As we pine for a digital Magna Carta or a digital Bill of Rights, the scale of the problem is daunting.
Part of the problem lies at home. It rears its head when the National Security Agency searches domestic calls, emails, and data that are “incidental” to its surveillance of foreign-intelligence targets but takes liberties in doing so. Or it arises when the NSA shares information from these special surveillance programs with domestic law-enforcement agencies who use it in their ordinary criminal investigations and lie about it. That story broke last August (as we covered here), but it may be the tip of the iceberg because this August, we learned that the NSA has created a “Google-like” search engine called ICREACH that gives 23 agencies, including the FBI and the DEA, access to its massive trove of records. It’s unclear how often ICREACH is used to facilitate ordinary, domestic criminal investigations. Or the problem arises at home when (and if) the NSA (or another agency) tries to intimidate those who report on these revelations. We’re better than that.
Part of the problem, however, lies abroad. It begins with the fact that the broader intelligence community that we exchange information with—the “IC” in ICREACH—includes foreign countries. Our agreements with five close allies form the Five Eyes: Canada, Australia, New Zealand, the United Kingdom, and the United States. Our looser agreements with a few other partners make up the Nine Eyes, which include the Five Eyes plus France, Denmark, Norway, and the Netherlands, and the Fourteen Eyes, which include the foregoing plus Germany, Spain, Sweden, Italy, and Belgium. These agreements may be necessary, but they threaten to gut all legal process because they permit each government to spy on its own citizens through the proxy of its foreign partners. One doesn’t even have to ask; one can just have a foreign partner offer the information, and at that point, what intelligence service worth its salt would say no?
Of course, we’re not just among friends in the world, either. We must contend, potentially, with every government in which major telecommunications companies do business. In June, for example, the world’s second-largest cellular carrier, Vodafone, published a report that revealed the millions of data requests it receives from governments all over the world. The company’s networks cover most of Europe and parts of Asia and Africa, including places like Egypt, Ghana, Kenya, Turkey, Qatar, and Mozambique. Some of the 29 countries in which Vodafone does business forbade the company from publishing their numbers, while six unspecified nations supplied no numbers because they didn’t need to make requests; they have “permanent access to customer communications via their own direct link.” If you’re wondering whether you read that right, you did. If you think that sounds like some governments tap directly into Vodafone’s data at will, well, you’re not alone.
Says one expert: “It is a healthy reminder that no amount of legal reform in the United States will solve the problem if there isn’t an international solution.”
Indeed. The problem is ubiquitous, and it may be coming to us all as the burgeoning surveillance industry makes advanced spying technology available worldwide, including commercially available worldwide, and ever more available over time. In the words of one concerned citizen, “Any tin-pot dictator with enough money to buy the system could spy on people anywhere in the world.” And that’s only the status quo.
So it’s an international problem that requires an international solution. And I’m afraid we’re not ready.
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