and internet traffic is being <a href="http://www.theguardian.com/world/prism">collected, processed and stored</a>, nominally for current or potential future use in the fight against terrorism or serious crime.</p>
<p>Anyone’s complete online life history can be examined in forensic detail. Just one of the problems with these mass commercial and governmental silos of personal digital life histories is that small items can sit like unexploded ordnance in your record. They can be taken out of context at any time and cause serious damage.</p>
<p>Most of us don’t have Clarkson’s public profile but, as Cardinal Richelieu is rumoured to have said: “Give me six lines written by the most honest man and I’ll show you the evidence to hang him.”</p>
<p>And even if we’ve never said anything offensive ourselves, which of us knows what nefarious activities people connected to people connected to people connected to us via the internet might have engaged in at some time?</p>
<p>Chris Inglis, former deputy director of the NSA, told Congress in July 2013 that you don’t need to be a suspected bad guy to gain the attention of the intelligence services. The NSA track people <a href="http://www.theguardian.com/world/interactive/2013/oct/28/nsa-files-decoded-hops">“three hops”</a> from their targets.</p>
<p>If I had communicated with 200 people during my online lifetime I’d be three hops away from more than 5m people. And most of us interact with far more than that.</p>
<h2>Europe divided</h2>
<p>In a <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=320818">historic decision</a> on April 8, the Court of Justice of the European Union hinted that all this amounts to mass surveillance when deciding to invalidate the Data Retention Directive. Several European countries had already taken steps to overrule the directive. The UK government, by contrast, has decided the UK data retention regulations will <a href="https://publicaffairs.linx.net/news/?p=10430">remain in force</a> whilst they consider what to do about the ruling.</p>
<p>The Court of Justice of the EU noted in its decision that the fact that anything we say or do is being recorded is likely to have a chilling effect on our freedom of expression. </p>
<p>I don’t find casual laddish racist remarks at all funny. I find them offensive. They cause division, discrimination and tension. But Clarkson misspoke, by accident, two years ago, when recording a popular TV programme. The trademark of said programme is three middle-aged men, acting like big kids, mucking about with cars and laddishly insulting people for laughs.</p>
<p>Clarkson has <a href="http://www.bbc.co.uk/news/uk-27249038">apologised</a> for inadvertently using a word he says he personally loathes. The motives of those who leaked the recording are not known.</p>
<p>I have no idea whether he is racist, though I suspect he isn’t. Intended or not, ill-used words do cause damage but it is the presence or absence of hateful intent behind such remarks rather than the words used that define the mindset of the speaker. We can’t read minds so we interpret that intent, by proxy, from people’s words.</p>
<p>Nevertheless, I would suggest that he or she who wishes to throw metaphorical stones at Jeremy Clarkson think also of the many stored and detailed digital dossiers they have created in their own digital life and how fragments thereof might well, one day, be held against them.</p><img src="https://counter.theconversation.com/content/26540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ray Corrigan is affiliated with The Open University.
I have in the past consulted for the UN's World Intellectual Property Organisation (WIPO) and the consumer watchdog, Consumer Focus.
I have contributed to NGOs such as the Open Rights Group and the Foundation for Information Policy Research.
I am a signatory of a variety of human rights instruments and petitions such as the International Principles on the Application of Human Rights to Communications Surveillance <a href="https://en.necessaryandproportionate.org/text">https://en.necessaryandproportionate.org/text</a></span></em></p>Jeremy Clarkson is in the soup again for saying the wrong thing. This time he has been accused of using deeply offensive, racist language, in a Top Gear outtake two years ago. The usual gang of anti-Clarksonites…Ray Corrigan, Senior Lecturer in Technology, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/242412014-03-12T06:38:08Z2014-03-12T06:38:08ZThe internet is on fire but Snowden’s heroes can’t save us<figure><img src="https://images.theconversation.com/files/43624/original/q58qtfgn-1394575301.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Someone get a fire extinguisher! Just, you know, maybe not Mark Zuckerberg.</span> <span class="attribution"><a class="source" href="http://www.flickr.com/photos/cibomahto/2291127824/sizes/o/">cibomahto</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Just ahead of the 25th anniversary of the World Wide Web, Edward Snowden has sent what he hopes will be a strong message to the powers that control the internet in a video link streamed live to South by Southwest event in Austin, Texas.</p>
<p>Snowden pitched his appearance as a call to arms. The NSA is [“setting fire to the future of the internet”](<a href="http://www.bbc.co.uk/news/technology-26525260">http://techcrunch.com/2014/03/10/snowden-the-nsa-is-setting-fire-to-the-future-of-the-internet/</a> and those who understand how the nuts and bolts of the web work must step up to be our firemen.</p>
<p>His words have resonated with a lot of angry people. Revelations about the NSA’s Prism project have confirmed many people’s worst fears. The internet grew up in a culture of anti-authoritarianism, bottom up consensus and the rule of standards but it has been co-opted by powerful states that undermine those values and challenge our human right to private communications.</p>
<p>We might have expected this type of behaviour from authoritarian regimes but there was an assumption that in liberal states, where the promotion of human rights online has been championed, we wouldn’t be subjected to this kind of invasion of our privacy. But the recent revelations that GCHQ was storing images from <a href="http://www.theguardian.com/world/2014/feb/27/gchq-nsa-webcam-images-internet-yahoo">Yahoo chat</a> (many of which were sexually explicit) put paid to the notion that even the most private online interactions can be secured.</p>
<p>The extent to which the NSA and GCHQ have been monitoring not only suspected wrongdoers but ordinary citizens exposes some deep concerns about the accountability of intelligence organisations – a frustration that led Edward Snowden to leave his comfortable life as a security contractor and <a href="http://www.theguardian.com/world/the-nsa-files">reveal what had been happening</a> last year.</p>
<h2>Where do we go from here?</h2>
<p>At SXSW, Snowden urged those who build websites and develop the services on which we rely to take action. For him, these are the people best placed to enhance our privacy. He said they should develop more effective encryption and encourage the companies they work for to make it readily available to the average user. Using an anonymising tool like The Onion Router <a href="https://theconversation.com/sorry-nsa-but-the-tor-network-is-secure-and-its-here-to-stay-18945">(TOR)</a> is fine for those determined to protect their online profile, for example, but it is beyond the capacity or inclination of many average users. This is where innovation from the private sector can help, just like Snowden proposes.</p>
<p>We shouldn’t be surprised to hear an engineer proposing technological solutions to what are essentially political problems. His response is common and rational. But it ultimately ignores the ambivalence most people feel about whether it should be the job of private companies or states to protect our civil liberties online.</p>
<p>Clearly, most people have not been communicating online in the understanding that quite so much of their data has been retained and stored by Western governments. We do give it away for free to tech companies like Google and Facebook though, and perhaps that’s why Snowden thinks we are more comfortable handing them more responsibility.</p>
<p>This of course, happens in a framework of commercial exchange. In return for the search engines and social networking tools we use every day, our personal data becomes a currency which is sold on to allow for targeted advertising. We are all complicit in this arrangement but few of us really understand what happens to our data and who has access to it. While these companies watch us, who is watching them?</p>
<p>Perhaps Snowden is hoping an organisation like the <a href="https://www.globalnetworkinitiative.org/">Global Network Initiative</a> is will step in to save us. This industry led organisation comprised of a number of the information giants – Google, Yahoo, Facebook – has developed standards and practices for how companies should deal with requests by governments to hand over data. </p>
<p>Presumably, the GNI was a response to requests made in response to demands for information from governments in places like China and the Middle East. But where was the GNI when PRISM was on the prowl? </p>
<p>None of this will sit well with citizens if Snowden wants us to rely on the technical community to secure our privacy. How we want the internet to be governed over the next 25 years and beyond is a political question. It will take much more engagement with processes that can offer accountability and representation. It’s unlikely that leaving it to the market is a long term solution.</p><img src="https://counter.theconversation.com/content/24241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madeline Carr does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Just ahead of the 25th anniversary of the World Wide Web, Edward Snowden has sent what he hopes will be a strong message to the powers that control the internet in a video link streamed live to South by…Madeline Carr, Lecturer in International Politics and the Cyber Dimension , Aberystwyth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/238422014-03-03T06:02:11Z2014-03-03T06:02:11ZHow to protect yourself when GCHQ goes for your webcam<figure><img src="https://images.theconversation.com/files/42770/original/ht5z8ghv-1393611178.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">GCHQ has been making friends online. Shame it didn't tell them.</span> <span class="attribution"><a class="source" href="http://www.flickr.com/photos/cefeida/3464579332/sizes/l/">Magic Madzik</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>News that government intelligence agency GCHQ has been intercepting and storing webcam images from 1.8 million users of Yahoo’s chat service under the codename <a href="http://www.theguardian.com/world/2014/feb/27/gchq-nsa-webcam-images-internet-yahoo">Optic Nerve</a> is a reminder of how close we are to living in a surveillance state. Webcams, embedded in laptops and sitting on top of monitors, have become a standard piece of computing equipment, but it has now become clear that these can be used against us. </p>
<p>Hackers have been stealing webcam images of unsuspecting users for some time. The Metasploit tool comes with packages that make it easy for even a novice hacker to gain access to the webcam of any computer that doesn’t have all of the available patches and updates installed.</p>
<p>Equally worrying are <a href="http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/18/research-shows-how-macbook-webcams-can-spy-on-their-users-without-warning/">reports</a> that hackers could use the webcam on your laptop without even triggering the embedded warning light that indicates to the owner that the camera is in use. </p>
<p>Once they’ve gained access to your webcam, a hacker can then go on to trade or sell access to it on hidden websites and password protected chat rooms.</p>
<h2>How GCHQ did it</h2>
<p>But now it seems we have another unwelcome guest watching us as we type and chat. And what makes the actions of GCHQ unique is the scale on which it is capturing these images.</p>
<p>The Edward Snowden leaks revealed that GCHQ is tapping many of the large internet backbone cables that carry hundreds of gigabits of information from computers all over the world every second, including unencrypted Yahoo chat sessions. </p>
<p>GCHQ’s main technical achievement was to find a way of scanning this massive amount of data and extracting the webcam images. While easy to do for a single image, the scale on which GCHQ did this must have taken a great deal of both technical expertise and computing power. </p>
<p>The second issue GCHQ had was how to store so much data. Here compromises were made. Only one still image from every five minutes of video was stored. GCHQ’s aim was to view images from known targets (or users with screen names that were similar to known targets). It also experimented with face recognition technology to try to detect images of known suspects. But the leaks published by the Guardian make it clear that many of the images stored were from highly private, and in some cases sexually explicit, chats between individuals who were not intelligence targets.</p>
<h2>Alternatives for Yahoo deserters</h2>
<p>The best way to protect the privacy of your webcam chats is to make sure that they are encrypted. Yahoo’s web chat server was based on its Yahoo Messenger system, which dates back to the nineties. This legacy system has never supported encryption and it was this weakness that made it possible for GCHQ to harvest personal images on such a large scale.</p>
<p>Google’s offering, Google Talk, was developed much more recently and is possibly a better option in these post-Snowden times. The service encrypts data between the user and its servers, and then re-encrypts it when it is sent to another user. This would make the mass harvesting of images harder, but still allows Google access to the images. So in some ways you are more protected, but it means putting faith in Google to keep your data away from <a href="http://www.wired.com/threatlevel/2013/06/google-uses-secure-ftp-to-feds">prying eyes</a>.</p>
<p>Apple’s FaceTime encrypts the images end-to-end, all the way from one user to the other, giving the best level of protection. That said, incidents such as the recently discovered <a href="http://www.wired.com/threatlevel/2014/02/gotofail/">“goto fail” bug</a> in Apple’s encryption remind us that any protection system can fail.</p>
<p>The best option of all would be for some discussion about how we strike the balance between personal privacy and national or international security. According to the latest leaked documents, GCHQ staff have been viewing intimate images of webcam users who were not intelligence targets.</p>
