Surveillance and the Law

Language, Power and Privacy

Maria Helen Murphy

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429938801
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Surveillance of citizens is a clear manifestation of government power. The act of surveillance is generally deemed acceptable in a democratic society where it is necessary to protect the interests of the nation and where the power is exercised non-arbitrarily and in accordance with the law.

Surveillance and the Law analyses the core features of surveillance that create stark challenges for transparency and accountability by examining the relationship between language, power, and surveillance. It identifies a number of features of surveillance law, surveillance language, and the distribution of power that perpetuate the existing surveillance paradigm. Using case studies from the US, the UK, and Ireland, it assesses the techniques used to maintain the status quo of continued surveillance expansion. These jurisdictions are selected for their similarities, but also for their key constitutional distinctions, which influence how power is distributed and restrained in the different systems. Though the book maintains that the classic principles of transparency and accountability remain the best means available to limit the arbitrary exercise of government power, it evaluates how these principles could be better realised in order to restore power to the people and to maintain an appropriate balance between government intrusion and the right to privacy.

By identifying the common tactics used in the expansion of surveillance around the globe, this book will appeal to students and scholars interested in privacy law, human rights, information technology law, and surveillance studies.

1 Lost in translation and exploitation

The case of encryption

Encryption and power

It is clear that ‘secrecy is a form of power’.¹ While an individual may not always need to keep secrets in order to be autonomous, the possession of the ability to keep secrets is vital if individuals are to make truly autonomous choices.² As a central theme of this book concerns the relationship between surveillance and power, the debate over encryption provides the ideal case study to begin the analysis. The use of encryption has, after all, been at the centre of the clash between the individual’s power to keep secrets from the state and the state’s power to penetrate those secrets for several decades.³ Encryption has been defined as a ‘process of converting messages, information, or data into a form unreadable by anyone except the intended recipient’.⁴ The purpose of this process is to protect the ‘confidentiality and integrity’ of the encrypted information whether ‘in transit’ or ‘at rest’.⁵ Where ‘end-to-end’ encryption is applied, only the sender and the recipient of the message can read the communication.⁶ By designing a system to provide end-to-end encryption, technology companies are unable to comply with lawfully obtained warrants. Due to the issues this situation creates for investigative authorities, some call for the implementation of ‘backdoors’ into encrypted systems. A backdoor is a ‘secondary way of accessing the encrypted content without breaking the encryption’.⁷ Unfortunately, however, introducing backdoors to a system ‘amounts to creating a system with a built-in flaw’ that can be exploited by unauthorised third parties.⁸

To appreciate the significance of the ongoing encryption debate, it is important to briefly consider the historical context behind the ancient science of secret communication – cryptography – of which encryption is a vital branch.⁹ It has been remarked that ‘[c]ryptography rearranges power’ and attempts at cryptography – or coded messaging – are believed to be almost as old as communication itself.¹⁰ Throughout its history, cryptography has often been used to shield communications from powerful third parties. In the military context, efforts to develop unbreakable codes for the communication of sensitive information and to interpret the codes of enemy actors have been as intense as any conventional arms-race. The strategic importance of securing your secrets and exposing the secrets of others has been evident from the use of transposition ciphers by Lacedaemonian generals, to the war efforts of the cryptanalysts at Bletchley Park, to the activities of the world’s intelligence agencies today.¹¹ In this context, knowledge is, indeed, power.

Shifts in power and the ‘Crypto Wars’

Even though modern encryption techniques initially developed in the hands of competing governments seeking military or political advantage, it is now clear that encryption is an important tool for all of society.¹² The central role of the internet in modern trade, communication, and commercial transactions has necessitated the growth of encryption and its widespread adoption. While encryption offers many benefits and has been crucial to the success and expansion of the internet, any technology that enables an individual to shield the contents of their communications or stored data from malicious actors can also be used to hinder lawful government access to information. There is a clear tension between an individual’s interest in maintaining the secrecy of certain information through the use of encryption and the State’s interest in having no spaces immune from lawful authority. Vagle characterises the right to privacy in this context as having ‘everything to do with delineating the legitimate limits of governmental power’.¹³

As encryption moved from a tool solely for the most powerful, governments and law enforcement agencies attempted to resist the democratisation of the technology – notably during the 1990s ‘Crypto War’. One of the first approaches adopted by the US Government to restrict the availability of encryption was to introduce export restrictions by placing certain types of encryption on the Munitions List.¹⁴ Importantly, the export restrictions also had implications for the domestic development and use of encryption. The global market for technological products meant that many US-based companies opted to use the same (lower) standard of encryption in the domestic market as was used for the export market in order to take account of production costs and design considerations.¹⁵ Unsurprisingly, the suboptimal market conditions led to serious industry opposition and the export controls were relaxed over time.¹⁶

