Sunday, 30 June 2013

Prism: the right to privacy versus the right to national security in the Internet age

In June 2013 Edward Snowden, an American, former technical contractor to the United States National Security Agency (“NSA”) revealed classified information about a number of global, secret intelligence programs; the allegations have been startling and provided insight into the inner workings of global intelligence surveillance programs.  

The just of the revelations, documented by the UK Guardian newspaper and the US based Washington Post, is this; major tech companies like Google, Microsoft, Yahoo, Facebook, Skype, YouTube and others were ordered by the United States Foreign Intelligence Surveillance Court to supply vast amounts of previously confidential information to intelligence agencies. Project Prism and others give intelligence agencies legitimate access to a veritable gold mine of information. 

In the face of public outcry, some of the fingered technology companies (Facebook, Microsoft and Google) have requested permission to make certain disclosures public to ease public fear that personal information is being abused.  Everyone is being told, “don’t worry, if you’re not a terrorist or threat to US security, you will be fine and your privacy is safe”.  The data requests are pursuant to the Foreign Intelligence Surveillance Act and technology companies are eager to make these requests public to avoid the various negative connotations attached to the consumer base thinking personal information is no longer sacrosanct. We wait to see if this information is dispatched into the public domain.

For his part, Snowden said this to the Washington Post about the leak:

My sole motive is to inform the public as to that which is done in their name and that which is done against them.”

To make matters decidedly uncomfortable for the whistle-blower, he is wanted by the US Government on charges of espionage and theft of government property. The head of the EU Parliament is also calling for clarification after it emerged from a previously confidential document that the EU data networks were fair game in the fight against terrorism.

The crux of it is this – wherever you are, your telephone and Internet communications are probably subject to interception and monitoring by a vast array of global intelligence agencies.  That being said, did you really think otherwise? It would be na├»ve to think (in a post 9/11 environment) that global intelligence agencies would simply sit back and wait for the next global catastrophe while critical metadata and telephone records are available, and right under their noses.  The rapid convergence and development of communication technologies makes Washington appear as close to Kabul or London as it is to Philadelphia or New York. And even terrorists need to communicate. 

The global communication dynamic has changed, and is changing.  Intelligence agencies must and have adapted.  They will need to continue to adapt now that this information is in the public domain. US law makers and the incumbent democratic president say that programs such as Prism are necessary to combat terrorism and society must accept a balanced approach.   A balanced approach, a reasonable approach; this type of language is associated with civil liberty rights the world over; and particularly the right to privacy. Although the US does not expressly protect privacy in its constitution, the concept of privacy of individual is fervently protected and many landmark United States Supreme Court decisions revolve around and give constitutional protection for the concept of privacy.

A person’s right to privacy is always a balancing act, wherever they live.  This right is not absolute and must be balanced with and measured against other competing interests and rights.  For example, is a State’s right to national security greater than your right to privacy in a given situation? Well, the State’s right to secure its citizens and foster a community will probably trump the right to privacy in some instances, but not all; and it will clearly depend on each given factual scenario.

In order to have the liberties that we are currently afforded, wherever we may live, in certain instances these rights or liberties must be limited or sacrificed if the outcome is justifiable, equitable or reasonable.  In South Africa, the right to privacy is protected under section 14 of the South African Constitution but as with the United States, this right is not absolute. It may be limited or infringed in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Although the conceptual framework used by the United States differs from South Africa, the balancing and enquiry are similar. Essentially, can one legitimately expect privacy of Internet communication? Yes, they can.  But, can this expectation of privacy be limited or eroded due to some other competing right? Again, yes, particularly in the context of national security. 

Most often, with the aid of legislation such as FISA, intelligence agencies are able to justifiably tap into personal information and infringe global privacy rights.  Most will accept this as a reasonable limitation on their individual civil liberties but whatever is ultimately revealed in the coming weeks and months, one thing is clear, there must be independent oversight on the nature and extent of projects such as Prism in order to provide the global public with a sense of justice and fairness.