FacebookTwitterGoogle+RedditEmail

The Legal Claim Against Surveillance

by

People have a fundamental right to communicate with each other free from pervasive government surveillance. The right to communicate, and the ability to choose to do so secretly, is essential to the open exchange of ideas which is a cornerstone of a free society.

– Devin Theriot-Orr, Riseup.net, July 2014

Can you take a signals intelligence agency to court, or at the very least, something approximating to it? Various bodies have been putting their minds together, considering the formidable obstacles, the endless riddling hoops. Last week, they lodged a claim before Britain’s Investigatory Powers Tribunal against both the UK’s GCHQ and the Foreign and Commonwealth Office (FCO), arguing that the former’s targeting of Internet service providers was illegal, destructive and retarding of the goodwill such providers rely upon.

Ultimately, such interference on the part of GCHQ cripples the very functioning of the Internet, a true violation of associated freedoms of use. As Privacy International’s Deputy Director, Eric King, explains, “These widespread attacks on providers and collectives undermine the trust we all place on the internet and greatly endangers the world’s most powerful tool for democracy and free expression.”

The claimants are a varied, international assortment, though it is worth noting that they are far from the premier league of ISPs. The collective exudes internet activism and a bookish but important concern for liberties, including RiseUp (US), GreenNet (UK), Greenhost (Netherlands), Mango (Zimbabwe), Jinbonet (South Korea), May First/People Link (US), the Chaos Computer Club (Germany), and Privacy International. They are using the services of Bhatt Murphy lawyer Shamik Dutta, and Blackstone Chamber’s Ben Jaffey and Tom Cleaver.

The specific legal details won’t make the legal layman’s eyes glaze over. They should, however, chill and anger the blood in equal measure. They have privacy implications not merely for the users of the ISPs in question, but the staff who work for those companies.

The alleged breaches of such conduct on the part of GCHQ suggest something fundamental to the everyday user of ISPs: the violation of Article 1 of the First Protocol, and Articles 8 and 10 of the European Convention on Human Rights (ECHR). Such provisions, in addition to affirming rights of free speech and privacy, make it clear that any interference is only warranted “in accordance with the law”, “prescribed by law”, or “subject to the conditions provided for by the law” and must be consistent with the principles of a democratic society and proportionate to such ends.

The source of the claim lay in articles published in The Intercept and Der Spiegel. Specific instances include the targeting of employees of Belgacom, who were affected by malware via an attack termed “Quantum Insert”. The basis of that was, unsurprisingly, to gain access to material pertaining to the infrastructure network. According to the report, GCHQ were “on the verge of accessing the Belgians’ central roaming router.” In doing so, the agency would have been able to stage complex “Man in the Middle” (bypassing encryption software) attacks on smartphone users.

The viral and biological metaphor here is never far away – much of the capabilities which concern the claimants centre on the rendering of communications infrastructure vulnerable to infection. Denude the network; gather the information. “Man on the Side”, for instance, involves the covert injection of data into, as Privacy International’s statement explains, “existing data streams in order to create connections that will enable the targeted infection of users.”

According to the claim, the attack of network infrastructure “enables GCHQ to undertake a range of highly invasive mass surveillance activities, including the application of packet capture (mass scanning of internet communications); the weakening of encryption capabilities; the observation and redirection of internet browsing activities; the censoring or modification of communications en route; and the creation of avenues of targeted infection of users’ devices.”

Again, GCHQ has shown that the banal and the irrelevant are worthy of its intrusive efforts. Data is data, and it must be snatched, however disproportionate the measures. As the claim states, “What is more concerning is that the conduct set out… has no proper justification. Each of the Claimants is a responsible and professional internet service provider. None has any interest in supporting terrorist activity or criminal conduct.” Discrimination has little to do with it, for the modern fetish of mass surveillance is that something, somewhere, is relevant.

As Cedric Knight of GreenNet explained to RT (Jul 3), “It seems that GCHQ has been deliberately targeting the ordinary technical staff who tried to protect network security, to try to find personal weaknesses and the weakness in the security systems they put in place.”

There are big questions that remain, those teething problems of taking public interest cases before a tribunal without necessarily proving tangible damage. The claimants admit that they may or may not have been affected, but that the interactive nature of the Internet and such surveillance suggests a high probability that they have been.

