Sunday, 7 July 2013

EU Parliament Review Individuals’ Rights to Privacy and Data Protection in light of Prism

On Thursday, 7 July 2013 the EU Parliament adopted a resolution directed at investigating US “surveillance and spying activities”. This came in the face of recent confidential disclosures by former National Security Agency (“NSA”) analyst Edward Snowden – the whistle-blower revealing the inner workings of US spy agencies.  Bolivia, Nicaragua and Venezuela are the first to have offered Snowden political asylum but he will, for the rest of his days, live in the shadows regardless of where he ends up.

Prism, the NSA digital surveillance project, has prompted EU privacy and data protection concerns. The EU resolution, “US National Security Agency surveillance programme, surveillance bodies in various Member States and their impact on EU citizens' privacy”, calls for investigation into similar surveillance projects conducted by Sweden, Germany, Poland and the UK.  The resolution further attacks the NSA for its spying activities - issuing a thinly veiled threat in relation to US and EU transatlantic relations.

For the uninitiated, Internet and telephone data is typically transported wirelessly (Africa in particular) or along interconnected cables, some cables running between continents under the ocean.  NSA and others are paid to be clandestine and gather intelligence to protect their various interests – absolute data privacy does not really exist – and we cannot be surprised to learn of these interceptions; Snowden has merely confirmed long held suspicions.

That being said, the EU is on a laudable mission to clarify whether these programs violate international data privacy by expressing:

“…serious concern at the revelations relating to the alleged surveillance programmes run by Member States, either with the help of the US National Security Agency or unilaterally”   
How these programs, which are capable of intercepting any number of communications on social media, telephone and the Internet, can ever reconcile themselves with data privacy and data protection laws is beyond me.   But I wait with interest to see what the EU parliament will find – this is expected before the end of 2013.

The fundamental attribute of success relating to Internet or instant communication is the immediacy of the platform – the fact that we can instantly communicate and transact.  The corollary, of course, is that these instant communication technologies are capable of being intercepted and monitored in any number of ways without society being any the wiser.  Civil libertarians can justifiably complain.

Spy agencies were roundly criticized in the wake of 2001 terror attacks and legitimately fear a cyber attack on US/EU computer systems or data networks.  US government lead terrorist rhetoric has subsided, but the proactive monitoring and interception of a variety of communications, it is argued, will enable the leader of the free world to neutralize any number of terrorist threats before they occur.  The US Patriot Act – its primary aim to intercept and obstruct terrorism – was created in order to give government the overarching power it needed, and was recently described by the New York Times as shorthand for government abuse and overreaching.

Be that as it may, the civil liberty infringements created by the Patriot Act, for the vast majority of US citizens, in reality are minimal – a US professor has called the impact of the Patriot Act mild and mundane in examining civil liberty effects a decade after the fact. And as pointed out by the Times article, the broad impact felt by society is small.  The CIA and NSA have your phone number, e-mail address and can check your communications if you act suspiciously – that is about the sum total of it many argue.

However, the interpretation of existing US laws, coupled with the new Patriot Act means anything but mild and mundane for suspected terrorists – many guilty until proven innocent – flipping the typical legal presumption on its head.  Secret torture camps in foreign jurisdictions and torture as the modus operandi; all in the name of freedom. Hundreds were tortured, tried and prosecuted for terrorist related offences, even the provision of money would constitute “material support” and condemn the suspect to harsh conditions with no legal representation. How many innocent men were tortured and was it a necessary means to an end?  I guess we will never know with the current prevention narrative.

The EU parliament appears disturbed and angry at the Snowden revelations that spy agencies bug and intercept EU parliamentary communication.  They say:

 “EU institutions and EU and Member State embassies and representations have been subjected to US surveillance and spying activities

The wider implication is that the transatlantic partnership between the EU and the US is under some pressure and it will be interesting to understand the EU’s interpretation of national security, freedom of expression and data privacy in a post-privacy Internet world.  Of equal interest will be to watch the official US response; particularly given the world's largest free-trade zone is the subject of upcoming official discussion this month. Ultimately, however, the final realization must be that anything you say or do online is capable of being held against you.