<p>This would be illegal if a hacker had done it but it is likely that GCHQ’s actions are legal under the UK <a href="http://www.legislation.gov.uk/ukpga/2000/23/contents">Regulation of Investigatory Powers Act</a>. Even so, it seems doubtful that the mass collection of intimate images of innocent people was something that the authors of this law intended. We need to think about whether we can update this and other laws to better suit the digital age. That means better suited to everyone, rather than just GCHQ.</p><img src="https://counter.theconversation.com/content/23842/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The University of Birmingham, where the author works, is a "GCHQ Academic Centre of Excellence".</span></em></p>News that government intelligence agency GCHQ has been intercepting and storing webcam images from 1.8 million users of Yahoo’s chat service under the codename Optic Nerve is a reminder of how close we…Tom Chothia, Lecturer in Computer Science, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/223182014-01-27T14:26:55Z2014-01-27T14:26:55ZData surveillance is necessary, but we must have transparency<figure><img src="https://images.theconversation.com/files/39861/original/pg9snp2k-1390573498.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who's viewing your metadata?</span> <span class="attribution"><span class="source">Adam Fagen</span></span></figcaption></figure><p>The <a href="http://www.guardian.co.uk/world/the-nsa-files?INTCMP=SRCH">latest intelligence documents</a> published by The Guardian tell us that the US National Security Agency (NSA) is harvesting up to 200 million text messages a day under the DISHFIRE programme, and that the UK Government Communications Headquarters (GCHQ) can “mine” this hugely rich source of data. These are the revelations come courtesy of former intelligence contractor Edward Snowden, who has exposed methods of communications interception to an unprecedented extent. </p>
<p>Despite the wailing and gnashing of teeth that has greeted Snowden’s revelations in the US, his disclosures have prompted the establishment of a presidential <a href="http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf">review</a> and a <a href="http://www.bbc.co.uk/news/world-us-canada-25769906">speech</a> by Barack Obama on how he proposes to change NSA policy and practice.</p>
<p>In the UK, however, ministers have simply <a href="http://www.theguardian.com/world/2013/oct/31/nsa-files-mps-debate-oversight-of-the-intelligence-services">repeated assertions</a> that the system for regulating intelligence collection is “probably the best in the world”. Parliament’s Intelligence and Security Committee (ISC) reported in mid-July that GCHQ had <a href="http://www.itpro.co.uk/security/20213/gchq-cleared-illegal-use-prism">not acted illegally</a> by accessing the NSA PRISM programme, but said that it would look further into the adequacy of current law. Three months later, the ISC broadened its inquiry to include “the appropriate balance between our individual right to privacy and our collective right to security” and <a href="http://isc.independent.gov.uk/news-archive/11december2013">invited evidence</a> from interested parties.</p>
<p>No-one has doubted the legitimacy of governments carrying out “targeted” surveillance of those against whom there is some level of suspicion. Where there has been some shock and dismay is at the discovery that governments collect seemingly everything.</p>
<h2>Who touched my data?</h2>
<p>The preventive logic of intelligence work has always led agencies to collect as much information as possible: “you never know what you might need tomorrow”. But achieving total surveillance has only become remotely realistic with the growth of digital communications, which provide the “<a href="https://theconversation.com/forget-gchq-the-real-surveillance-state-is-yet-to-come-15073">electronic exhaust</a>” of our lives. The ability to collect, store and search all this information has coincided with an increased demand for intelligence from western governments who, particularly since 9/11, have lived in fear of a “<a href="http://www.rand.org/pubs/monograph_reports/MR989.html">new terrorism</a>”. </p>
<p>Compared with the relatively predictable security threats of the Cold War, this has given rise to great uncertainty as to where, precisely, the next attack might come from. No politician wants to risk being accused of ignoring some potential source of life-saving information – so bulk collection is less a question of necessity than a case of “we can, so we will”.</p>
<p>But is this proportionate? In the <a href="http://www.wired.co.uk/news/archive/2013-06/24/gchq-tempora-101">TEMPORA</a> programme, GCHQ collects 1-2 billion records a day from transatlantic fibre-optic cables. About 30% of this massive volume of communications is rejected immediately, while 40,000 “selectors” chosen by GCHQ and 31,000 chosen by the NSA (based on key words and phone numbers, among other things) trawl the rest. Content remains on the system for three-to-five days and the metadata (information about who is calling who, when, where and for how long) is stored for 30 days – though analysts can store “interesting” material in another database for up to five years. </p>
<p>The NSA has said that it “touches” <a href="http://arstechnica.com/tech-policy/2013/08/dont-worry-nsa-sayswe-only-touch-1-6-of-daily-global-internet-traffic/">1.6% of internet traffic</a>, and that analysts “look at” 0.00004%. Although the agencies have not earned a reputation for complete openness in recent months, these figures look realistic: if 2 billion records a day are “collected”, even the mere 32 million that are “selected” far exceed what can realistically be analysed. That 80,000 will be “looked at” still seems barely plausible if one accepts that analysis ultimately requires a human being to decide what the communication means, however clever the software in use.</p>
<p>In assessing whether this scale of collection is proportionate to the threat and effective in countering it, we face the apparently irresolvable problem that evidence (rather than official assertion) of impact is impossible to obtain. On one hand, while the potential for repressive invasion of privacy is vast, evidence of its actual use barely exists outside of authoritarian regimes. On the other hand, evidence that it has prevented serious attacks is also slim: some attacks are prevented, but precisely how many (and how) is kept very secret.</p>
<p>So, what is to be done? Obama’s recent attempt to reassure the US public that their privacy concerns will be taken more seriously may just be rhetoric. It is inconceivable that US or UK governments will legislate to outlaw bulk collection. The best we can probably hope for is some improvement in the currently inadequate system for control and oversight of current intelligence practices – but this is not a part of the ISC inquiry’s remit. </p>
<p>Unless there is a serious examination of the need for public education in what governments do to gather intelligence and why they do it, public suspicion will persist. As things stand, any enlightenment is more likely to emerge from the non-governmental <a href="http://www.theguardian.com/world/2014/jan/22/independent-commission-future-internet-nsa-revelations-davos">inquiry into internet governance</a> just announced at Davos.</p><img src="https://counter.theconversation.com/content/22318/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Gill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The latest intelligence documents published by The Guardian tell us that the US National Security Agency (NSA) is harvesting up to 200 million text messages a day under the DISHFIRE programme, and that…Peter Gill, Honorary Senior Research Fellow, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/219182014-01-21T03:12:24Z2014-01-21T03:12:24ZObama’s concession on spying makes implicit case for leaks<figure><img src="https://images.theconversation.com/files/39372/original/tq56y6cz-1390188359.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Whatever Barack Obama says, the fact is the US president reined in spying powers in response to public knowledge gained from leaks about NSA activities.</span> <span class="attribution"><span class="source">EPA/Shawn Thew</span></span></figcaption></figure><p>All eyes were on US president Barack Obama when he <a href="http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence">announced his plan</a> to reform the <a href="http://www.nsa.gov/">National Security Agency</a> (NSA) and its ability to collect <a href="https://theconversation.com/your-social-networks-and-the-secret-story-of-metadata-16119">phone metadata</a>. Three main changes will be pursued: the government can no longer hold bulk phone data collected by the NSA; there will be more judicial oversight of the actions of the NSA; and the US government will no longer spy on the leaders and governments of its allies.</p>
<p>The proposed reforms have proven to be a disappointing outcome for those who helped uncover the secret operations of the NSA. <a href="http://wikileaks.org/">WikiLeaks</a> founder Julian Assange <a href="http://www.sbs.com.au/news/article/2014/01/18/obama-pledge-will-change-little-assange">referred to the reforms</a> as unsubstantial. <a href="http://www.theguardian.com/profile/glenn-greenwald">Glenn Greenwald</a>, the journalist who published the leaks by former NSA contractor <a href="http://www.theguardian.com/world/edward-snowden">Edward Snowden</a>, called the announcement a <a href="http://www.smh.com.au/it-pro/security-it/barack-obama-bans-spying-on-leaders-of-us-allies-scales-back-nsa-program-20140118-hv8vq.html">“publicity stunt”</a>.</p>
<p>While the announcement itself may have introduced fairly minor changes, it was still significant. It was first time the leader of the free world curtailed his own powers in response to the leaks of someone the state deemed a <a href="http://www.nytimes.com/2013/11/02/world/europe/snowden-appeals-to-us-for-clemency.html?_r=0">“criminal fugitive”</a>.</p>
<p>In this way, Obama’s announcement to reform the NSA marks the start of a new political reality: one in which leaks may play a larger part in public life.</p>
<h2>A paradoxical US response</h2>
<p>Despite this, the administration’s response to the NSA leaks has been paradoxical. On one hand, Obama reminded us that leaks are a dangerous threat to security and stability. On the other, the leaks are leading to changes to the “secret” work of government.</p>
<p>Obama’s announcement was in no way an apology for the spying by an overpowered NSA. He instead opened his announcement with a poetic romp through history, which he used to defend spying in the post-9/11 era. </p>
<p>Obama played down the role of the leaks in his announcement, saying that leaks have <a href="http://www.theguardian.com/world/2014/jan/17/obama-acknowledges-edward-snowden-nsa-reform">“often shed more heat than light”</a>. He characterised Snowden as a “lone” vigilante, endangering the security of the nation and the lives of ordinary people.</p>
<p>Even so, that position is proving difficult to maintain.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=713&fit=crop&dpr=1 600w, https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=713&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=713&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=896&fit=crop&dpr=1 754w, https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=896&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/39386/original/64b644kv-1390192999.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=896&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In naming Edward Snowden, Barack Obama confirmed the leaks’ role in triggering reform.</span>
<span class="attribution"><span class="source">Supplied</span></span>
</figcaption>
</figure>
<p>According to Obama’s announcement, the US government continues to view mass surveillance as acceptable as long as it has sufficient oversight and the right “checks and balances”. But in the case of the NSA, these “checks and balances” were only possible because of Snowden’s leaks. </p>
<p>It is difficult to imagine that any reforms to the NSA would have been made if not for these leaks. There is no doubt that Snowden and his leaks have been the catalyst for reform.</p>
<h2>Leaks and public dialogue</h2>
<p>While the government’s desire to insulate itself from the threat of further leaks is unsurprising, leaks are now part of the political landscape. Leakers and leaks are not going away.</p>
<p>Despite its limitations, Obama’s reform of the NSA reinforces the importance of exposing power to public scrutiny. Even if we agree that the work of government sometimes requires secrecy, Snowden has triggered an important <a href="http://www.washingtonpost.com/politics/in-speech-obama-to-call-for-restructuring-of-nsas-surveillance-program/2014/01/17/e9d5a8ba-7f6e-11e3-95c6-0a7aa80874bc_story.html">public discussion</a> about privacy, state secrets, public surveillance and the public interest.</p>
<p>Rather than condemning the recklessness of Snowden in the hope that this will protect the state against similar scrutiny in future, the NSA leaks offer governments an opportunity to rethink the way that leaks are integrated into public dialogue. </p>
<p>If we discuss leaks in terms of their content with reference to the public interest obligations of governments, we have a better chance of navigating the difficult space between state secrets and the public’s right to know.</p>
<p>While we will continue to disagree about what is and is not in the public’s interest, the work of Edward Snowden opened up a new and important dialogue about the secret amplification of state surveillance.</p>
<p>It is in our collective interest to have this conversation and to be aware of the “checks and balances” that are needed to protect us from an abuse of these powers.</p><img src="https://counter.theconversation.com/content/21918/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>All eyes were on US president Barack Obama when he announced his plan to reform the National Security Agency (NSA) and its ability to collect phone metadata. Three main changes will be pursued: the government…Max Baker, Lecturer, University of SydneyJane Andrew, Associate Professor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/212512013-12-31T07:04:26Z2013-12-31T07:04:26ZThe catfish, spies and regulators who changed social media<figure><img src="https://images.theconversation.com/files/38309/original/2gt7r96d-1387479429.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Caroline Criado-Perez learnt the hard way about internet trolls in 2013.</span> <span class="attribution"><span class="source">Chris Ratcliffe/PA Wire/Press Association Images</span></span></figcaption></figure><p>It was an extraordinary year for social media. We saw sites such as Twitter shift from being a fun pastime to a fundamental part of life. The change might not have been unexpected but each time a new incident occurred online, lawmakers and service providers alike scrambled to bring in new rules and amend old ones. Surprised, no, but unprepared, yes.</p>
