Surveillance, Counter-Terrorism and Comparative Constitutionalism

Fergal Davis,Nicola McGarrity,George Williams

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134095346
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The decade after 11 September 2001 saw the enactment of counter-terrorism laws around the world. These laws challenged assumptions about public institutions, human rights and constitutional law. Those challenges are particularly apparent in the context of the increased surveillance powers granted to many law enforcement and intelligence agencies.

This book brings together leading legal scholars in the field of counter-terrorism and constitutional law, and focuses their attention on the issue of surveillance. The breadth of topics covered in this collection include: the growth and diversification of mechanisms of mass surveillance, the challenges that technological developments pose for constitutionalism, new actors in the surveillance state (such as local communities and private organisations), the use of surveillance material as evidence in court, and the effectiveness of constitutional and other forms of review of surveillance powers.

The book brings a strong legal focus to the debate surrounding surveillance and counter-terrorism, and draws important conclusions about the constitutional implications of the expansion of surveillance powers after 9/11.

Part I

Introduction

1 Mapping the terrain

Fergal Davis, Nicola McGarrity, George Williams

The decade after the 11 September 2001 terrorist attacks on the United States (US) saw the enactment of anti-terrorism laws around the world that challenged understandings and assumptions about public institutions, human rights and constitutional law. The fact that governments adopted such measures is unsurprising. Governments, even democratic ones, have always allowed for the exercise of draconian state power in the face of existential challenge. The nature of that state power has informed constitutionalist debate since the time of Hobbes – as is discussed by Conor Gearty in his chapter – and goes to the heart of the dispute between Hans Kelsen and Carl Schmitt.¹ Many in the aftermath of September 11 were willing to embrace the language of the exception and use it to justify the adoption of measures that would not otherwise have been tolerated.² Such an approach presents a difficult challenge for constitutionalists, but might be excusable on the basis that the measures are a temporary and proportionate response to the threat.

Over a decade after the September 11 terrorist attacks, it is appropriate to reflect on the impact of these temporary measures on constitutional values. Such reflection is all the more necessary because many of the laws adopted in response to these attacks still remain on the statute books. They continue to have a profound impact on constitutionalism and the rule of law. In many respects, the exception has become routine. This acceptance of the exceptional is evident in the continued existence of the detention centre at Guantânamo Bay – which stands as a testament to the ongoing nature of the so-called ‘war on terror’³ – but it can also be seen in day-to-day activities. Those wishing to board commercial aircraft remove their shoes and carry their toiletries in zip-lock bags; that is now the norm. If such measures posed a challenge to constitutionalism when they were cast as exceptional, that is all the more true now that they have become a fixture of our legal systems.

That problem – the manner in which extraordinary legal measures have become routine – is of particular interest to the editors of this collection. We are part of the Australian Research Council Laureate Project entitled AntiTerror Laws and the Democratic Challenge in the Gilbert + Tobin Centre of Public Law at the University of New South Wales. The overarching aim of this project is to answer the question of how democratic nations (including Australia, Canada, India, New Zealand, the United Kingdom (UK) and the US) can best reconcile traditional democratic processes, institutions, principles and individual freedoms with the likelihood that anti-terror laws granting extraordinary powers will remain in place for the foreseeable future. This collection engages the aims of the project within the specific field of surveillance.

Surveillance is a particularly intriguing case study because of its ubiquitous nature (as is discussed in many of the chapters in this collection). The spread of surveillance measures, mechanisms and technologies has the potential to reshape our notions of privacy and liberty. The ever-present nature of the surveillance state may even go so far as to fundamentally redefine the relationship between citizen and government.

In his chapter, David Cole remarks on the all-pervasive nature of surveillance in society: ‘private data-mining services, most often used for commercial advertising purposes, can determine what we read, listen to, and look at; where we travel, shop, and dine; and with whom we speak or associate’. As a result, we might suppose that the issues of the surveillance state are not just public law problems. These problems stem from wider alterations to the way in which we live our lives. To some extent that is true; American Express and Google probably know more about us than any government knows. However, the use of surveillance technologies by the state gives rise to concerns of a different order, and counter-terrorism has provided a pretext for the expansion of the use of these technologies. For example, in the immediate aftermath of the Boston bombings of April 2013, the Mayor of New York City, Michael Bloomberg, called for the increased use of enhanced surveillance technologies (of the type discussed by Jens Kremer in his chapter) in Times Square.⁴ The expansive use of surveillance and its ability to reshape the relationship between the government and citizens goes to the heart of the constitutionalist debate.