In another attempt to place controls on encryption, the US Government devised the ‘Clipper Chip’ programme in the 1990s. This initiative encouraged companies to voluntarily install NSA-designed microchips into the communications hardware that they manufactured.¹⁷ The intention behind the programme was that government agencies would be able to gain access to encrypted communications through a system described as ‘key-escrow’. The plan was to allow government agencies to access decrypted communications by demonstrating appropriate legal authority to secure entities that would hold the keys capable of unlocking the encrypted communications.¹⁸ The proposal was met with immediate resistance and the Clipper Chip programme failed to gain significant support or uptake by either consumers or manufacturers.¹⁹

While overt opposition to encryption was side-lined for a time, the debate has returned to the mainstream in recent years. From the summer of 2013, the Snowden revelations have been hailed as a turning point in the global debate on privacy and surveillance.²⁰ The released documents provided remarkable insight into the covert activities of global intelligence agencies. While experts had discussed the likely existence of such capabilities, the documented proof provided by the Snowden leaks provided a level of tangibility, detail, and non-deniability that was difficult for the general public to ignore.²¹ One illustration of heightened privacy awareness in the post-Snowden world is the increased level of marketing and uptake of privacy enhancing technologies at the consumer level.²² The central role of consumer focused encryption solutions in this movement is at least partially attributable to Edward Snowden. A key theme of Snowden’s earlier public statements was that ‘encryption works’.²³

In spite of a reported shift in public attitudes following the Snowden revelations, legislative reforms have been minor, and in some cases, even deleterious to privacy. Notwithstanding this, increased consumer interest in privacy has disturbed many in intelligence circles. James Comey, the former Director of the Federal Bureau of Investigation, has even suggested that the pendulum on privacy issues has ‘swung too far’ against surveillance interests.²⁴ Not only did the Snowden disclosures expose the vast intelligence capabilities and appetite of government agencies, but they also displayed the vast ‘surveillant assemblage’ comprised of government and commercial information collection. Following an initial scramble in the face of criticism on this point, many technology companies condemned government surveillance and positioned themselves as anti-surveillance allies of privacy advocates.²⁵

While the first Crypto War affirmed the importance of encryption for internet security and illustrated how cryptography had moved on from its military past, the more recent growth in consumer-friendly encryption products and services is an important signal of citizen intent to take back control over their data. A common criticism of encryption is that it can be difficult for the non-technologically savvy user to utilise, but many companies seem eager to address this gap in the market. Apple is one of the most prominent endorsers of user friendly encryption and the company sparked renewed interest in the consumer use of encryption in September 2014 when their CEO, Tim Cook, touted Apple’s ability to stymie government data requests.²⁶

Apple would do this by designing its newer products in a manner that denies Apple access to encrypted customer information held on devices.²⁷ Apple’s pro-encryption policies have been subject to much criticism by government actors.²⁸ In spite of the increased uptake of consumer encryption, for some a perception remains that encryption – outside of its commercial or government applications – is inherently suspicious. A notable example of this was exposed in documents released by Edward Snowden that revealed the NSA’s position that permitted the collection and indefinite storage of any information obtained from ‘domestic communications for cryptanalytic purposes’.²⁹ As pointed out by Vagle, this effectively meant that ‘the mere fact that data is encrypted’ was ‘alone enough to give the NSA the right to store that data (regardless of its US or foreign origin) and hold it for as long as it takes to decrypt it’.³⁰

Language and encryption

Differences of opinion regarding the ‘correct’ interpretation of language frequently arise in law. While much of what makes the relationship between language and power in the surveillance context worthy of inquiry rests on the secrecy that surrounds surveillance measures, an additional factor that cannot be underestimated is the technical nature of the subject matter. It is problematic where language is manipulated or interpreted in a way that circumvents or limits rights. The problem of restricting rights is exacerbated where the rights are limited in a manner that is obscured as citizens are denied the opportunity to protest or demand recalibration. The opportunity for manipulation increases in the context of technology where genuine understanding tends to rest with a cloistered few.

It is widely recognised that a significant proportion of the general population does not fully understand the implications of much technology that is crucial to everyday life. At times, those with the relevant knowledge seek to exploit this advantage by encouraging disengagement with the broader effects such technologies may have on other issues about which the public has an interest. Moreover, lawyers – as a general class – are often accused of technol...