<p>Even before 2013 started, the UK’s <a href="http://www.cps.gov.uk/">Crown Prosecution Service</a> launched a three-month public consultation in an effort to help it grapple with the problems involved in trying to <a href="http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/">prosecute cases involving communications sent via sites such as Twitter</a>. No one could have predicted some of the bizarre, scary and at times tragic incidents that would characterise the months that followed. Here are some of the social media characters we met along the way.</p>
<h2>The catfish</h2>
<p>Last year opened with news of US sports star Manti Te'o falling prey to the relatively unknown online behaviour of catfishing.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=706&fit=crop&dpr=1 600w, https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=706&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=706&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=887&fit=crop&dpr=1 754w, https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=887&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/38300/original/2pftkmr6-1387467260.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=887&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Manti Te'o: unlucky in online love.</span>
<span class="attribution"><span class="source">Shotgun Spratling/Neon Tommy</span></span>
</figcaption>
</figure>
<p>The Notre Dame linebacker had thought for some time that he was in a relationship with Lennay Kekua, a 22-year-old he had met online and with whom he had shared long phonecalls.</p>
<p>In 2012, after a car accident, Kekua was diagnosed with leukaemia, and in September 2012, the disease claimed her life. But in the wake of this tragedy, the threads begin to unravel. Strange inconsistencies emerge. There are no records of Kekua at her university, nor at the hospital at which she had been treated. Her photographs are from a stranger’s account. In January, the penny drops and the news breaks: Kekua is a figment of <a href="http://deadspin.com/manti-teos-dead-girlfriend-the-most-heartbreaking-an-5976517">someone else’s imagination</a> – a catfish – perpetrated on an allegedly innocent Te'o.</p>
<h2>The married people who liked prostitution</h2>
<p>By March, the focus shifts to Facebook’s new <a href="https://en-gb.facebook.com/about/graphsearch">Graph Search</a>. This is a new way to search for people on Facebook according to interests or other types of information, but it’s not long before users work out that it can also be used to unearth <a href="http://actualfacebookgraphsearches.tumblr.com/">controversial information</a>, such as “married people who like prostitutes” and “current employers of people who like racism”.</p>
<h2>The woman who tweeted too much</h2>
<p>In April, the newly updated <a href="http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted">Defamation Act</a> comes into force, but it arrives too late to guide <a href="http://www.telegraph.co.uk/news/uknews/crime/10078119/Court-rules-against-Sally-Bercow-over-her-innocent-face-McAlpine-tweet.html">Sally Bercow</a>. After a BBC Newsnight report suggests that a Thatcher-era politician had abused boys, Bercow tweets, “Why is Lord McAlpine trending? *innocent face*”. It later emerges that McAlpine has been falsely accused and he sues the Speaker’s wife over the tweet. In May, the High Court awards Lord McAlpine significant damages and costs.</p>
<h2>The man who knew too much</h2>
<p>As the <a href="http://www.cps.gov.uk/">Crown Prosecution Service</a> issues its final guidelines <a href="http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/">for social media cases</a>, June explodes with the story of Edward Snowden and <a href="http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data">PRISM</a>, a mass-surveillance programme run by the US <a href="http://www.nsa.gov/">National Security Agency</a> and involving the UK’s intelligence service, GCHQ.</p>
<p>Through PRISM, the NSA has been mining data from Facebook, Google, Apple, Microsoft and Yahoo, among other sources, to spy on users.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=489&fit=crop&dpr=1 600w, https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=489&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=489&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=614&fit=crop&dpr=1 754w, https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=614&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/38311/original/g6gsg9rs-1387480177.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=614&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Enough was enough by mid-2013.</span>
<span class="attribution"><span class="source">ekvidi</span></span>
</figcaption>
</figure>
<p>Its ability to extensively monitor emails, chats, file transfers and social networks leads critics to describe it as <a href="http://www.washingtonpost.com/opinions/nsa-surveillance-may-be-legal--but-its-unconstitutional/2013/06/21/b9ddec20-d44d-11e2-a73e-826d299ff459_story.html">unconstitutional</a>, <a href="http://www.businessweek.com/articles/2013-06-13/rand-paul-recuits-for-class-action-lawsuit-against-nsa">a contravention of the First and Fourth Amendments</a> and a <a href="http://www.ico.org.uk/news/latest_news/2013/ico-responds-to-us-law-enforcement-agencies-access-to-personal-data-07062013?hidecookiesbanner=true">potential violation of the UK’s Data Protection Act</a>.</p>
<h2>The trolls who went too far</h2>
<p>In July, Caroline Criado-Perez successfully campaigns to have a picture of a woman on a British banknote, an accomplishment that inexplicably triggers an explosion of extreme Twitter <a href="http://cass.lancs.ac.uk/?p=621">trolling</a>. <a href="http://www.theguardian.com/uk-news/2013/jul/27/twitter-trolls-threats-bank-notes-austen">Threats of rape and violence</a> escalate into <a href="http://www.dailymail.co.uk/news/article-2384735/Twitter-troll-sends-MP-Stella-Creasy-threat-image-masked-knifeman.html">death</a> and <a href="http://www.bbc.co.uk/news/23565145">bomb threats</a> targeting an increasing number of prominent women, while Twitter comes under severe criticism for reacting to the situation slowly and inadequately.</p>
<p>By August, younger targets of cyberbullying on other sites are emerging, and the suicide of 14-year-old <a href="http://www.bbc.co.uk/news/uk-england-leicestershire-23825049">Hannah Smith</a> prompts <a href="http://www.theguardian.com/society/2013/aug/08/askfm-advertisers-cameron-boycott-cyberbullying">David Cameron to call for a boycott of social networking site ask.fm</a>.</p>
<h2>The kids who needed help</h2>
<p>Throughout September, the NSA furore rumbles on and in October, the privacy debate takes a new turn when Facebook announces <a href="http://newsroom.fb.com/News/737/Teens-Now-Start-With-Friends-Privacy-for-New-Accounts-Adding-the-Option-to-Share-Publicly">changes to its default settings for users between the ages of 13 and 17</a>. Where once information could automatically be viewed by “friends of friends”, it is now only open to immediate friends. </p>
<p>At the same time, however, Facebook also introduces the option for minors to make their photos and posts “public”, a setting previously only available to adult users. </p>
<p>By November, the protection of young people evolves into widespread praise for Google and Microsoft for their public commitment to removing child pornography from their search engines. However, although championed by David Cameron and laudable in its intentions, the likelihood that this will help to deal with the underlying problems <a href="https://theconversation.com/blocks-just-move-child-porn-under-the-counter-20531">remains uncertain</a>.</p>
<h2>The juries who got told off</h2>
<p>In a curious circularity, the year ends as it began: with more legal guidance. This time, UK attorney general Dominic Grieve is <a href="https://twitter.com/AGO_UK">tweeting advice to the public</a> in the hope of stopping legal cases being prejudiced as a result of “trial by internet”. This comes as increasing numbers of social media users find themselves facing charges of <a href="http://www.bbc.co.uk/news/uk-25210867">contempt of court</a> for publishing names of those involved in ongoing criminal cases, unaware that this can be illegal.</p>
<p>Overall, in 2013, social media reared many ugly heads. We’ve come across fictional girlfriends, sexist trolls and cyberbullies. We’ve also been the victims of privacy invasion and contempt of court.</p>
<p>Of course, the internet is not only bad. Indeed, believe it or not, I actually think that it offers far more good. But the events of this year do suggest that this relatively young medium is far from establishing the kinds of social and criminal boundaries that we tend to take for granted offline. We can only wonder whether we’ll learn to play by the emerging rules in 2014 or, indeed, whether those rules make any sense.</p><img src="https://counter.theconversation.com/content/21251/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Hardaker receives funding from the ESRC, grant ref: ES/L008874/1, title: "Twitter rape threats and the discourse of online misogyny".</span></em></p>It was an extraordinary year for social media. We saw sites such as Twitter shift from being a fun pastime to a fundamental part of life. The change might not have been unexpected but each time a new incident…Claire Hardaker, Lecturer in Corpus Linguistics, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/216562013-12-19T14:53:48Z2013-12-19T14:53:48ZWhite House stalls as report condemns NSA surveillance<figure><img src="https://images.theconversation.com/files/38294/original/8gxzrb9p-1387456059.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Yes we scan!' NSA monitoring will be a Christmas headache for Barack Obama.</span> <span class="attribution"><span class="source">Mike Herbst</span></span></figcaption></figure><p>Even before opening his stocking on Christmas morning, Barack Obama has his holiday reading cut out for him. His <a href="http://justsecurity.org/wp-content/uploads/2013/12/2013-12-12_rg_final_report.pdf">Review Group on Intelligence and Surveillance Technologies</a> has handed him a 300-page report, with 46 recommendations that he and his advisers will be under pressure to address as soon as possible.</p>
<p>The report’s recommendations could, if implemented, have a major impact on US intelligence’s ability to collect civilian data, and would mean that certain kinds of collection (such as spying on foreign leaders) would have to be cleared at a higher level than is currently required. The White House is so far hedging its response to the report, with spokesman Jay Carney describing it as “<a href="http://www.theguardian.com/world/2013/dec/18/nsa-bulk-collection-phone-date-obama-review-panel">extremely dense and substantive</a>”, but there is no doubt it is a direct response to the Snowden revelations – and that its recommendations take a sweeping approach to the question of privacy and surveillance.</p>
<p>This is evident in the two guiding principles the report lays out early on: first, “The United States Government must protect, at once, two different forms of security: national security and personal privacy”; and second, “The central task is one of risk management; multiple risks are involved, and all of them must be considered”. </p>
<p>With these two principles, the group gave itself an imperative to move beyond an approach to counter-terrorism that pitches security against liberty – a call for innovation in the ways we reconcile privacy interests with security-related risk management.</p>
<h2>Reform proposals</h2>
<p>To that end, the task force proposes various institutional and legal reforms that might provide a mechanism to bring the NSA under constitutional control while still affording it latitude to act for bona fide security reasons. One proposal in particular neatly encapsulate the commitment to a more textured approach to the relationship between security and privacy.</p>
<p>With respect to domestic surveillance, the group raises concerns about NSA collection of metadata for civil liberties including privacy. The solution proposed is not that metadata would not be collected, but rather that this would be done by a private third party (currently thought most likely to be the telecommunications companies), with the state able to access it where security concerns demand. Perceiving this to be less risky from a privacy perspective, the report places significant faith in the ability to properly restrict government access to such privately-held information.</p>
<p>For those familiar with data retention policies in the EU, this scheme is very reminiscent of the EU Data Retention Directive, which has proved hugely controversial. Just last week, the EU advocate general, Cruz Villalón, recommended that the Data Retention Directive <a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-12/cp130157en.pdf">be struck down</a>. He was of the opinion that obliging telecommunications companies to retain data on personal communications seriously interferes with the right to privacy. Of particular concern was the fact that the directive does not adequately restrict governments’ access to such information and sets the maximum retention period at two years – which he considered to be disproportionate.</p>
<p>While the judgment of the court is yet to come, the <a href="http://secile.eu/data-retention-in-europe-case-study/">long-running saga</a> of the Data Retention Directive should serve as a salutary tale of the importance of reasonable retention periods and strict limitations on access to data.</p>
<p>When it comes to surveillance of non-US nationals, one of the most interesting proposals is for institutional reform of the FISC—the <a href="http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html">Foreign Intelligence Surveillance Court</a>. The group recommends the establishment of a Public Interest Advocate for the court, recognising that, as it currently operates, the FISC is not presented with legal arguments in an adversarial procedure. Rather, it is required to decide often quite complex questions of law without the benefit of numerous advocates working through the legal argumentation. </p>