This has been the greatest boon for intelligence services – that hallowed insistence that those who seek judicial remedy prove actual harm. Then there is the question about how far a body such as the IPT will go. According to Knight, the IPT “doesn’t give much details of its investigations if any at all.”

GCHQ may get a slap on its capacious wrist, but that it should get a slap at all might be a miracle. The claimants are aiming high: a declaration that GCHQ’s intrusive conduct is unlawful; an order of destruction of “any unlawfully obtained material” and an injunction restraining further unlawful conduct. As Knight argues, a first step in such an action is to have an open hearing of such claims at all.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Weekend Edition
April 29, 2016
Friday - Sunday
Andrew Levine
What is the Democratic Party Good For? Absolutely Nothing
Roberto J. González – David Price
Anthropologists Marshalling History: the American Anthropological Association’s Vote on the Academic Boycott of Israeli Institutions
Robert Jacobs
Hanford, Not Fukushima, is the Big Radiological Threat to the West Coast
Ismael Hossein-Zadeh
US Presidential Election: Beyond Lesser Evilism
Dave Lindorff
The Push to Make Sanders the Green Party’s Candidate
Peter Linebaugh
Marymount, Haymarket, Marikana: a Brief Note Towards ‘Completing’ May Day
Ian Fairlie
Chernobyl’s Ongoing Toll: 40,000 More Cancer Deaths?
Pete Dolack
Verizon Sticks it to its Workers Because $45 Billion isn’t Enough
Moshe Adler
May Day: a Trade Agreement to Unite Third World and American Workers
Margaret Kimberley
Dishonoring Harriet Tubman
Deepak Tripathi
The United States, Britain and the European Union
Eva Golinger
My Country, My Love: a Conversation with Gerardo and Adriana of the Cuban Five
Richard Falk
If Obama Visits Hiroshima
Vijay Prashad
Political Violence in Honduras
Paul Krane
Where Gun Control Ought to Start: Disarming the Police
David Anderson
Al Jazeera America: Goodbye to All That Jazz
Rob Hager
Platform Perversity: More From the Campaign That Can’t Strategize
Pat Williams
FDR in Montana
Dave Marsh
Every Day I Read the Book (the Best Music Books of the Last Year)
David Rosen
Job Satisfaction Under Perpetual Stagnation
John Feffer
Big Oil isn’t Going Down Without a Fight
Murray Dobbin
The Canadian / Saudi Arms Deal: More Than Meets the Eye?
Gary Engler
The Devil Capitalism
Brian Cloughley
Is Washington Preparing for War Against Russia?
Manuel E. Yepe
The Big Lies and the Small Lies
Robert Fantina
Vice Presidents, Candidates and History
Mel Gurtov
Sanctions and Defiance in North Korea
Howard Lisnoff
Still the Litmus Test of Worth
Dean Baker
Big Business and the Overtime Rule: Irrational Complaints
Ulrich Heyden
Crimea as a Paradise for High-Class Tourism?
Ramzy Baroud
Did the Arabs Betray Palestine? – A Schism between the Ruling Classes and the Wider Society
Halyna Mokrushyna
The War on Ukrainian Scientists
Joseph Natoli
Who’s the Better Neoliberal?
Ron Jacobs
The Battle at Big Brown: Joe Allen’s The Package King
Wahid Azal
Class Struggle and Westoxication in Pahlavi Iran: a Review of the Iranian Series ‘Shahrzad’
David Crisp
After All These Years, Newspapers Still Needed
Graham Peebles
Hungry and Frightened: Famine in Ethiopia 2016
Robert Koehler
Opening the Closed Political Culture
Missy Comley Beattie
Waves of Nostalgia
Thomas Knapp
The Problem with Donald Trump’s Version of “America First”
Georgina Downs
Hillsborough and Beyond: Establishment Cover Ups, Lies & Corruption
Jeffrey St. Clair
Groove on the Tracks: the Magic Left Hand of Red Garland
Ben Debney
Kush Zombies: QELD’s Hat Tip to Old School Hip Hop
Charles R. Larson
Moby Dick on Steroids?
David Yearsley
Miles Davis: Ace of Baseness
FacebookTwitterGoogle+RedditEmail