Freedom from warrantless, arbitrary searches and all-pervasive state surveillance and suspicion were defining principles of life for citizens in the West, or so one might naively once have thought. But so much of our modern lives is spent online, and this year, Australia, Canada, Britain and the US have seen a curiously coincidental effort to have the motherlode of surveillance laws thrust upon their peoples, with private companies bade to store and surrender every byte of online data to state spies, on demand, without a warrant.
As the democracy activist group GetUp! Action for Australia explains, Australia’s government has been seeking legal changes which will require communications companies to keep all web users’ data, emails and social media traffic for up to two years, to be given up, along with any passwords, on pain of imprisonment, to the Australian Security and Intelligence Organisation (ASIO). Terrifyingly, the ASIO was also to be given free hand to remotely access people’s computers and ‘legally modify, delete or add files’, without a warrant, if ASIO thought your computer was linked, for example through an open wi-fi connection, to any other computers under investigation.
Licence to spill
One suspects the new law would only have legalized what ASIO already does, and it already has pretty broad licence. Under part 13 of Australia’s 1997 Telecommunications Act, providers can disclose to law enforcement agencies users’ data if it is ‘reasonably necessary’ to enforce a law, or there is a warrant to do so – a pretty standard legal cop-out from data protection seen across Western states, but at least there is a statutory demand for some kind of legal justification for disclosures. But also under part 13, warrantless disclosures are permitted, ‘where the disclosure is made to ASIO for the performance of its functions’.1 As ASIO’s primary function is surveillance, giving data to ASIO spies is self-justifying – enabling ASIO’s spies to spy on people is OK because that is what ASIO does.2
This year, Australia, Canada, Britain and the US have seen a curiously coincidental effort to have the motherlode of surveillance laws thrust upon their peoples
One might think ASIO is literally a law unto itself; however, following much public protest – led by GetUp! – against giving ASIO even more powers, on 10 August Australia’s attorney-general Nicola Roxon deferred putting the proposals to parliament until after the next election. For that she duly incurred the wrath of the security services,3 with a senior (and anonymous) national security official calling the government ‘risk adverse’ with little appetite ‘for anything that attracts controversy’.4 This fits the trend of the West’s one-time super-secret intelligence agencies now openly criticizing elected governments. Whereas once only right-wing political opponents sought to capitalize, calling their opponent softs on terror, now our spies do so freely.
Ticking bomb fear tactics
The proposals themselves bore striking resemblance to other surveillance laws being wielded elsewhere. In Canada earlier this year, police backed the ‘Protecting Children from Internet Predators Act’ that sought to have telecommunications providers give them subscriber data on demand, without a warrant, on the grounds that they needed such data quickly to stop children being groomed over the internet and suicidal people killing themselves. Funnily enough, while children and paedophiles often loom large in arguments supporting the set-up of all-invasive surveillance states for these children to grow up in, the bill did not mention children beyond its title, while the touchy-feely concern for suicidal people was a new twist on the ‘ticking bomb’ fear tactic that accompanies so much other draconian legislation.5 The bill was the latest attempt of many since 1999 to secure ‘lawful access’ and failed like the others, not least because, as federal deputy privacy commissioner Chantal Bernier said, the law ‘could impact any law-abiding Canadian citizen’ with its demolition of privacy and the presumption of innocence.
The Pentagon has ‘formally recognized cyberspace as a new domain in warfare’
However, Canada’s Public Safety minister Vic Toews denounced one critic of the bill, saying: ‘He can either stand with us or with the child pornographers.’ And this remark was curiously echoed by Home Secretary Theresa May to opponents to Britain’s 2012 Communications Act bill (a.k.a. the ‘Snoopers charter’ or ‘mass surveillance bill’) that demands companies store all users’ telecom and online data so the police and agencies can sniff through everyone’s records, whenever, without a warrant. May dismissed criticism that the bill binned fundamental rights such as living free from arbitrary state suspicion and surveillance, or the right to hold investigators to account and their acts to judicial scrutiny, arguing that the only freedom being defended was that of ‘criminals, terrorists and paedophiles’. The bill will recommence its churn through Parliament after the summer recess.
Battle of the bills
In the US, a veritable battle of bills is going on. Following the Stop Online Piracy Act, which allows the US to shut down entire internet domains and censor free speech in the name of enforcing copyright laws, in April the House of Representatives passed the Cyber Intelligence Sharing and Protection Act (CISPA) bill, giving more cover to private companies when sharing individuals’ private and personal data and communications with the government, and also better enabling them to monitor individuals’ web usage, backed, tellingly, by Microsoft and Facebook. The Senate is supposedly against it, and even were it passed President Obama may veto it. But Obama’s record on civil rights and liberties includes having renewed the Patriot Act, keeping Guantanamó open and taking execution by drone to a new level. Obama backed Joe Liebermann’s 200-page Cybersecurity Act, designed to defend the US’ major computer networks and infrastructure against cyber attacks, but meanwhile giving greater legal impunity to companies to spy on web users – and share their data with the government.6 In early August, Republicans led the Senate vote down of this bill, much to Obama’s chagrin. But don’t thank the GOP for defending liberty. Their own SECURE IT Act of 2012 would enable and incentivise greater commercial and state surveillance of web usage – without establishing any government regulation or standard for security to cover infrastructure. The bill is currently batting around Congress.
Too often, our public servants – elected to safeguard our rights – end up serving the seedy agendas of state spies on the permanent public payroll
It seems both the GOP and Democrats have become engrossed in stopping the other taking the legislative credit for fulfilling the real agenda set by the Pentagon, which has ‘formally recognized cyberspace as a new domain in warfare.’ This global domain, where we play on Facebook, socialize, pay tax or bank online, is just another theatre of war where we are all potential victims to any blow struck anytime from anywhere. Too often, our public servants – elected to safeguard our rights – end up serving the seedy agendas of state spies on the permanent public payroll; they consider us all equally tooled up as potential cyber enemies. So they seek to fight this paranoid perception by demolishing our real rights, with the legalized connivance of private companies. If we kick up enough we can remind politicians who they really serve. But we have to keep at it, time and time again.