News and analysis on internet regulation

Internet stakeholders discuss possible reactions to spying programme

03 Jul 2013 by Monika Ermert on PRISM
in the category Privacy & Security

While the sixth European Dialogue on Internet Governance (EuroDIG) in Lisbon unfolded (June 20-22, 2013), latest Prism programme revelations trickled in. Some participants discussed cross-national lawsuits, other, like Portugal's Attorney General representative, argued in favour of making the exchange of cross-border intelligence data more “flexible.” Google employees, themselves standing in the line of fire, warned about a possible breach of confidence affecting corporations and governments. EuroDIG is the European arm of the United Nations’ Internet Governance Forum.

The wiretap operations have the potential to compromise many fundamental rights, such as those expressed in the European Convention on Human Rights, declared Sophie Kwasny, lawyer at the Council of Europe. Not only is the right to privacy (Art. 8) at play, she said, but also the right to express yourself free of state interference (Art. 10) and the right for an effective remedy for violations of fundamental rights (Art. 13), as well as others. The secrecy about the all-around surveillance of European citizens, that was only revealed through the disclosures made by whistle-blower Edward Snowden, calls into question the enforcement of fundamental human rights.

Lawsuits against states

A lawsuit against Great Britain for violating the European Convention on Human Rights would be a logical route to take, says Matthias C. Kettemann, expert in international law at the University of Graz, during a spontaneously organised discussion around surveillance and human rights.

Such a cross-national lawsuit at the European Court of Justice for Human Rights, on the grounds of illegal domestic wiretap activities of helping the US secret service could rapidly lead to a decision. Lawsuits by individuals need to take the long road through domestic courts in European countries. Going after the US is deemed difficult by most experts, since this country does not recognise the International Court of Justice. Much more promising would be a reference to the human rights committee of the United Nations. What’s more, the US recently supported a statement on free speech and the free flow of information on the internet that was introduced by Sweden.

The Swedish ambassador, Olof Ehrenkrona, told a few truths. Sweden surveils the entire internet traffic coming in and going out of Sweden. A lawsuit against the highly controversial Swedish FRA legislative package was already introduced to the European Court of Justice for Human Rights. Ehrenkrona welcomed the Prism discussion, let alone because of the new technologies that have dramatically  changed the surveillance of communications. The Swedish diplomat agreed with human rights advocates that the line between secret service and law enforcement is increasingly blurry.

Prosecutors want more flexible exchange in data

“The trend is going towards big data”, warns Meryem Marzouki both a researcher at the French Centre national de la recherche scientifique (CNRS) and an activist at European Digital Rights (EDRi). In Lisabon, Marzouki was not alone in pointing out recommendations by some countries that would want to see the Council of Europe’s Convention on Cybercrime beefed up, so as to include provisions allowing access to data in computer networks on the domestic territory. The Cybercrime Convention Committee has submitted several options (PDF), where even extraterritorial access without consent of concerned authorities is rendered possible. Prosecutors at the FBI, but also at the NSA (and other secret services) would thereby be guaranteed an access to internet data.

This latest development is directly related to the spread of cloud computing. Conventional collaboration on law enforcement treaties is simply dépassé, argued Pedro Verdelho, from the cybercrime bureau of the Portuguese Attorney General. On the EuroDIG panel on cybercrime, Verdelho held the Cybercrime Convention in high esteem. Many non-members of the Council of Europe, among them, the US, have signed the convention. It holds its own, thereby putting in check any competing UN convention on cybercrime, such as supported by Russia. A Russian representative rejected the Cybercrime Convention. Countries would be better advised to adopt the NATO-developed Tallin Manual, he added.

The European Commission has put cloud computing on the agenda of the US-EU free trade agreement negotiations, Linda Corugedo Steneberg, Director of the Commission’s DG Connect said (also see this). Multi-lateral discussions around the theme of cloud computing are important, and this is why the evolving fora such as EuroDIG and the Internet Governance Forum (IGF) are crucial.

The end of state sovereignty and the global public interest

Questions related to the end of state sovereignty in cyberspace – and of the usurpation of sovereignty outside of state borders, are at the heart of EuroDIG und the IGF. In Lisbon, many plenaries debated alternatives to conventional national law.

“Horizontal problem-solving“ is more effective than top-down or bottom-up regulation, the President and CEO of the Internet Corporation for Assigned Names and Numbers (ICANN), Fadi Chehade, said. He described his own organisation as the most advanced form of self-managed global multi-stakeholder model. But there too, at ICANN, a fight over the balancing or views of all stakeholders is unravelling. Only weeks ago, the organisation released the governmental advisory board’s demands. The idea is to avoid giving governments the last word on top-level domain name management, without other stakeholders having had a change to provide their input.

This being said, Thomas Schneider, representative of the Swiss regulator Bakom, insisted that these consultations are mainly the domain of corporate entities. Demands by civil society actors are most often left aside. Would it be better to involve users directly in the self-management of large internet platforms? Or, would this be the first step towards the capitulation of the nation state in cyber space – at least for what concerns the protection of users, never mind mass surveillance?

Interestingly, it is German liberal-democrat Jimmy Schulz, a parliamentarian, who from the first row in Lisabon encouraged users to self-protect with the use of cryptography and communication obfuscation techniques. A former UN diplomat also raised the importance of taking into account the public interest beyond nation states and international organisations.

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The global public interest is not the sum of all national interests and it thereby cannot be defined by a conference of diplomats, said the former Swiss representative to the UN and IGF Secretary, Markus Kummer. Now, Vice President of Public Policy at the Internet Society, Kummer insisted that “the global public interest can best be defined by the people.”

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