AMITIAE - Friday 6 February 2015

Cassandra: Security Agencies Destroying Society Instead of Protecting (Updated)

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By Graham K. Rogers


If gangs of people or international corporations conspired together in order to create an advantage, there would be prosecutions. In the UK, for example, the laws of Conspiracy are sometimes used as a sort of gotcha catchall if the authorities think that the available legislation will not punish enough. In the USA there are RICO laws and the 3 strikes laws.

This risk that co-conspirators have does not apply to governments, especially when it comes to the new moves to cut individual freedoms because of the need to track terrorists, international criminal gangs and/or child pornographers. You can take your pick as each of these is rolled out depending on the most recent news or outrage as a way to justify any new legislation or restriction.

Some years back, the Labour government attempted to bring in what was called the Snooper's Charter: called such for good reason. The Tories were adamantly opposed to this, along with the Liberal Democrats. Once in power, the Conservatives changed their collective mind: perhaps the bureaucrats - and particularly GCHQ - are more influential than we would like to think. The Snooper's Charter allows the government authorities access to retained data without a warrant: fishing. Fortunately some are wary of this; but not all.

It was defeated, particularly as the coalition Lib-Dems wanted no part of it: a pragmatic investment for the future. Over and over, however, Teresa May brings this legislation back to the table as if no one is going to notice the stale cakes that are being served again.

The NSA revelations from Edward Snowden drove those concerned about privacy and freedoms further away from the governments' ostensibly reasonable arguments: after all, it is their job to protect; but at what cost? To some Snowden is a whistle-blowing hero, to others a traitor; but we do know more of the methods used in our name to gather information.

Those charged with the processes of collecting information to thwart the criminals push against the limits, understandably. They never accept that taking things to extremes destroys the very thing they are trying to protect (reminding one of the famous quote from the Vietnam era - We had to destroy Ben Tre to protect it). Lines must be drawn on both sides.

The balance

It is not a question of sides in reality: there is a three-way play between the needs of the authorities to defeat the criminals (terrorists, gangs, pornographers and others), with the needs that exist for proper maintenance of privacy and freedom: one group cannot be sacrificed for the other. Those in positions of power may not fully grasp this, especially if they have a military or police background.

Public enemy number one, although he may not accept this, is General Michael Hayden who really thinks he has all the answers and his way is the right way. Many were astounded by his revelation in a debate some months ago, when he said (quite jovially), "We kill people based on metadata". His semi-retraction a moment or two later, "just not this metadata" was too late: that particular cat was out of the bag.

It was clear that the government argument that was current then, that there was no need for the public to be concerned as it was only metadata that was being collected, did not hold water, especially as they wanted this retained for periods measured in years, not days or months. Britain and Australia are also concerned about access to, and retention of, metadata.

Proving himself to be more of a liability, Hayden doubled up on that recently with some comments concerning who surveillance was being conducted against. The authorities insisted that this was only those abroad who were suspected of being terrorists (perhaps) and those whom they called in the United States; but anyone that those secondary persons called might also be drawn in, like the six degrees of separation that links us all.

This week, there is a video of him at a conference where he tells people he believes that 9/11 gave him the right to re-interpret the Constitution, something that has been a common theme in some quarters in recent years. He added "let me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."

All people communicate information, even if it is the price of eggs. What Hayden admitted to in that video is what the NSA denied it was doing, and is legally forbidden to do in the United States. This however, omits those outside the USA, for whom there is no protection whatsoever from those agencies within the United States who claim the need to protect US citizens.

With the unstable ideas of Hayden - and presumably he is not alone - many people outside those agencies have become more and more concerned as they have become increasingly aware of the capabilities that those like Hayden have at their disposal; and their intentions. To protect its customers, Apple protected the data in such a way that, even if there were a warrant to open the virtual doors, Apple would have nothing to share.

Needless to say, there were howls of protest from the FBI among others, with claims that the terrorists, international criminal gangs and/or child pornographers would be able to communicate and the government would not be able to find out what the messages contained. The calls for changes in legislation were reaching new heights when the Paris murders and kidnappings took place.

After their faked photo-shoot, the politicians slipped into high gear with Britain's Prime Minister, David Cameron showing a remarkable degree of ignorance when he called for a ban on "encrypted messaging services like Snapchat and WhatsApp if British intelligence services can not access them" (Sam Frizel, Time), which led to a considerable number of derisory articles explaining how this was unworkable (e.g. Samuel Gibbs and Alex Hern, Guardian): cloud cuckoo land.

Undeterred, the Tories tried again to slip in the Snooper's Charter via the House of Lords: Britain's upper house. The attempt was defeated; but without blinking an eye, a week later, they tried again to bring in the same legislation that has been stopped again and again.

In one revealing comment, Lord King (a former defence secretary) said, "I am not a tweeter, but we've got Facebook, we've got Twitter and somebody tried to explain to me what WhatsApp is, somebody else tried to explain to me about Snapchat. My Lords, I don't know about them, but what is absolutely clear is that the terrorists and jihadists do".

What is clear from that, is that those who are empowered to legislate do not have a clue about what they are talking about. King was supported by Lord Paddick, a former Metropolitan police and two other peers (Alan Travis, Guardian).

Also in Britain, despite being ordered to destroy DNA, photographs and fingerprints of people found innocent of offences for which they were charged, this apparently not been done. However, those opposed to excessive spying on individuals have an ally in Sir Anthony May, the interception of communications commissioner, who criticised police for using anti-terror legislation to obtain the phone records of journalists (Joshua Rozenberg and Josh Halliday, Guardian).

Not to be outdone, the Australians - another part of the group of 5 (Australia, Canada, New Zealand, UK, USA) who have been conspiring long before they came up with Echelon - decided to push a piece of legislation that bears a remarkable similarity to the UK Snooper's Charter, including warrantless retention of metadata.

This was just days after Prime Minister Abbott fared badly at the polls and just before he was expected to be removed from head of the party (and also PM). It was almost as if sensing a moment about to pass, the law was put in front of Parliament in a last ditch attempt to push it through, despite the strong arguments put forward by those such as Dr Keiran Hardy and Professor George Williams of the Gilbert + Tobin Centre of Public Law, University of New South Wales.

As a fitting conclusion, I have updated this item to include the opening sentences of a Guardian Editorial for 6 February 2015:

Libertarians and hawks will disagree about what intelligence agencies should be licensed to do, but both should surely agree that they shouldn't break the law. A court ruled . . . however, that, in its dealings with the NSA, GCHQ had done that.

Sane heads do exist, but the real dangers may really be coming from those who, with the stated best intentions, may end up destroying society to save it.

Graham K. Rogers teaches at the Faculty of Engineering, Mahidol University in Thailand where he is also Assistant Dean. He wrote in the Bangkok Post, Database supplement on IT subjects. For the last seven years of Database he wrote a column on Apple and Macs. He is now continuing that in the Bangkok Post supplement, Life.



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