The last few years have seen enormous public debate over the collection of metadata through mass surveillance. We now know that intelligence authorities globally have been casting a wide dragnet to capture communications metadata, which they then retain and mine for information. Governments including those in the United States, the United Kingdom, and Australia claimed the primary reason for doing this was to prevent terrorism. But then they started using the same tools for non-terrorist purposes. What are we to make of this?
A few weeks ago, a 2015 ruling of the Foreign Intelligence Surveillance Court in the United States was made public. It shows, among other things, that only last year the court interpreted the law around surveillance to allow the FBI to search databases to look for evidence of crimes that had no relationship to national security. It made this decision against the advice of a non-government lawyer.
There are two particularly interesting things about this new revelation. The first is that it happened after passage of the Freedom Act in 2015, the new law that President Obama claimed would better protect privacy and civil liberties, while still providing national security agencies with the tools they need to keep Americans safe. So is all crime now considered a “national security” issue? Second, the non-government lawyer who gave the advice is only the second to do so since the passage of the Freedom Act. One of the criticisms of the court prior to 2015 had been that it is a secret court that holds its hearings in private, and that no position other than the government’s was ever presented in argument. The Freedom Act was supposed to change that. In this instance, the non-government lawyer argued that the Federal Bureau of Investigation’s practices “go far beyond the purpose” of the law that permits the collection of metadata, because they allow “queries that are unrelated to national security.” The judge disagreed, which means the FBI can continue to collect and mine data for purposes other than counterterrorism.
It is important to remember that all of this has occurred since the 2015 ruling by the Court of Appeals that the bulk collection of telephone metadata that the US National Security Agency had been allegedly authorised to do by s215 of the Patriot Act was illegal, in spite of the Foreign Intelligence Surveillance Court having repeatedly said that it was.
At the same time in the United Kingdom there have been new revelations about “the staggering extent” of data collected by intelligence agencies, the majority of which is entirely unrelated to suspicion of terrorist, or even criminal, activity. This comes after the Court of Justice of the European Union found in April 2014 that a Data Retention Directive issued by the European Parliament and European Council in 2006, a Directive that had formed the basis for the laws under which metadata were collected and retained in the United Kingdom, disproportionately interfered with privacy rights and did not place appropriate limits on authorities’ use of the data. This led the government of the United Kingdom quickly to pass a new law, the Data Retention and Investigatory Powers Act 2014, to enable it to continue its data collection and mining. That law has also been challenged as possibly invalid on human rights grounds.
In Australia, in 2015 the federal government passed a new law giving it guaranteed access to data by requiring internet service providers to keep information about their subscribers for two years. Again, this does not only relate to data kept for national security purposes or to combat terrorism – the agencies that can apply for access to the data include the Australian Customs and Border Protection Service and the Australian Securities and Investments Commission.
When governments across the world ratcheted up their counterterrorism apparatus in the wake of the 9/11 terrorist attacks, they claimed that terrorism represented such a new paradigm that it warranted new and extreme policy responses. This was a different enemy; we were in a new world at a turning point in history. In response we needed new measures to address a different and changed threat. Significant policy changes were needed to protect ourselves from this new and changed threat. Indeed, “policy had to change definitively.” We had to be prepared to do “things we ordinarily would not have done.”
Now, a decade and a half later, those policy measures have become ordinary. New security measures that were justified when being introduced as necessary to protect us against an extraordinary and singular type of threat are now being extended in ways that impact on the lives of everyday citizens, and are being applied in the search for mundane and ordinary types of crime. Yet another lesson in the dictum that power corrupts, and absolute power corrupts absolutely.
Headline Image: Binary code by christiaan_008. CC BY-SA 2.0 via Flickr