<p>Where these kinds of questions arise, the report acknowledges: “an adversary presentation of the competing arguments is likely to result in a better decision”. The Public Interest Advocate as proposed would have the task of “represent[ing] the interests of those whose rights of privacy or civil liberties might be at stake” and would appear in a case at the invitation of the judge.</p>
<h2>Security versus liberty</h2>
<p>Whenever we try to impose a process that would limit surveillance powers, the major challenge is how to make that process sufficiently rigorous without compromising security. It is not operationally reasonable to expect that where a government agency considers someone to be a sufficient threat to propose spying on them, the suspect ought to be able to appear in court and argue the case against such measures. This is not because there are no legitimate privacy arguments to be made, but rather because if they are a terrorist such advance notice would severely compromise the security operation itself.</p>
<p>In the UK we have so far tried to manage this tension in judicial proceedings by using <a href="http://www.barristermagazine.com/archivedsite/articles/issue22/metcalfe.htm">Special Advocates</a>; something similar operates in Guantánamo Bay. But the Public Interest Advocate as proposed allows for civil liberties concerns to be argued in full and in an adversarial process, even when the proposed target of surveillance is unaware of the proceedings. Assuming it operates effectively, the Public Interest Advocate would seem to offer a neat <em>ex ante</em> mechanism to ensure that all perspectives have already been taken into account when the decision about surveillance is taken.</p>
<p>The report as a whole makes for interesting reading, not least because of its insistence on going beyond an oppositional approach to security and liberty. This significantly advances the operational and political debate in a way that researchers in the field have sought for quite some time. Whether the report will lead to meaningful reform is questionable, but its approach is certainly to be commended.</p><img src="https://counter.theconversation.com/content/21656/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona de Londras is the Project Co-Ordinator of SECILE (Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness), a project that has received funding from the European Union Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 313195.</span></em></p>Even before opening his stocking on Christmas morning, Barack Obama has his holiday reading cut out for him. His Review Group on Intelligence and Surveillance Technologies has handed him a 300-page report…Fiona de Londras, Professor of Law and Co-Director of Durham Human Rights Centre, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/214482013-12-13T14:45:02Z2013-12-13T14:45:02ZThe UK government is working in a Snowden-free bubble<figure><img src="https://images.theconversation.com/files/37781/original/m3yqkbq5-1386945241.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Like butter wouldn't melt: Francis Maude thinks we're doing pretty well on cybersecurity.</span> <span class="attribution"><span class="source">Cabinet Office</span></span></figcaption></figure><p>Anyone who took the time to read the UK government’s latest <a href="https://www.gov.uk/government/speeches/uk-cyber-security-strategy-statement-on-progress-2-years-on">update</a> on its cybersecurity strategy could be forgiven for thinking that a man called Edward Snowden never existed.</p>
<p>Most people who are even slightly plugged in to the world around them would agree, however, that we live in decidedly more interesting times for internet security and privacy than the document would have us believe. Not a day seems to have gone by since the summer without a new revelation of activities by the NSA or GCHQ that have gone just a little further than what most people find acceptable.</p>
<p>Brazil, the EU, and many individual European countries have made serious objections, as have <a href="http://www.theguardian.com/world/2013/dec/09/internet-companies-demand-spying-overhaul-after-nsa-revelations-live-reaction">tech companies</a> and a <a href="http://www.change.org/petitions/a-stand-for-democracy-in-the-digital-age-3">group of 500 prominent writers, artists and academics</a>.</p>
<p>In fact, the only place where you won’t see the NSA affair taking centre stage is in communications from the UK government.</p>
<p>This latest update brings us up to speed on the progress made towards <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265384/Progress_Against_the_Objectives_of_the_National_Cyber_Security_Strategy_December_2013.pdf">the objectives</a> and the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265386/The_National_Cyber_Security_Strategy_Our_Forward_Plans_December_2013.pdf">forward plans</a> relating to the cybersecurity strategy that was published two years ago. Yet neither appear to have been affected by the Snowden crisis. There is not the slightest mention of his name in either document. This may not surprise the cynics but it is highly inadequate.</p>
<h2>Bad for business</h2>
<p>The very first objective in the original strategy was to make the UK “one of the most secure places in the world to do business in cyberspace”. The Snowden affair has profoundly affected this goal.</p>
<p>At the heart of cybersecurity, as far as businesses are concerned, is the ability to guarantee the confidentiality of sensitive data. Presumably, international companies which operate in competition with UK rivals do not expect to be sharing their business data with GCHQ. Snowden teaches us that they should.</p>
<p><a href="http://business.time.com/2013/12/10/nsa-spying-scandal-could-cost-u-s-tech-giants-billions/">US tech companies are already feared to be losing billions</a> due to the NSA surveillance scandal. The UK hosts fewer such companies but the changed perception of the confidentiality of communications could still risk significant economic losses here. The legal sector is already <a href="http://www.legalfutures.co.uk/latest-news/government-surveillance-threatens-law-firms-cloud-data-security-regulator-warns">worried about confidentiality of merger negotiations</a>.</p>
<h2>Undermining the infrastructure</h2>
<p>It has also been alleged that the NSA and GCHQ have been involved in building back doors into commercially available encryption software and standards in order to gain access to encrypted data. <a href="http://www.theguardian.com/technology/2013/sep/16/nsa-gchq-undermine-internet-security">Security researchers have pointed out</a> that this undermines the very cyber infrastructure that GCHQ is supposed to be protecting.</p>
<p>If the agency introduces deliberate weaknesses to gain covert access to information, those weaknesses can equally be sniffed out and exploited by cyber criminals and other third parties. This point was also <a href="http://www.bbc.co.uk/news/uk-24844427">made quite forcefully by Sir Tim Berners-Lee</a>. Obviously, undermining the infrastructure also runs contrary to “making the UK more resilient to cyber attack”, another objective identified in the original strategy.</p>
<h2>Above scrutiny?</h2>
<p>Another objective originally identified is “protecting our interests in cyberspace”, the execution of which has been mostly delegated to GCHQ. The government thus avoids having to report back on progress in any great detail since the information is classified. Nevertheless, we are assured that a report has been made on the matter to the Intelligence and Security Committee.</p>
<p>Here too, the government appears oblivious to the fact that the public has almost entirely lost confidence in the adequacy of information-sharing and challenge in that particular oversight relation. It claims to want to “ensure broad understanding within the UK of the government’s approach” but this is hard to defend if the workings of GCHQ are only revealed to and understood by tiny subgroups of government and parliament.</p>
<p>Even <a href="http://www.theguardian.com/uk-news/2013/oct/06/cabinet-gchq-surveillance-spying-huhne">a past Cabinet minister</a> on the National Security Council and parliamentarians with relevant responsibilities have already claimed that they had been insufficiently informed of GCHQ’s activities, so what hope for the rest of us?</p>
<h2>An open society</h2>
<p>However, the government scores its lowest marks for progress made towards objective three in its original strategy. Two years ago, it planned to play a part in creating an “open” and “vibrant” cyberspace “which the UK public can use safely and that
supports open societies”. The lack of transparency and accountability of GCHQ’s operations, even to Westminster, runs very much counter to this ideal.</p>
<p>The UK takes pride in its role in promoting democracy and human rights across the world and yet the Snowden affair has led to so much damage that <a href="http://www.amnesty.org.uk/press-releases/amnesty-international-brings-claim-against-uk-over-gchq-surveillance">Amnesty International</a> has felt the need to lodge a complaint to the Investigatory Powers Tribunal because it thinks its sensitive communications have probably been intercepted.</p>
<h2>International cyber-waters</h2>
<p>As a positive achievement, the progress report mentions agreements to make international law apply in cyberspace. But even this will be fraught with difficulties as a result of the Snowden affair. International law should be equal to all, and this does not sit easily with the collaboration that is thriving between GCHQ and the NSA. The NSA is regulated in a way that is strongly biased against non-US citizens and many other governments seem to be alive to that, even if the UK isn’t. </p>
<p>All in all, Snowden’s revelations have significantly changed many people’s perceptions of the role the UK government actually plays in cyberspace. The government’s progress report does not appear to take this into account at all.</p>
<p>The UK government may choose to believe that none of Snowden’s files prove to be true, or that all the activities reported in them are fully justifiable. But even if that were the case, public reaction to these stories is a reality that needs to be confronted. The UK government cannot afford to be in denial about the relevance of the Snowden files and certainly not about the impact that they have had on business and society, at home and abroad.</p><img src="https://counter.theconversation.com/content/21448/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eerke Boiten is a senior lecturer in the School of Computing at the University of Kent, and Director of the University's interdisciplinary Centre for Cyber Security Research. He receives funding from EPSRC for the CryptoForma Network of Excellence on Cryptography and Formal Methods. </span></em></p>Anyone who took the time to read the UK government’s latest update on its cybersecurity strategy could be forgiven for thinking that a man called Edward Snowden never existed. Most people who are even…Eerke Boiten, Senior Lecturer, School of Computing and Director of Interdisciplinary Cyber Security Centre, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/207752013-12-11T19:42:04Z2013-12-11T19:42:04ZThe internet after Snowden: what now?<figure><img src="https://images.theconversation.com/files/36122/original/twszj2zf-1385438002.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What are the implications for democracy if our greatest communication tool - the internet - is turned on the citizenry and used for surveillance?</span> <span class="attribution"><span class="source">EPA/Jim Lo Scalzo</span></span></figcaption></figure><p>Since June, thanks to the information disclosed by National Security Agency (NSA) whistleblower <a href="http://www.theguardian.com/world/the-nsa-files">Edward Snowden</a>, a troubling truth has come to light. The internet, and with it the entire gamut of new communication technologies, have become the centrepiece of a gigantic, secret and complex system of mass surveillance used by governments to spy on citizens, on allies and enemies.</p>
<p>The Snowden files are quite revealing of the shifting role of communication technologies in democratic societies: from a much-talked-about technology of freedom to one of surveillance.</p>
<p><a href="http://www.nrc.nl/nieuws/2013/11/23/nsa-infected-50000-computer-networks-with-malicious-software/">Evidence shows</a> that American intelligence agents are using hackers’ tools to infect users’ machines and acquire the information they need. Reportedly, the NSA has used specifically designed malware to <a href="http://www.bbc.co.uk/news/technology-25087627">infect more than 50,000 computer networks</a> worldwide to steal sensitive information.</p>
<p>One of Snowden’s <a href="http://www.nytimes.com/interactive/2013/11/23/us/politics/23nsa-sigint-strategy-document.html?_r=0">leaks</a> is a NSA memo named “SIGINT [Signals Intelligence] Strategy 2012-2016”. It shows that the agency’s priority for the future is to “aggressively pursue legal authorities and a policy framework mapped more fully to the information age” in order to be able to track the online activities of “anyone, anywhere, anytime”.</p>
<p>More worryingly, according to other documents leaked by Snowden, the NSA is able to collect data each day from “between 30 million and 50 million unique internet provider addresses”. This is real-time data that provides the agency with crucial information to name, localise and map the movements of the owner of the device connected to any of those IP addresses. </p>
<p>Showing a certain penchant for irony, the NSA calls the program the <a href="http://nation.time.com/2013/11/23/new-document-shows-nsa-wanted-more-more-more-power/">“Treasure Map”</a>.</p>
<h2>Have we gone too far?</h2>
<p>Ideally, democratic power should always be accountable and open to scrutiny. But the secretiveness and pervasiveness of the many surveillance systems that surround us (both at state and corporate level, within and across borders) shatter the idyllic image of democracy we have cultivated for decades. </p>
<p>These highly complex systems literally disintegrate the spatial and geographical unity of people into streams of rights-less digital bits of data. No democratic system can survive and thrive in this context.</p>
