Electronic surveillance and privacy 130916

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Presentation in Uppsala, September 16th, 2013. Hosted by UF Uppsala (Association of international affairs).

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Electronic surveillance and privacy 130916

  1. 1. Electronic surveillance and privacy in the light of the Snowden affair fil. kand, jur. kand, LL.M. jur. dr. Mark Klamberg senior lecturer public international law, Uppsala University 16 September 2013
  2. 2. Outline I. Programs and applications covered in media as a result of the Snowden affair II. What is the purpose of intelligence? III. How does modern surveillance work? IV. Is it legal? V. Why are we having this discussion now? VI. What is privacy?
  3. 3. Programs and applications covered by media 2013 (selection) NSA (USA) • PRISM - social media (downstream) • Blarney, Fairview, Stormbrew, Oakstar - upstream collection • PINWALE - metadata database • Xkeyscore (NSA, BND) - search and analysis tool • Marina - internet metadata database • Mainway - telephone metadata database • Bullrun - weaken encryption standards GCHQ (UK) • Tempora - upstream collection • Edgehill - weaken encryption standards NSA, GCHQ, CSE, DSD, GCSB (USA, UK, CAN, AUS, NZ) • FiveEyes - cooperation agreement, exchange of data DGSE (France) • “Big Brother français” (Le Monde 4 July 2013) - upstream collection, metadata database FRA (Sweden) • “FRA-law” - upstream collection • Titan - metadata database • “The third pillar” - cooperation agreement, exchange of data
  4. 4. Stressonsociety Start of reaction Time Normal state of society Start of crisis Stress on society Robustness Early warning Reaction For each sector of society there is a balance Source: Civil Security, Saab AB What is the purpose of surveillance?
  5. 5. 5 We humans leave electronic footprints after us, in the form of credit card payments, visits to websites, records of phone calls and e-mail (communication data). Imagine that somebody could collect everything and process it through a powerful computer. With the right tools one could find patterns that in detail describe what groups and networks you belong to. Such techniques are referred to as traffic analysis and social network analysis Traffic analysis and social network analysis
  6. 6. 6 With traffic analysis social networks may be identified A communication pattern can depict relations between individuals, Organisations, websites, etc with purpose of charting the social networks, position of power, views and other personal data about an individual. The actual message is less important than the information about the sender, recipient, the time of transaction, and means of communication. Knowledge about the communication pattern and thus the social network of person is often enough Individual
  7. 7. How does it work? Panopticon (Bentham)
  8. 8. Liberals Colleagues in the HagueCentre liberals and conservatives Jews Running Colleagues in Stockholm Homosexual liberals Colleagues Blekinge Friends in Lund Social network analysis with Facebook Application: ”Friend Wheel”
  9. 9. 9 USA Organization: National Security Agency (NSA) Legislation: FISA Cases (multiple): Smith v. Maryland (1979), Hepting v. AT&T (2012), Jewel v. NSA (2013) United Kingdom Organization: Government Communications Headquarters (GCHQ) Legislation: RIPA Case: Liberty et al. v. The United Kingdom, Kennedy v. United Kingdom Is it legal?
  10. 10. 10 France Organization: Direction Générale de la Sécurité Extérieure (DGSE) Germany Organization: Bundesnachrichtendienst (BND) Legislation: G 10-law (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses) Case: Weber and Saravia v. Germany Denmark Organization: Forsvarets Efterretningstjeneste (FE) Legislation: 17 § forsvarsloven Is it legal?
  11. 11. 11 Technological change Until the end of the 1990s satellites were the main medium for international communication. Now it is fiber optics in cables controlled by private companies. Shift in Threats Relevant for National Security The perceived threat from the Soviet Union has been replaced with vague threats such as terrorism, international criminality, migration, environmental threats and financial imbalances New Legal Demands The European Convention on Human Rights requires that interferences in the private life and family has a legal basis (article 8) Privatization Telecom operators were previously state-owned and controlled. Now they are private companies whose priority is to safeguard the interests of their customers, not the interests of the state Why are we having discussion now?
  12. 12. 12 Considering the changes in the 1990s: The technological change and privatization creates a need to adopt legislation or other binding measures that obligates the private operators to surrender communication to the State. This makes the existence of previously top secret surveillance public knowledge The shift in perceived threats creates a need to expand the mandate or codify an already expanded mandate of signal intelligence organizations The public knowledge about this surveillance and new legal demands creates a need for legislation protecting privacy Why legislation?
  13. 13. Panopticon (Bentham) Solove, A Taxonomy of Privacy, 2006 What is privacy?
  14. 14. 14 Bamford, James, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America, Doubleday, New York, 2008 Klamberg, Mark, FRA and the European Convention on Human Rights - A Paradigm Shift in Swedish Electronic Surveillance Law in “Overvåking i en Rettstat,Nordisk årbok i rettsinformatikk” (Nordic Yearbook of Law and Information Technology),pp. 96-134, Fagforlaget, Bergen 2010 Aldrich, Richard J., GCHQ: The Uncensored Story of Britain's Most Secret Intelligence Agency, Harper Press, London, 2010 Fura, Elisabet and Klamberg, Mark, The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA in Josep Casadevall, Egbert Myjer, Michael O’Boyle (editors), “Freedom of Expression – Essays in honour of Nicolas Bratza – President of the European Court of Human Rights”, Wolf Legal Publishers, Oisterwijk, 2012, pp. 463-481 Read more
  15. 15. Questions?
  16. 16. 16 Twitter: @klamberg Blog: www.klamberg.se E-mail: mark.klamberg@uu.su.se Thanks!

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