Presentation used in Master Programme in Law and Information Technology, Stockholm University, 25 February 2010

1. Electronic Surveillance of Communications - Master Programme in Law and Information Technology - Course C 2010. Development and Management of Information Systems in a Legal Perspective - Course C, block 5. Identification and Control technologies Mark Klamberg, doctoral candidate

4. Changes in Our Society 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

5. Signal Intelligence - why legislation? 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

6. Data retention - why legislation? Communication providers have stored traffic data (who is phoning who and when) about the phone calls of their customers for billing purposes. Law enforcement agencies have used such data in order to detect, prevent and investigate crime Nowadays, consumers are turning to flat-rate subscriptions and voice over IP-services (for example Skype). Thus, there is no need to retain traffic data for billing purposes. Law enforcement agencies still want/need traffic data.

7. 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

8. 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

9. U.S. National Research Council, report October 2008 “ Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment”

10. Two general types of data mining techniques 1. Subject-based data mining 2. Pattern-based data mining U.S. National Research Council “Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment”

11. Subject-based data mining Subject-based data mining uses an initiating individual or other datum that is considered, based on other information, to be of high interest, and the goal is to determine what other persons or financial transactions or movements, etc., are related to that initiating datum. U.S. National Research Council

12. Pattern-based data mining Pattern-based data mining looks for patterns (including anomalous data patterns) that might be associated with terrorist activity—these patterns might be regarded as small signals in a large ocean of noise. U.S. National Research Council

13. When to use the two different techniques In the case of the decentralized group, subject-based data mining is likely to augment and enhance traditional police investigations by making it possible to access larger volumes of data more quickly. Furthermore, communications networks can more easily be identified and mapped if one or a few individuals in the network are known with high confidence. By contrast, pattern-based data mining may be more useful in finding the larger information footprint that characterizes centrally organized terrorist groups. U.S. National Research Council

14. Utility of pattern-based data mining The utility of pattern-based data mining is found primarily if not exclusively in its role in helping humans make better decisions about how to deploy scarce investigative resources, and action (such as arrest, search, denial of rights) should never be taken solely on the basis of a data mining result. Automated terrorist identification through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts. U.S. National Research Council

15. Panspectron (Delanda) “ There are many differences between the Panopticon and the Panspectron being assembled at the NSA. Instead of positioning some human bodies around a central sensor, a multiplicity of sensors is deployed around all bodies: its antenna farms, spy satellites and cable-traffic intercepts feed into its computers all the information that can be gathered. This is then processed through a series of “filters” or key-word watch lists. The Panspectron does not merely select certain bodies and certain (visual) data about them. Rather, it compiles information about all at the same time, using computers to select the segments of data relevant to its surveillance tasks.” Panopticon (Bentham)

16. Discussion Based on the material distributed, discuss for 15 minutes: 1. When does the interference with privacy occur in relation to systems of mass surveillance of electronic communication? 2. How does the American system differ from the legal regime under ECHR in its approach to the content/non-content distinction? 3. In the country you come from, do you have any regulations concern signal intelligence/strategic monitoring/surveillance for intelligence purposes? If not, does your country still have a state agency similar to the NSA, GCHQ, BND and FRA? 4. Is it appropriate to involve courts in issues concerning the implementation of policies on national security?

17. Defining content and traffic data As opposed to the content of a message, traffic data is the information used by the communication network to deliver the message to or from the user. In a telephone network, traffic data will reveal the number dialed (“to”), the originating number (“from”), the time of the call, and its duration. In the internet context, traffic data will similarly reveal the “to” and “from” e-mail address, the instant message to and from account names, and the other administrative information the computers generate in the course of delivery Compare with Orin Kerr: content and envelope information

18. Four fields of legislation International communication Domestic communication Preliminary Investigation Intelligence N/A 1. Chapter 27 of the Code of Judicial Procedure 2. Chapter 6 section 22(3) of the Electronic Communications Act (2003:389) 3. Act on measures concerning certain serious crimes (2008:854) 1. Act on measures to prevent certain serious crimes (2007:979) 2. Chapter 6 section 22(3) of the Electronic Communications Act (2003:389) Signal Intelligence Act (2008:717)

19. EU Data Retention Directive 1. Data is retained for periods of not less than six months and not more than two years from the date of the communication 2. The data retained purports to the questions who was communicating with who, when the communication occurred, where was the communicating parties and what type of communication used. 3. No content data may be retained for the purpose of the directive. 4. The access for national authorities to the data is to be regulated through domestic law

20. Summary of the legislation adopted 18 June 2008: IT- and telecom operators are obligated to transfer all communication in cables crossing Swedish borders to nodes controlled by the State The Defence Radio Establishment will intercept communication and collect data at the nodes (signal intelligence)

21. Similar organizations, laws and programs USA Organization: National Security Agency (NSA) Legislation: FISA United Kingdom Organization: Government Communications Headquarters (GCHQ) Legislation: RIPA Case: Liberty et al. v. The United Kingdom

22. Similar organizations, laws and programs 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

25. 2. Clients (known) 12 August 2009 1. The Government 2. The Government office 3. The Defence Forces 4. The Police, including the Security Service (SÄPO) 5. National Inspectorate of Strategic Products 6. Swedish Customs Service 7. Defence Materiel Administration Agency 8. Defence Research Agency 9. Civil Contingencies Agency International Partners exist but unknown which those are. Could include NSA, GCHQ, BND, DGSE and FE Excluded in Autumn 2009

30. Questions?

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