<p>It is worth pondering whether or not we have gone too far in our quest to become a fully functional technological society. This is a quest that carries with it a great danger of displacement: technology evolves, but society – that is, both the institutions that constitute it and the people that live within it – seem to lag dangerously behind.</p>
<p>Our lives are continuously and necessarily immersed in a cacophony of data streams that are essential to our way of life, even though most of this data is beyond our ability to make sense of or even being aware of it.</p>
<h2>The road ahead</h2>
<p>The solution to this problem is very complex and cannot be handled by one body. It must be both a national and an international effort: an open process involving all stakeholders.</p>
<p>Laws must be rewritten to define adequate safeguards for users and restrain the excessive legal powers with which many governments can request to access to their citizens’ data. </p>
<p>In the latest edition of the <a href="http://thewebindex.org/data/index/">Web Index</a>, a report published annually by the <a href="http://www.w3.org/">World Wide Web Consortium</a>, only five countries out of 81 surveyed were found to follow:</p>
<blockquote>
<p>…best practice standards for privacy of electronic communications, meaning both an order from an independent court and substantive justification must be provided before law enforcement or intelligence agencies can intercept electronic communications. </p>
</blockquote>
<p>Australia, the UK and the US were not among those five.</p>
<p>Whistleblowers’ role in our increasingly complex and secretive society has become of great importance. And yet, we still attach to them a certain stigma. We often call them <a href="http://swampland.time.com/2013/10/28/dick-cheney-calls-snowden-a-traitor-defends-nsa/">traitors</a>. In these troubled times this is the wrong approach. As Tim Berners-Lee, the inventor of the world wide web, <a href="http://www.theguardian.com/technology/2013/nov/22/tim-berners-lee-online-surveillance-internet-wikipedia-encrypting-spying">put it</a>:</p>
<blockquote>
<p>…at the end of the day when systems for checks and balances break down we have to rely on the whistleblowers – [hence] we must protect them and respect them.</p>
</blockquote>
<p>Parliamentary oversight has proven itself inadequate to protect citizens’ privacy in a growingly complex information society. Many politicians have no idea how the internet <a href="http://www.nybooks.com/articles/archives/2013/nov/21/snowden-leaks-and-public/">works</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/36126/original/3yd8zsjy-1385439278.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tim Berners-Lee, director of the World Wide Web Consortium. The consortium is shedding light on countries’ spying practices.</span>
<span class="attribution"><span class="source">AAP/Paul Miller</span></span>
</figcaption>
</figure>
<h2>The shape of things to come</h2>
<p>We need to devise new mechanisms to control the controllers. We need to properly employ and empower the online community as a watchdog over the integrity of the system.</p>
<p>IT companies should create external non-partisan ethical committees to oversee some of their policies and assess the real efficacy of their encryption protocols. For instance, bodies like the Worldwide Internet Consortium or the Internet Engineering Task Force <a href="https://www.ietf.org/">(IETF)</a> should be an integral part of this process. </p>
<p>Parliaments should also make extensive use of crowdsourcing to craft important pieces of legislation concerning the internet. Brazil has proven to be a step ahead of many with its <a href="http://direitorio.fgv.br/civilrightsframeworkforinternet">Bill of Rights for the Internet</a> (<em>Marco Civil da Internet</em>). Admittedly, the process has not been without hiccups and the text of the proposed law is still <a href="https://www.eff.org/deeplinks/2012/11/brazilian-internet-bill-threatens-freedom-expression">far from perfect</a>.</p>
<p>Changing the trajectory of our future is crucial. If not adequately dealt with, the NSA’s pervasive system of mass surveillance may well represent the shape of things to come. It will be a 21st century society of control, where the sophisticated exercise of power will be invisible to most of us, and all we will be left with is a quasi-phantom version of the democratic life we thought we knew.</p><img src="https://counter.theconversation.com/content/20775/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giovanni Navarria does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since June, thanks to the information disclosed by National Security Agency (NSA) whistleblower Edward Snowden, a troubling truth has come to light. The internet, and with it the entire gamut of new communication…Giovanni Navarria, Post-Doctoral Fellow - Institute for Democracy and Human Rights, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/213502013-12-11T06:25:12Z2013-12-11T06:25:12ZA digital rights bill means nothing without basic state compliance<figure><img src="https://images.theconversation.com/files/37364/original/qrrr9y32-1386704624.jpg?ixlib=rb-1.1.0&rect=9%2C64%2C2038%2C1272&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The backlash against state surveillance is growing stronger by the day.</span> <span class="attribution"><span class="source">ubiquit</span></span></figcaption></figure><p>More than 500 high-profile names, including authors, musicians and five Nobel laureates, have signed a <a href="http://www.change.org/petitions/a-stand-for-democracy-in-the-digital-age-3">petition</a> to the United Nations calling for a bill of digital rights to be developed in the wake of this year’s revelations about state surveillance. </p>
<p>The petition, signed by Margaret Atwood, Tom Stoppard and Günter Grass, among others, condemns the mass surveillance that has been revealed over the last few months, starting with the NSA secrets <a href="http://www.theguardian.com/world/the-nsa-files">revealed by whistleblower Edward Snowden</a>. Titled A Stand for Democracy in a Digital Age, the petition says mass surveillance is an affront on human rights and treats every citizen as a suspect.</p>
<p>Down the road, it seems likely that Snowden’s revelations will be seen as the tipping point in the digital human rights debate.</p>
<h2>A question of rights</h2>
<p>This is about so much more than privacy. The petition implicitly recognises privacy as a necessary component to the exercise of the right to freedom of expression and assembly. “A person under surveillance is no longer free; a society under surveillance is no longer a democracy,” it states, alluding to what I would argue are the core objectives of all human rights (and on this, I admit, there is no consensus): human dignity and autonomy.</p>
<p>While surveillance is receiving a significant amount of attention at the moment, many of us who work in this area know that discussions about digital rights have been going on for some time.</p>
<p>The <a href="http://internetrightsandprinciples.org/site/">Internet Rights and Principles Charter</a> in particular has been an important step. This concludes that the current human rights framework is sound but that we need to articulate what we mean by human rights in the internet environment. Drawing from the UN International Bill of Human Rights, the IRP Charter explains, amongst other things, that states must enact laws to protect the privacy and data of their citizens, which should include the protection of personal data, the right to anonymity and freedom from surveillance.</p>
<p>A lot of the questions remain unanswered and they are both fundamental and legal in nature. We need to think about whether a binding charter is needed or whether we simply need to clarify the meaning of rights in the digital age.</p>
<h2>The private sector in your private life</h2>
<p>The petition also calls for respect of human rights by both states and corporations. This challenges the legal model of human rights, which historically has focused on the relationship between citizens and the state.</p>
<p>The role of businesses in respecting human rights has been articulated in the <a href="http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf">UN Guiding Principles</a> but the responsibilities they describe are still largely extra-legal in nature. One of the problems revealed in the wake of the Snowden affair has been the pressure put on businesses to <a href="http://www.theregister.co.uk/2013/11/01/bt_vodafone_verizon_gchq_undersea_fiber/">facilitate the surveillance of citizens</a>. It has not been clear if companies have been complicit in the spying or if they were pressured into supplying information to governments but it is clear that saying businesses should respect human rights is far from a straightforward proposition in this day and age.</p>
<p>In this respect, a formal charter would have its advantages. It would bind states to ensure these rights are protected in their countries, which would include infringements by businesses. It might be argued that this already exists in our current human rights system, but that states are simply failing in their obligations to protect our rights. And quite frankly, when states are at once the protector of our rights and the very ones abusing them, the limitations of the legal system as it currently exists become alarmingly clear.</p>
<p>Perhaps the problem here is not a lack of law, but the failure of states to comply with what the right to privacy already entails. This means the role of the public in the human rights system cannot be underestimated. Groups such as the one that has emerged behind this petition are vital if we are to continue to push governments into respecting our existing freedoms. </p>
<h2>Our right to be forgotten</h2>
<p>There are other sticking points in the vision set out in the petition, though. What these campaigners seek is not only freedom from surveillance, but necessarily a right to be forgotten once our data has been collected.</p>
<p>The right to be forgotten, at its most basic level, means a right to control the information that is available about you on the internet, usually through a process of deletion. This is harder than it seems. There are unanswered questions about what happens to data that relates to more than one citizen, what actually qualifies as personal data and who owns data about you. The issue is currently subject to a <a href="http://www.change.org/petitions/a-stand-for-democracy-in-the-digital-age-3">turbulent debate</a> in Europe and the thought of scaling any resulting policy up to a global level poses an even greater challenge.</p>
<p>It will be equally difficult to reach an international consensus on the right to anonymity or pseudonymity. Rights of anonymity are more entrenched in American consciousness than in Europe and there is a very fine line between using anonymity to enable free speech and using it to facilitate hate. Anonymity allows us to be part of online groups that can support self-exploration or help us to circumvent oppressive state censorship in a way that would be impossible if you were forced to reveal your identity. But at the same time, to say that we have a right to anonymous speech ignores the devastating impact of hate speech and bullying endured by the victims of such speech. Nevertheless, we need to have this debate if we are to have a bill of digital rights.</p>
<p>The petition is a welcome formalisation of the public’s anger and feelings of violation upon learning of the programme of mass surveillance carried out by states. The call for scrutiny by the UN is also welcome. A proposal for a bill of digital rights, however, is not necessarily a realistic cause.</p><img src="https://counter.theconversation.com/content/21350/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emilly Laidlaw is a member of the Management Committee for and a researcher for the Centre for Creativity, Regulation, Enterprise and Technology (CREATe).</span></em></p>More than 500 high-profile names, including authors, musicians and five Nobel laureates, have signed a petition to the United Nations calling for a bill of digital rights to be developed in the wake of…Emily Laidlaw, Lecturer in information technology, intellectual property and media law, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/211122013-12-10T19:52:44Z2013-12-10T19:52:44ZIntelligence oversight and accountability: who watches the watchers?<figure><img src="https://images.theconversation.com/files/37164/original/dgv94bjn-1386466964.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Recent revelations of Australia's intelligence practices have brought oversight issues into sharp focus. What mechanisms are there to hold these agencies to account?</span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>The recent revelations of alleged <a href="http://www.abc.net.au/news/2013-11-18/australia-spied-on-indonesian-president-leaked-documents-reveal/5098860">telephone interception of Indonesian politicians</a>, <a href="http://www.smh.com.au/national/east-timor-seeks-to-sink-sea-treaty-over-spy-claims-20130503-2iyrt.html">espionage in East Timor</a> and <a href="http://www.smh.com.au/federal-politics/political-news/asio-raids-office-of-lawyer-bernard-collaery-over-east-timor-spy-claim-20131203-2yoxq.html">raids in Canberra</a> have raised more questions than they have answered about Australia’s intelligence activities.</p>
<p>Even though these examples are legal under Australian legislation, many people are left wondering how such actions relate to national security, how they can be in the national interest, and how Australia could end up in this situation. </p>
<p>One of the issues is that successive governments have failed to educate the public about the roles of the <a href="http://www.igis.gov.au/aic/">Australian Intelligence Community</a> (AIC), let alone the legislation, oversight and accountability mechanisms that guide their activities. So, how did Australia end up with its current system, and how does it work today?</p>
<h2>History</h2>
<p>The AIC emerged from the organisations created to fight World War Two. These organisations, employing human, signals, imagery and other technical intelligence collection methods, are widely accepted as having helped shorten the war considerably. Successive Australian governments have been so convinced by their utility and value that they have signed up to their maintenance and expansion over nearly 70 years.</p>
