GUEST OPINION: Privacy: it's worth fighting for

Jordan Carter

Twelve months ago on Friday last week, a then-unknown NSA analyst released a trove of documents that has impacted the world in a way that is usually the domain of religious screeds.

Edward Snowden has claimed he was appalled at the level of surveillance being conducted by US and other government operatives on civilians and other world leaders. Beset by a sense of civic duty, he leaked a vast quantity of information that is continuing to come out today. In doing so, he created a global conversation that remains unresolved.

Ever since 9/11 and the subsequent passing of the Patriot Act in the US, society has increasingly been asked, or forced, to allow a number of infringements on civil rights in the name of security. Airport checks have become quite burdensome, drone killings have occurred more frequently and we tacitly understand that our data is not necessarily our own – and that in the online world, privacy is at risk of being illusory at best. 

Governments are using our data for more than commerce. The knowledge of this widespread observation of life online has, to put it mildly, caused a fuss.

New Zealand’s place in all this is unclear. There was a stoush between the technical and the local intelligence communities last year when the controversial GCSB and TICSA Bills were passed despite widespread opposition from groups including InternetNZ, Tech Liberty and the Auckland District Law Society. That legislation opened up the capacity of the Government Communications Security Bureau to work on domestic intelligence matters and, among other things, also required local providers to be able to unlock encryption services. The treatment of metadata in the new regime is also unclear and is awaiting a further review.

The broader context within which New Zealand’s activities are happening is also critical to bear in mind. This country is part of the “5-Eyes” network; New Zealand, the US, Australia, Canada, and the UK, which have joined together to create a global spy network. Recent leaks have called into question New Zealand’s level of involvement, particularly in light of a New Zealander being killed by drone strikes in Yemen following the provision of intelligence by New Zealand operatives.

The technical: security

There are two broad levels of concern this whole situation gives rise to. Looking first at the technology situation, I join others in sharing serious concerns with the suggestion that various internet security protocols were weakened to allow easier intelligence gathering, and that as a result it is easier for ordinary, law abiding New Zealanders to be caught in these “driftnets” of mass surveillance, simply by using common, everyday internet services. 

More specifically: the leaks allege that deliberate steps taken by government agencies involved in internet protocol development have led to the weakening of security protocols and placing back doors into commonly used equipment – which exposes internet users to third party risks in addition to surveillance by intelligence agencies.

This technological abuse is not what the internet was designed for and undermines its potential as a system that can be harnessed for building better lives and prospects. It would be a travesty were the actions of states to eventually turn an open internet that is a platform for growth and change into a modern-day panopticon (as the Reset the Net coalition has highlighted). Unregulated, ineffective mass surveillance shakes people’s confidence – and they will not use the internet to its fullest potential.  

Some of these allegations have been substantiated; others remain unverified assertions. Even given the lack of confirmation of many of the claims made, there is a need for the case to constantly be made to those responsible: don’t break the technology, and don’t violate our privacy.

In dealing with these issues, we are guided by our policy principles. The relevant ones to this matter are that the internet should be open and uncapturable, and that the internet, being nationally important infrastructure, should be protected. Those principles cannot be upheld in a world where mass surveillance efforts are being advanced by breaking internet technology or outlawing its availability to citizens going about their lawful business.

The social: privacy

What about the broader picture, the social impact of these practices? For me, there is a basic bottom line. Human rights should apply online. A critical right is to that of privacy. Mass surveillance and some of the legislation introduced in recent years challenge the principled view and practical arguments supporting the right to privacy for internet users  and that as a consequence of this right being upheld that internet communications should not generally be intercepted or read by third parties. Technology that allows users to remain private should not be outlawed. In 1890 US Justice Louis Brandeis famously referred to the “right to be let alone.” The UN Declaration on Human Rights written in 1948 includes a right to privacy. This right is as important today as it was when Judge Brandeis wrote – it needs to be protected and promoted.

There is a wealth of research that sets out the impacts of the “watcher effect” on normal human behaviour. Mass untargeted surveillance is not consistent with the norms or values of a free and democratic society. Full stop. We don’t want to live in a society with the internet equivalent of Big Brother always at the back of our minds.

Simply because a technology exists, does not mean it has to be used. While much of our lives online play out on services that treat us individually as customers, and make use of the data to market things back to us, that is simply the world of commerce at work. There is a fundamental difference between a private sector company using data and the state collecting it: as far as I know, Facebook can’t throw me in jail. The government can. 

The challenge that governments face, including the New Zealand government to the extent it is involved, is to turn away from the temptation of mass surveillance systems. If they are in use, they should no longer be used; if they are being operated, they should be shut down.

Keep the internet open and uncapturable

I think most of us accept there is a role for surveillance in a free and democratic society. Tightly targeted interception and surveillance, authorised by warrants from courts independent of the intelligence community, are an inevitable part of modern life. Mass indiscriminate data collection and surveillance operations are not and should not become so. 

We’re debating these issues within InternetNZ and working out how to reflect the importance of standing up for an open and free internet in our work. As you’d expect, there are a wide range of views on the table. What unites us all is a simple argument: that the internet’s benefits and uses should not be compromised by mass surveillance. It’s really as simple as that. We can’t have a better world without a better internet. It’s time to stop making the internet worse for everyone, which is the only outcome mass surveillance achieves.

Our interest first and foremost is to preserve the function of the internet as a tool for free communication and an enabler of greater rights and freedoms than has been achievable ever before in human history. As the kitsch 1970s musical version of War of the Worlds put into lyrical prose – it’s “something worth fighting for.”

Jordan Carter is chief executive of InternetNZ.

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