Journalistic freedom and the surveillance of journalists post-Snowden

A paradigmatic shift is sometimes revealed by an unanticipated and extraordinary event, and so it was with Edward Snowden in 2013. A National Security Agency (NSA) contractor, Snowden was so appalled at the exponential expansion of covert digital surveillance that he decided it was his moral duty to inform the public, indeed the world. This he did from a hotel room in Hong Kong when he gave a small group of selected journalists access to 1.7 million classified documents taken from the NSA. These documents revealed the global snooping capabilities of the NSA and its ‘Five Eyes’ intelligence agency partners (ASIO in Australia, CSE in Canada, GCSB in New Zealand, and the GCHQ in United Kingdom). The Five Eyes can vacuum up just about all digital communications anywhere, anytime, and much else besides if they are so minded. Many who take a deep interest in signals intelligence thought these Anglo-Saxon agencies had probably increased their capabilities since 9/11, but even they were shocked when Snowden revealed the sheer scale – it far exceeded any estimate of capability

Privacy as a Public Good

Privacy is commonly studied as a private good: my personal data is mine to protect and control, and yours is yours. This conception of privacy misses an important component of the policy problem. An individual who is careless with data exposes not only extensive information about herself, but about others as well. The negative externalities imposed on nonconsenting outsiders by such carelessness can be productively studied in terms of welfare economics. If all relevant individuals maximize private benefit, and expect all other relevant individuals to do the same, neoclassical economic theory predicts that society will achieve a suboptimal level of privacy. This prediction holds even if all individuals cherish privacy with the same intensity. As the theoretical literature would have it, the struggle for privacy is destined to become a tragedy. But according to the experimental public-goods literature, there is hope. Like in real life, people in experiments cooperate in groups at rates well above those predicted by neoclassical theory. Groups can be aided in their struggle to produce public goods by institutions, such as communication, framing, or sanction. With these institutions, communities can manage public goods without heavy-handed government intervention. Legal scholarship has not fully engaged this problem in these terms. In this Article, we explain why privacy has aspects of a public good, and we draw lessons from both the theoretical and the empirical literature on public goods to inform the policy discourse on privacy

Internet Surveillance after Snowden: A Critical Empirical Study of Computer Experts' Attitudes on Commercial and State Surveillance of the Internet and Social Media post-Edward Snowden

Acknowledgement: The research presented in this paper was conducted as part of the EU FP7 research project PACT (http://www.projectpact.eu), grant agreement number 285635

Understanding digital intelligence and the norms that might govern it

Abstract: This paper describes the nature of digital intelligence and provides context for the material published as a result of the actions of National Security Agency contractor Edward Snowden. It looks at the dynamic interaction between demands from government and law enforcement for digital intelligence, and at the new possibilities that digital technology has opened up for meeting such demands. The adequacy of previous regimes of legal powers and governance arrangements is seriously challenged just at a time when the objective need for intelligence on the serious threats facing civil society is apparent. This paper suggests areas where it might be possible to derive international norms, regarded as promoting standards of accepted behaviour that might gain widespread, if not universal, international acceptance, for the safe practice of digital intelligence

Personal Data Security: Divergent Standards in the European Union and the United States

This Note argues that the U.S. Government should discontinue all attempts to establish EES as the de facto encryption standard in the United States because the economic disadvantages associated with widespread implementation of EES outweigh the advantages this advanced data security system provides. Part I discusses the EU\u27s legislative efforts to ensure personal data security and analyzes the evolution of encryption technology in the United States. Part II examines the methods employed by the U.S. Government to establish EES as the de facto U.S. encryption standard. Part III argues that the U.S. Government should terminate its effort to establish EES as the de facto U.S. encryption standard and institute an alternative standard that ensures continued U.S. participation in the international marketplace

Data Nationalism

A BRICS Internet, the Euro Cloud, the Iranian ¿Halal¿ Internet: Governments across the world eager to increase control over the World Wide Web are tearing it apart. Iran seeks to develop an Internet free of Western influences or domestic dissent. The Australian government places restrictions on health data leaving the country. Russia requires personal information to be stored domestically. Vietnam insists on a local copy of all Vietnamese data. The last century¿s nontariff barriers to goods have reappeared as firewalls blocking international services. Legitimate global anxieties over surveillance and security are justifying governmental measures that break apart the World Wide Web, without enhancing either privacy or security. The issue is critical to the future of international trade and development, and even to the ongoing struggle between democracy and totalitarianism. The theory of this Article expands the conversation about international Internet regulation from efforts to prevent data from flowing in to a country through censorship, to include efforts to prevent data from flowing out through data localization. A simple formula helps demonstrate what is stake: censorship + data localization = total control

Social Media and the Internet: A Story of Privatization

This article will question what role private and public actors assume in the current structure of data collection and what potential rights are violated. To tease out the relationship between the private and government sectors, this article, for sake of argument, accepts as fact that surveillance is a core government function and that data is a public resource collected by private organizations. While those assumptions may be challenged by different definitions of what constitutes a public function, public resource, or mode of collection, this article does not take on those challenges. It also does not ask the normative question of whether data collection should cease or the descriptive inquiry of whether data collection could even be halted if the public wanted it to be. Rather, this article simply examines the structure surrounding data collection in terms of privatization, and asks whether certain legal doctrines may be triggered, including the Fourth Amendment. To do so, this article will first set out a definition of a privatization and use the military as an example. In Section II, the article will then engage in a short history of the Internet to show how electronic data collection was a core government function later “privatized” by Silicon Valley corporations. Section III will then explain how this dynamic between private and public oversight raises Fourth Amendment concerns. Finally, the Conclusion will then set out suggestions for the future, including a potential justification for new privacy rights