<p>During that period, a range of controversies triggered reform initiatives. The <a href="http://www.abc.net.au/archives/80days/stories/2012/01/19/3411302.htm">defection</a> of KGB spies Vladimir and Evdokia Petrov to Australia in 1954 triggered the <a href="http://www.naa.gov.au/collection/fact-sheets/fs130.aspx">Royal Commission on Espionage</a>, which brought the <a href="http://www.asio.gov.au/">Australian Security Intelligence Organisation</a> (ASIO) into public consciousness. The <a href="http://www.austlii.edu.au/au/legis/cth/num_act/asioa19561131956506/">ASIO Act 1956</a> emerged as a result and provided the first legal framework for ASIO’s activities. </p>
<p>Concerned about ASIO’s practices against Vietnam War protesters and “subversives”, the Whitlam government established the <a href="http://www.naa.gov.au/collection/explore/security/royal-commisson/">Royal Commission on Intelligence and Security</a> (RCIS) in 1974 to investigate ASIO and the intelligence community more broadly. In 1977, the RCIS also recommended additional legislation to cover the actions of ASIO regarding telecommunications interception. </p>
<p>The RCIS also saw ASIO’s sister agency, the <a href="http://www.asis.gov.au/">Australian Secret Intelligence Service</a> (ASIS), come out from the shadows. Following ASIS’s <a href="http://www.naa.gov.au/collection/explore/cabinet/by-year/1984-85/hope-royal-commission.aspx">bungled training exercise</a> at the Sheraton Hotel in Melbourne in 1983, the Hawke government called for a follow-on Royal Commission on Australia’s Security and Intelligence Agencies (RCASIA), which then prompted further reforms.</p>
<p>Prior to the RCIS and the RCASIA, there was little accountability beyond the discretion exercised by government ministers. Intelligence agencies had great latitude in conducting their work. The royal commissions generated significant oversight mechanisms for the AIC. </p>
<p>The reviews by <a href="http://www.dpmc.gov.au/publications/intelligence_inquiry/">Philip Flood</a> following the Iraq War and <a href="http://www.dpmc.gov.au/PUBLICATIONS/iric/index.cfm">Robert Cornall and Rufus Black</a> in 2011 validated many of the reforms and accountability mechanisms in place since the 1970s and 1980s and prompted refinements. Throughout this period, the AIC worked on a strict “need to know” principle, with secrets kept to a small circle in order to minimise leaks or inadvertent disclosure.</p>
<h2>The September 11 turning point</h2>
<p>But this all changed following the September 11 terrorist attacks. Investigations in the US indicated that information was known in different pockets of the US intelligence community but had not been put together. Had they been shared, perhaps something could have been done to pre-empt the attacks. </p>
<p>This realisation led to a dramatic shift from the “need to know” to the “need to share” – a principle that was also implemented in Australia. What we are witnessing now, however, with both the revelations from <a href="http://wikileaks.org/">WikiLeaks</a> and <a href="http://www.theguardian.com/world/the-nsa-files">Edward Snowden</a>, is the end of the “need to share” era. Shared information is having negative repercussions when shared too widely. Governments will seek to avoid further such incidents.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=393&fit=crop&dpr=1 600w, https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=393&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=393&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=494&fit=crop&dpr=1 754w, https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=494&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/37163/original/fr7bz6zh-1386466690.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=494&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Disclosures by Julian Assange’s WikiLeaks and Edward Snowden may mark the end of the ‘need to share’ era of intelligence.</span>
<span class="attribution"><span class="source">EPA/Facundo Arrizabalaga</span></span>
</figcaption>
</figure>
<p>The hopes of civil libertarians that these revelations would lead to greater openness are probably misplaced. The opposite is more likely to be the case. Fear of disclosure, severe embarrassment and exposure to ridicule and persecution is eroding the trust and confidence many had in their “watertight” and “secure” systems.</p>
<p>The challenge for intelligence agencies in a democracy like Australia is in balancing their work while maintaining public and bipartisan political support. This is difficult, especially if the agencies are not at liberty to engage with the public. That means accountability mechanisms have had to be devised that provide politicians and the public with sufficient confidence that the AIC is not acting in a vacuum or in a foolhardy manner.</p>
<h2>Who watches the watchers?</h2>
<p>Today, we have four key institutional mechanisms to hold the AIC to account. One is the <a href="http://www.ona.gov.au/">Office of National Assessments</a> (ONA) – responsible for managing intelligence priorities and assessments. </p>
<p>With guidance from ONA and the broader AIC, the <a href="http://www.directory.gov.au/directory?ea0_lf99_120.&organizationalUnit&e3c454c6-f964-4da6-ab46-2f4ece27fc25">National Security Committee</a> of Cabinet sets intelligence collection priorities. </p>
<p>A third oversight body is the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjcis/index.htm">Parliamentary Joint Committee on Intelligence and Security</a> (PJCIS), which has oversight of the AIC’s administration and budgets.</p>
<p>Finally, the <a href="http://www.igis.gov.au/">Inspector-General of Intelligence and Security</a> (IGIS), Dr Vivienne Thom, is in the pivotal position to manage the accountability mechanisms along with her staff. With the enduring power of a royal commissioner, the IGIS has full access to the AIC’s records. </p>
<p>The IGIS is tasked with providing reassurance that the AIC is performing within the bounds of the law. The public, the AIC and the government require that reassurance now more than ever. Without it, there will likely be a further loss of trust in those agencies, even though they perform an important national function.</p>
<p>The <a href="http://www.dpmc.gov.au/national_security/">National Security Advisor</a> (Dr Margot McCarthy) also has a co-ordinating role to play with the AIC and is a key conduit for national security advice to the prime minister.</p>
<p>Combined, these arrangements place the AIC as one of the most accountable in the Western world in terms of oversight and responsiveness to audit and inquiry.</p>
<p>Many would like to know more, and the revelations from Snowden, WikiLeaks and beyond would suggest that those concerns are valid. Yet MPs and successive royal commissioners and reviewers have all come to the conclusion that the activities permitted under legislation are in the national interest and warrant remaining protected and kept secret.</p>
<h2>Legislative cover for the AIC</h2>
<p>The AIC, especially the collection agencies – ASIO, ASIS, the <a href="http://www.asd.gov.au/">Australian Signals Directorate</a> (ASD) and the <a href="http://www.defence.gov.au/digo/">Australian Geospatial-Intelligence Organisation</a> (AGO) – is given a broad remit to collect information that will assist Australian interests. </p>
<p>Some of this is about protecting national security, but equally it is about national advantage and national interests. Inevitably, the public receive only a portion of the picture. Therefore, assessing whether one particular item is in the national interest or to the national advantage is impossible to gauge without knowledge of the full range of factors considered within the AIC and by their ministers.</p>
<p>The <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/isa2001216/">Intelligence Services Act 2001</a> provides the legislative basis for ASIS and ASD. ASIS’ website <a href="http://www.asis.gov.au/about-us/Overview.html">states clearly</a> that:</p>
<blockquote>
<p>ASIS’s primary goal is to obtain and distribute secret intelligence about the capabilities, intentions and activities of individuals or organisations outside Australia, which may impact on Australia’s interests and the well-being of its citizens. </p>
</blockquote>
<p>It goes further and clarifies that:</p>
<blockquote>
<p>Our work can involve collecting intelligence relating to national defence, international relations and economic issues.</p>
</blockquote>
<p>As per the same act, the ASD’s website <a href="http://www.asd.gov.au/governance/legislation.htm">outlines the functions</a> of the agency to:</p>
<blockquote>
<p>…obtain signals intelligence about the capabilities, intentions or activities of people or organisations outside of Australia.</p>
</blockquote>
<p>In addition to national security (terrorism, counter proliferation, and transnational security), the AIC collection agencies look for material that the Australian government can use – if it so chooses – to the nation’s advantage. </p>
<p>Elected ministers are tasked with making the decisions. And in doing so, they are required to weigh up the risks and benefits – and the risk can be as serious as harming Australia’s relations, or the safety of its people and intelligence personnel. These decisions are not made lightly.</p>
<p>The legislation, governance and accountability mechanisms are clearly outlined on each of the agencies’ websites. We have ASIO to protect Australian interests, whether that be national security or otherwise, and to stop, deter, or monitor other countries (or groups) from collecting covert information about Australia for their own national interests (including economic interests), hacking Australian government computers – or even, reportedly, <a href="http://www.smh.com.au/federal-politics/political-news/espionage-fears-at-csiro-20131203-2youq.html">industrial espionage</a> at the CSIRO.</p>
<p>Likewise, we have agencies such as ASIS to do what they can – within the broad parameters of the legislation – to obtain information from other nations that Australia can use to its advantage. They exist for valid reasons. We should be conscious of the fact that if the reports of Australia’s spying and espionage activities are accurate, some additional accountability mechanisms may be called for. </p>
<p>But we should be very careful not to deny Australia the information long considered essential to the maintenance of the security and prosperity of the nation.</p><img src="https://counter.theconversation.com/content/21112/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Blaxland is co-author with Professor David Horner of the multi-volume official history of ASIO being undertaken at the Australian National University. Horner's volume is due to be published in 2014.</span></em></p><p class="fine-print"><em><span>Rhys Crawley is the researcher for the multi-volume Official History of the Australian Security Intelligence Organisation being undertaken at the Australian National University. </span></em></p>The recent revelations of alleged telephone interception of Indonesian politicians, espionage in East Timor and raids in Canberra have raised more questions than they have answered about Australia’s intelligence…John Blaxland, Senior Fellow, Strategic and Defence Studies Centre, Australian National UniversityRhys Crawley, Postdoctoral Fellow, Strategic and Defence Studies Centre, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/211292013-12-04T16:23:31Z2013-12-04T16:23:31ZAlan Rusbridger evokes First Amendment to backward UK<figure><img src="https://images.theconversation.com/files/36936/original/6j3rhmhs-1386166349.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Guardian editor Alan Rusbridger shows the UK's legal system for what it really is.</span> <span class="attribution"><span class="source">internaz</span></span></figcaption></figure><p>Guardian editor Alan Rusbridger’s <a href="http://www.theguardian.com/world/2013/dec/03/guardian-not-intimidated-nsa-leaks-alan-rusbridger-surveillance">appearance</a> at the House of Commons Home Affairs Committee this week has proved revelatory in more than one sense of the word.</p>
<p>We have heard about the events surrounding the Guardian’s battle with the UK government over its decision to publish the NSA files leaked by Edward Snowden and we have seen the newspapers paint very different pictures of what went on at the committee. But most importantly, we have been given the chance to reflect on the UK’s approach to handling national security and freedom of speech.</p>
<h2>What the papers said</h2>
<p>Responses to the showdown have been divided along political lines, as indeed was the tenor, gentility and hostility of the questions that came from the cross-party group of MPs on the committee.</p>
<p>On the right, The Daily Mail, shrieked about Rusbridger’s protestations that the people working on the story <a href="http://www.dailymail.co.uk/news/article-2517561/Alan-Rusbridger-says-love-Britain-defends-Snowden-leaks.html">“love” Britain</a>. On the left, Rusbridger’s friend and City University Professor Roy Greenslade swooned over the way Rusbridger <a href="http://www.theguardian.com/media/2013/dec/03/alan-rusbridger-batted-away-mps-bluster">“batted away MPs’ bluster without raising a sweat”</a>.</p>
<p>Media squawking aside, Rusbridger made an authoritative impression at the Leveson Inquiry and has done so again in his evidence to MPs. In quiet and subtle terms, he is neither a lapdog for <a href="http://hackinginquiry.org/">Hacked Off</a> and the Media Standards Trust, nor a warrior for the devil-may-care global Wikileakers who perceive multinational corporations and nation states as 21st century dystopian Beelzebubs. In a confusing, ambiguous, and paradoxical world he has his eye, mind and heart focused on some strange and bracing realities.</p>
<h2>First Amendment journalism</h2>
<p>The digital dimension of communications and citizenship has rendered old laws and societal and political values anachronistic. The Guardian is no longer an ex-provincial national print title serving centre-left liberal chattering classes. It is a global multimedia publisher. As such, it no longer needs to answer to an English judiciary that tends to bow to the mantra of “national security without question”. It clearly does not see itself as compelled to give up leaked documents to the state.</p>
<p>Rusbridger has been working with the New York Times on the Snowden affair, and has been defining international public interest in democracy and liberty as he goes. And when he appeared before the committee, he spoke not of Parliament Square in London but of the legacy of the <a href="http://www.archives.gov/research/pentagon-papers/">Pentagon Papers</a> case of 1971. He also spoke eloquently about the US First Amendment and blocking prior restraint injunctions on the grounds they would be unconstitutional.</p>