When addressing the issue of surveillance, especially in the counter-terrorism context, it is difficult to avoid a certain paranoid tone. After all, counter-terrorism (or at least the dystopian account of it) is often referred to as Kafkaesque. It is almost compulsory to invoke George Orwell or Aldous Huxley when discussing surveillance. But the UK case of Paul Chambers brings Milan Kundera’s 1967 novel,The Joke, to mind. Kundera’s novel is based in Soviet Czechoslovakia. The character Ludvík sends a postcard with an ironic message. He writes: ‘Optimism is the opium of the people! A healthy atmosphere stinks of stupidity! Long live Trotsky!’⁵ The Soviet state does not appreciate Ludvík’s joke; he is expelled from university and sent to a prison camp.⁶

On 6 January 2010, in the democratic UK, Chambers sent the modern equivalent of a postcard. He tweeted: ‘Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!’⁷ The tweet was seen by a duty manager at the airport, who was surveying online references to ‘Robin Hood Airport’. The duty manager notified the police.⁸ Chambers was convicted of sending by a public electronic communication network a message of a ‘menacing character’ contrary to s 127(1)(a) and (3) of the Communications Act 2003 (UK).⁹ On 27 July 2012, following three appeals, Chambers’ conviction was finally quashed by the High Court in London, but by then Chambers had lost his job and was, in his words, ‘unemployable’.¹⁰ The prosecution of Chambers illustrates the fragility of the individual in the face of state power. It also demonstrates the potential for the surveillance state to unleash that power against the subject for something as inane as a bad joke.

In his chapter, Gearty asks ‘how can it be that democracy, the rule of law and respect for human rights can be thought capable of accommodating such extraordinary plans as… secret courts?’. Gearty’s question requires only slight modification for the purposes of summing up this collection as a whole: how can it be that democracy, the rule of law and respect for human rights can be thought capable of accommodating such extraordinary surveillance measures? In Part I of this collection, the Hon Anthony Whealy QC brings his unique perspective to bear on that question. In his capacity as a judge of the Supreme Court of New South Wales, Whealy presided over some of Australia’s leading counter-terrorism trials.¹¹ Then, in August 2012, he was appointed to chair the Council of Australian Governments Review of Counter-Terrorism Legislation Committee.¹² His chapter is deeply infused with the practical experience of a former judge who understands and appreciates the policy considerations at play within the law. Whealy challenges the characterization of the judiciary by academics as ‘weak-kneed and overly deferential to the executive’.¹³ His thought-provoking chapter sets out this and other challenges for the later contributors.

In Part II, entitled ‘Who is watching?’, the chapters draw on discrete areas to paint a picture of surveillance in the anti-terrorism context. A particular concern of these chapters is to identify the various categories of actor that are involved in surveillance practices. Clive Walker examines Project Champion in Birmingham, UK, as an example of what he terms ‘glocalization’. He notes that Project Champion is not unique in counter-terrorism community surveillance; the lessons that can be drawn from it are applicable to other models of community surveillance as a tool of counter-terrorism. Walker sees counter-terrorism as having been placed within an ‘all-risks’ paradigm. By this, he means that the ‘terrorism risk is perceived as so serious and so pervasive that police will treat anyone and everyone as a risk’. The impact of such an approach for surveillance is clear – ‘all risks’ justifies total surveillance and Walker analyses the impact of that through the example of Project Champion.

The chapter by Ujjwal Singh shifts our attention from Birmingham to India. It describes how the Indian state has incrementally accumulated surveillance practices over the past decade. Traditional surveillance tools, such as stop and search, are still utilized. However, the development of new technologies has meant that the Indian state is increasingly able to ‘reach into’ the private lives of citizens without any direct proximity to them. There are some interesting points of distinction between this chapter and those dealing with other western democracies. In particular, Singh notes that the Indian state has sought to monopolize all powers of surveillance by making any electronic surveillance by private agencies an offence.

In contrast with India’s attempts at state monopolization of surveillance, the trend towards the privatization of surveillance in western democracies is examined by Fiona de Londras. She accepts that many aspects of surveillance are a matter of concern, regardless of who carries them out. However, de Londras argues that the engagement of private actors in surveillance – especially as concerns non-contractual co-option – has a particularly detrimental effect on the constitutionalist principles of limited, transparent and accountable power. De Londras – like Singh – notes that the distance that technology has created between the surveiller and the surveilled means that surveillance is often invisible until the latter is charged with a criminal offence. This is exacerbated by the lack of transparency surrounding the identity and tasks of the private actors and the state’s lack of accountability for engaging these actors to engage in surveillance on their behalf. De Londras does not give up on the possibility of law regulating new surveillance techniques. What she sees as being required, however, is a recommitment to constitutionalist principles.

The final chapter in Part II is a joint effort by Flora Goudappel and Monica den Boer. Our attention is redirected in this chapter to the level of intergovernmental relations. Goudappel and den Bo...