<p>He may just have been transformed into one of the few British media editors who actually gets the First Amendment. Through bitter personal experience, Rusbridger appears to have realised that culturally, socially and politically, the UK is a backward and inferior member of the post-industrialised liberal democracies.</p>
<p>Everything he has described about his experience with GCHQ officials in the Guardian’s basement in July this year confirms this view. </p>
<p>The Guardian editor said he had diligently engaged with the uniquely British process of confidentially checking every article that hinged on a Snowden file, bar the first one, with Air-Vice Marshall Andrew Vallance, Secretary of the Defence, Press and Broadcasting Advisory Committee.</p>
<p>The first story revealed GCHQ had been <a href="http://www.theguardian.com/uk/2013/jun/16/gchq-intercepted-communications-g20-summits">monitoring foreign diplomats at a British G20 summit</a>. It was politically embarrassing and was not D-Notice checked precisely because of the British state’s penchant for prior estate injunction first and judicial questions later.</p>
<p>The state made it clear that it had no interest in debating the ins and outs of press freedom at other points in the affair, such as when it took a chainsaw to The Guardian’s hard discs in a symbolic destruction of copies of the Snowden files. And while Rusbridger saw the files confiscated from David Miranda, partner of Guardian US writer Glenn Greenwald, as excluded confidential journalistic material, the UK government took them to be evidence of crime and detained Miranda under the Terrorism Act.</p>
<h2>Backed up by big names</h2>
<p>Rusbridger entered the House of Commons committee room with the backing of the world’s most respected democratic news publishers, legendary Watergate reporter <a href="http://www.theguardian.com/media/2013/dec/03/open-letter-carl-bernstein-alan-rusbridger">Carl Bernstein</a> and the UN’s special rapporteur on counter terrorism Ben Emmerson QC, who said it is <a href="http://www.theguardian.com/commentisfree/2013/dec/02/guardian-terrorism-snowden-alan-rusbridger-free-press">“outrageous to accuse the Guardian of aiding terrorism by publishing Snowden’s revelations”</a>.</p>
<p>Guardian heavyweights Nick Davies and Richard Norton-Taylor sat behind him along with Liberty’s Shami Chakrabarti, indicating that his back is being covered by a liberal and constitutional conscience that should survive the banal grinding of another police inquiry into alleged journalistic criminality by the Metropolitan Police.</p>
<p>They appear to have majority public and political opinion on their side unlike the grubby ambiguity of tabloid sensationalism.</p>
<p>The next stage of this affair will probably be a stalemate stand-off followed by the declaration of an honourable draw. That is, provided UK spooks cannot prove that anything published by the Guardian has either risked or cost any human lives and if the Guardian fails to demonstrate that the government has outraged and annihilated any innocent individual’s private space.</p>
<p>The Guardian’s story is undoubtedly huge, but until it can bring it down to a personal level and strike a chord similar to the public shock that greeted the hacking of Milly Dowler’s phone, the Snowden affair is doomed to remain politically abstract.</p><img src="https://counter.theconversation.com/content/21129/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Crook is Tim Crook is a member of the Chartered Institute of Journalists and is also a member of its Professional Practices Board.</span></em></p>Guardian editor Alan Rusbridger’s appearance at the House of Commons Home Affairs Committee this week has proved revelatory in more than one sense of the word. We have heard about the events surrounding…Tim Crook, Reader in Media and Communication (Goldsmiths), Visiting Professor of Broadcast Journalism (Birmingham City University), Goldsmiths, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/211332013-12-04T14:48:10Z2013-12-04T14:48:10ZIt’s all about cryptography as Rusbridger faces parliament<figure><img src="https://images.theconversation.com/files/36937/original/vt59wrzh-1386166702.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The big questions in the Snowden saga hinge on who knows what about encryption.</span> <span class="attribution"><span class="source">Bob Lord</span></span></figcaption></figure><p>Despite all the political blustering that has surrounded Guardian editor Alan Rusbridger’s meeting with the House of Commons Home Affairs Committee this week, the real story in the Snowden affair is cryptography.</p>
<p>In some ways, it seemed as though UK security agency GCHQ had been hit by the notorious CryptoLocker virus. CryptoLocker holds computer users to ransom by encrypting all their files and can cause serious headaches for the victim. Some of the answers given by Guardian editor Alan Rusbridger at the House of Commons Home Affairs Committee on 3 December paint a picture similar to what happens when the virus strikes.</p>
<p>Rusbridger admitted that David Miranda, the partner of Guardian US columnist Glenn Greenwald, had been carrying some of the Snowden files in encrypted form when he was held under the Terrorism Act in August. But, so far, neither the police nor GCHQ have been able to decrypt them.</p>
<p>So, just like CryptoLocker victims, GCHQ is in possession of some of its own files but cannot get into them, as much as it would like to. The contents of the files won’t be a surprise, but GCHQ would very much like to know what it is that Snowden and the journalists know about its work.</p>
<p>Encryption lay at the heart of some of the most important exchanges during Rusbridger’s hour-long appearance in front of MPs. There were some odd interventions at the start of the session, including committee chairman Keith Vaz’s questioning of Rusbridger over whether or not he loved Britain, but from then on, one issue dominated proceedings. This was the transfer of a copy of the Snowden files by the Guardian to the New York Times.</p>
<p>Rusbridger made it clear that the Guardian had indeed shared its entire collection of Snowden files with its American partner. This had been done for journalistic collaboration, and as a safeguard after the pressure put on the Guardian by the UK government over the project.</p>
<p>These files had not been redacted to remove the names of intelligence staff but had largely been transferred in a way that Rusbridger considered fully secure. He reiterated both these points repeatedly in response to near-identical questions from the Committee. Some of the MPs argued that the Guardian might have committed an offence by transporting secret materials to a foreign country, especially if it had not encrypted them securely.</p>
<h2>A cryptographic contradiction</h2>
<p>A contradiction remains after Rusbridger’s evidence session relating to cryptography, and it’s one that is crucial when we think about whether or not The Guardian overstepped the mark in the Snowden affair.</p>
<p>When pressed for details of the security arrangements for the Guardian’s Snowden files, Rusbridger was reluctant to provide an on-the-spot answer and offered to provide written details to the committee later.</p>
<p>This seemed somewhat unusual. It is well accepted in information security circles that it is undesirable to provide “security through obscurity”. This is where your security depends on outsiders not knowing what methods you used – rather than proving security by revealing known strong methods.</p>
<p>Faced with an audience of security specialists, Rusbridger might have inspired some confidence by stating, say, that they used <a href="https://www.enisa.europa.eu/activities/identity-and-trust/library/deliverables/algorithms-key-sizes-and-parameters-report">AES with 256-bit keys</a>. But that kind of tech-talk doesn’t play well with a parliamentary committee, which isn’t equipped with the specialist knowledge required to appreciate it. Thus, all he said on this was that the files were protected with “military-grade” encryption, and that his newspaper had fully acknowledged and acted upon the unique level of sensitivity of these documents.</p>
<p>However, The MPs’ questions appeared at times to be based on the assumption that the transfer and storage of the Snowden documents had indeed been insecure. A Cabinet Office spokesman was also <a href="http://www.telegraph.co.uk/news/uknews/crime/10492749/Guardian-journalists-could-face-criminal-charges-over-Edward-Snowden-leaks.html">reported as stating</a> after the meeting that “The Guardian’s publication and non-secure storage of secret documents has had a damaging effect on our national security capabilities.”.</p>
<p>This “fact” of non-secure storage was not established in the House of Commons meeting, and in any case the committee did not appear to have the competence to make such a judgement. So why is it still assumed?</p>
<p>Very speculatively, it may be that the data seized from David Miranda have revealed more to GCHQ about the security arrangements taken by the Guardian than Rusbridger thinks. If this is the case, perhaps Rusbridger has overestimated the ability of the security arrangements used to protect the data. This may even undermine the confidence previously expressed in encryption by <a href="http://www.theguardian.com/world/2013/sep/05/nsa-gchq-encryption-codes-security">Snowden</a>, <a href="http://www.forbes.com/sites/kashmirhill/2013/08/19/glenn-greenwald-not-at-all-worried-about-britain-getting-info-from-his-partners-seized-electronics/">Greenwald</a> and <a href="http://www.theguardian.com/world/2013/sep/05/nsa-how-to-remain-secure-surveillance">security experts</a>.</p>
<p>If that were the case, it raises interesting questions about whether good faith in the encryption you are using is a sufficient defence. If your adversary is the NSA or GCHQ, <a href="http://www.propublica.org/article/the-nsas-secret-campaign-to-crack-undermine-internet-encryption">the Snowden files themselves already tell you they have ways of circumventing it</a> …</p>
<h2>The real questions that need to be asked</h2>
<p>In its ongoing inquiry into this affair, the Home Affairs Committee will take evidence from MI5 chief Andrew Parker next week. Although there is no suggestion that he will be <a href="http://www.thesundaytimes.co.uk/sto/news/uk_news/National/article1341644.ece">fully briefed on the questions in advance</a> this time, there are some questions that he can probably guess. Top of the list must be: how could Snowden get access to so many highly sensitive files?</p>
<p>This question has been raised several times by Liberal Democrat committee member Julian Huppert – and indeed by Rusbridger in this inquiry. The Guardian and its editor aren’t the only ones that need to provide a clear picture of their understanding of security and cryptography when explaining their role in this affair.</p><img src="https://counter.theconversation.com/content/21133/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eerke Boiten is a senior lecturer in the School of Computing at the University of Kent, and Director of the University's interdisciplinary Centre for Cyber Security Research. He receives funding from EPSRC for the CryptoForma Network of Excellence on Cryptography and Formal Methods. </span></em></p>Despite all the political blustering that has surrounded Guardian editor Alan Rusbridger’s meeting with the House of Commons Home Affairs Committee this week, the real story in the Snowden affair is cryptography…Eerke Boiten, Senior Lecturer, School of Computing and Director of Interdisciplinary Cyber Security Centre, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/206572013-11-27T18:43:13Z2013-11-27T18:43:13ZEncryption ethics: are email providers responsible for privacy?<figure><img src="https://images.theconversation.com/files/36154/original/pm7vxfgq-1385445019.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">While the NSA leaks keep coming, major email providers have tightened up security. But is encryption completely beneficial?</span> <span class="attribution"><span class="source">mrbill78636</span></span></figcaption></figure><p>Ex-National Security Agency (<a href="http://www.nsa.gov/">NSA</a>) employee Edward Snowden’s various <a href="https://theconversation.com/topics/nsa-leaks">leaks</a> – the most recent being a <a href="http://www.nrc.nl/nieuws/2013/11/23/nsa-infected-50000-computer-networks-with-malicious-software/">slide</a> showing that the NSA infected 50,000 of computer networks with remote-controlled spyware – confirm that state intelligence agencies around the world have been collecting and analysing people’s behaviour online for years.</p>
<p>Many people now feel that their online privacy and anonymity have been undermined – particularly as <a href="http://www.theverge.com/2013/6/6/4403868/nsa-fbi-mine-data-apple-google-facebook-microsoft-others-prism">major service providers</a> like Google, Facebook and Apple have been compromised. In response, some email service providers (such as <a href="http://www.bbc.co.uk/news/technology-25001373">Yahoo! last week</a>) are now offering full encryption of users’ data. </p>
<p>While privacy is generally seen as morally desirable, the ethical issues surrounding encryption technologies require some closer investigation. In order to properly assess such things, we need to assess not just the claims but the moral foundations upon which they are based.</p>
<p>What, then, are the main moral justifications for encryption? What are the arguments against it? And finally, what responsibilities do encryption service providers owe their clients and the public at large?</p>
<h2>The case for encryption</h2>
<p>The most obvious case for supporting encryption is one of basic liberties: certain human rights, it might be argued, are fundamental, and privacy is one of these. As such, personal information ought to be respected and kept private. Encryption is simply a method of achieving this goal. </p>
<p>Simply claiming a right, however, is not sufficient justification on its own. As some — such as ethicist <a href="http://www.press.uchicago.edu/ucp/books/book/chicago/T/bo12274697.html">Fritz AllhofF</a> — have argued, where there is an immediate danger to an individual’s right to physical security, then another’s rights might be justifiably waived.</p>
<p>This principle could also apply to the online world. If, for instance, encryption were to allow a cyberattack on the scale of Pearl Harbour to go unchecked – as described in the video below – then perhaps there might be a case for sacrificing some rights to privacy.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/6_ek8mugOUc?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Another reason is that government internet surveillance threatens the openness of the internet, undermining the spirit of the internet itself. According to this view, the principle of the internet being <a href="http://www.savetheinternet.com/sti-home">open and free</a> should be sacrosanct. </p>
<p>But note that this is more of an ideal than a reality – for instance, the actual code that operates the internet already places limitations upon it. For instance, American law professor <a href="http://www.lessig.org/">Lawrence Lessig</a> wrote of code that is designed to <a href="http://harvardmagazine.com/2000/01/code-is-law-html">facilitate identification</a> online or the rating of content.</p>
<p>Others have concerns over the prospect of information being misused, particularly by police agencies. In response to the platitude “if you have nothing to hide, you have nothing to fear”, this argument retorts “if you have something to fear, you have reason to hide”. </p>
<p>The use of social media to <a href="http://www.ted.com/talks/evgeny_morozov_is_the_internet_what_orwell_feared.html">target people</a> following the Arab Spring is one example of this. Encryption may be permitted in this sort of situation, but this is typically only relevant with regard to states that do not recognise the <a href="http://ojs.ubvu.vu.nl/alf/article/view/311/485">rule of law</a>.</p>
<p>A final reason is that surveillance can lead to “<a href="http://en.wikipedia.org/wiki/Chilling_effect">chilling</a>”, where fear of oversight changes behaviour online. Arguably, there might be instances in which something like this might be desired. </p>
<p>For instance, most would agree that production and distribution of child pornography should be limited. Encryption, however, makes these activities easier to get away with. The debate, then, ought to be about what behaviours we chill, how we go about chilling them and what the unwanted side effects — if any — might be. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/36133/original/rp2w3844-1385440160.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protest against NSA surveillance.</span>
<span class="attribution"><span class="source">Mike Herbst</span></span>
</figcaption>
</figure>
<p>If we wish to make something illegal, laws need to be very carefully written. Contrary to its legal status, the act of teenagers “sexting” each other does not seem like production and distribution of child pornography.</p>
<p>Furthermore, we need to ask how far the analogy extends – producing and distributing child pornography is not the same as illegally downloading a Miley Cyrus song. </p>
<p>While the child pornography example shows us that some limitation of internet behaviour might justified, it does not necessarily help us in telling what else ought to be limited.</p>
<h2>Reasons against encryption</h2>
<p>Supporters of encryption may point to the principle of presumption of innocence. After all, if only a small percentage of online activity is of a serious criminal nature, why should all be under surveillance?</p>
<p>There are reasons to treat such reasoning with scepticism. Given that encryption can allow and enable criminal activity — child pornography, drug trafficking, communication within criminal networks and so on — the question is this: if surveillance of criminal activity is permitted or even expected in the physical realm, why not in the virtual? </p>
<p>Encryption, after all, can protect those who attack the security of others. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/36151/original/k425mzg3-1385443578.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">highwaycharlie</span></span>
</figcaption>
</figure>
<p>It is the state’s duty to ensure national security. This is an important point – when there is a major terrorist activity, the state is <a href="http://www.smh.com.au/federal-politics/political-news/privacy-or-protection-you-cant-have-it-both-ways-says-julia-gillard-20131122-2xzht.html">held responsible</a> for not preventing it. </p>
<p>If we demand strong limits on state surveillance, who is responsible for protecting innocents from attack? The point is that we can’t expect total freedom <em>and</em> total security.</p>
<p>Where it endangers individual or national security, encryption may well be problematic. Nevertheless, we need to properly interrogate the case for state surveillance as well as the case for private protection. </p>
<p>If the state claims that encryption is contrary to national security, it is required to clarify what “national security” means, how encryption undermines it, and what individual and social goods are being traded against security.</p>
<h2>Responsibilities of service providers</h2>
<p>If encryption can be justified, what moral responsibility do the service providers have? For instance, do they have a duty to report criminal behaviour? The principle of medical confidentiality has its limits, after all: if a person states that they are planning a crime, or a child shows signs of abuse, there is a responsibility to report this information. Could it be said that encryption service providers are under the same responsibility?</p>
<p>Secondly, should service providers guarantee encryption? The deal made with the service provider gives a user an expectation of encryption, which may in turn encourage certain behaviour. But if encryption is not guaranteed, if there are ways of cracking it, do users have a moral claim against service providers? This is akin to a claim of entrapment.</p>
<p>Finally, the service providers also need to be consistent: if they offer encryption because of moral reasons, then these moral reasons ought to hold the provider to the same standard as the state. For instance, if the claim of a right to privacy holds, then the service provider cannot justifiably monitor the data or metadata or use it to make money, as this would also constitute an invasion of privacy.</p>
<p>This is only a brief overview of the issues at stake, but offers a little insight into the moral tensions involved in offering encryption services.</p><img src="https://counter.theconversation.com/content/20657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In 2012, Adam Henschke received funding from The Brocher Foundation to look at the ethics of health information. <a href="http://www.brocher.ch/en/">http://www.brocher.ch/en/</a></span></em></p>Ex-National Security Agency (NSA) employee Edward Snowden’s various leaks – the most recent being a slide showing that the NSA infected 50,000 of computer networks with remote-controlled spyware – confirm…Adam Henschke, Researcher, Applied Ethics, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/205552013-11-21T02:26:23Z2013-11-21T02:26:23ZSpying scandal: Obama, Abbott and why sorry is the hardest word to say<figure><img src="https://images.theconversation.com/files/35733/original/7qyx8pf2-1384991253.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Should Tony Abbott follow Barack Obama's example and apologise personally to Indonesia leaders over the spying scandal, as Obama did to Angela Merkel?</span> <span class="attribution"><span class="source">EPA/Andrew Harrer</span></span></figcaption></figure><p>The contrast between Australian prime minister Tony Abbott’s self-defeating <a href="http://www.abc.net.au/news/2013-11-21/abbott-not-apologising-as-indonesia-freezes-cooperation-with-au/5106896">response</a> to spying allegations with Indonesia and US president Barack Obama’s <a href="http://www.reuters.com/article/2013/10/26/us-germany-usa-spying-idUSBRE99P08G20131026">reaction</a> to smooth its similar <a href="http://www.telegraph.co.uk/news/worldnews/europe/germany/10407282/Barack-Obama-approved-tapping-Angela-Merkels-phone-3-years-ago.html">row with Germany</a> is eye-catching.</p>
<p>Obama wasted little time in getting on the front foot and attempted to mitigate the mix of offence and indignation from European leaders and the public. While much of this outrage should be seen as both hypocritical and part of standard political theatre – and despite the fact that signals intelligence might be a useful part of regular US operations – the White House was sensitive to containing wider anti-US sentiment and backlash.</p>
<p>In contrast, Abbott needs to better filter his natural bulldog political instincts, and should apologise to Indonesia. The clear-eyed combative stance that served him well as opposition leader can do more harm than good when dealing with the intricacies and complexities of foreign affairs. </p>
<p>This is not to suggest being assertive and even being prepared to occasionally get noses out of joint is an unimportant tool in the rough-and-tumble world of diplomacy.</p>
<h2>The Obama example</h2>
<p>Obama acted to take the protests against US spying activities seriously. He did not throw up “national security” smokescreens. He issued a personal apology to German chancellor Angela Merkel and ordered an immediate and total <a href="http://www.theaustralian.com.au/news/world/spain-joins-outrage-over-us-phone-spying/story-e6frg6so-1226748687864">“review”</a> of the activities of the intelligence community. He suggested a preparedness to find ways to do things differently with like-minded partners than from the past.</p>
<p>It is also likely that Obama was being half honest when he stated an unawareness of the specifics of the particular operations that had intercepted Merkel’s phone calls. The US president’s job is not to micromanage the intelligence community (including the selection of targets), although he certainly would have been fundamentally aware that the US is spying on foreign leaders abroad. </p>
<p>Yet despite the expressions of US willingness for self-imposed limits to its foreign policy activities, it is unlikely that we will witness a radical overall change in the ways and means of US espionage based on the latest diplomatic row. But hopefully the breach of trust might allow for some wider self-reflection about the costs, not just the benefits, of the rise of the surveillance state.</p>
<p>Another useful spillover of the spying “scandal” is that it has initiated a much-needed wider discussion about balancing concerns over individual privacy with counter-terrorism. It has also sparked a debate on whether agencies are collecting data because it is critical to inform relevant decisions or simply because they can do. </p>
<p>But the immediate point in this particular instance of Obama’s diplomatic outreach was to distinguish quickly between friend from foe, and promise to set or review some national rules to calm people’s suspicion and fear about US power. </p>
<p>It is worth acknowledging that Obama’s pitch to placate overseas audiences rather than justify the case for unlimited surveillance was not without some domestic heartburn. There has been <a href="http://www.foreignpolicy.com/articles/2013/10/10/nsa_veterans_the_white_house_is_hanging_us_out_to_dry">various murmurings</a> from intelligence agencies that Obama failed to adequately defend spies for doing their job and responding to executive priorities. </p>
<blockquote>
<p>There has been no support for the agency (NSA) from the President or his staff or senior administration officials, and this has not gone unnoticed by both senior officials and the rank and file at the Fort.</p>
</blockquote>
<h2>What Abbott can learn</h2>
<p>Based on glimpses of Abbott’s approach to diplomacy, he appears a closer disciple of the George W. Bush school of modern diplomacy: a “my-way-or-the-highway” point of view. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=744&fit=crop&dpr=1 600w, https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=744&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=744&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=935&fit=crop&dpr=1 754w, https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=935&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/35730/original/7csyssk2-1384990849.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=935&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tony Abbott should curb his ‘bulldog’ diplomacy instincts in this instance.</span>
<span class="attribution"><span class="source">AAP/Daniel Munoz</span></span>
</figcaption>
</figure>
<p>While it is true that all countries spy on each other, it is Australia that has been caught out in this instance. At the very least, swift signals that displayed a willingness to listen to the concerns of others are all part of the ebb and flow of a larger political game – especially when the “victim” (in this case, Indonesia) is a crucial ally. </p>
<p>More broadly, contrite public explanations can help to avoid inflaming an Asian audience. Australia has traditionally had a long-standing image problem in some parts of Asia, such as the US <a href="http://www.theguardian.com/world/2004/sep/10/indonesia.australia">“deputy sheriff”</a> tag that appears very hard to remove. </p>
<p>Smart diplomacy also requires nuanced cues and forward-thinking, especially when dealing with fragile but vitally important relationships like Australia and Indonesia. Compromise or a preparedness to make assurances about future policy directions – or even eating some humble pie – should not be automatically equated with weakness and the undermining of national interests. </p>
<p>A “call-to-arms” nationalistic rhetoric – that has worked generally well for politicians in domestic settings in the post 9/11 world – lacks diplomatic finesse and, in this instance, reeks of hubris.</p>
<p>An apology to Indonesia should be the first step as part of the Australian government’s priority to reduce the impact of the spying revelations on Indonesian national pride and not back their policymakers into a corner where they feel compelled – in part due to democratic considerations – to respond in an equally pointed and sharp public manner. It’s a lose-lose situation.</p>
<p>The well-established script that the Australian government does not comment on (or show contrition for) intelligence matters is getting tiresome. In this instance, it is hardly a justification for diplomatic negligence and failing to exercise political self-restraint.</p><img src="https://counter.theconversation.com/content/20555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Baldino does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The contrast between Australian prime minister Tony Abbott’s self-defeating response to spying allegations with Indonesia and US president Barack Obama’s reaction to smooth its similar row with Germany…Daniel Baldino, Senior Lecturer in Politics & International Relations, University of Notre Dame AustraliaLicensed as Creative Commons – attribution, no derivatives.