Irish Centre for Human Rights Blog

The ICHR welcomes this post by Poonam Shokar, doctoral researcher at the Irish Centre for Human Rights.

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Introduction

The Snowdon leaks revealed the activities of intelligence agencies such as the NSA tapping the phone conversations of Heads of State such as Angela Merkel (Dittmer, 2015).  As a result there has been wide spread condemnation of surveillance practices carried out by counter terrorism agencies, noting the wide scope of power provided to them through anti-terror legislation to the point where it encroaches on individual liberty and has widened the scope of criminalisation (Lowe, 2014, 653). For example, section 28 (3) of the Regulatory Powers Act 2000 (RIPA), allows a court to grant investigatory powers to specific agencies to conduct surveillance in the name of national interests (Ibid, 2014) including criminalising ‘terrorist acts’ and authorising intelligence organisations to adopt special investigative measures and detain suspects.

The ‘Five Eyes’ programme (FVEY) otherwise known as the UKUSA agreement refers to the surveillance carried out by the relevant agencies of the US (SIGNIT & NSA), UK (GCHQ), Canada (CSE) New Zealand (GCSB) and Australia (DSD) utilising “their geographic positions and technical proficiencies to massively collect information about the global population’s use of electronic communications” (Parsons, 2015, 609). 

As the controversy of the growth of surveillance mechanisms and its impacts on human rights has been extensively discussed, the history of the FVEY programme will be explored to understand how it has grown to such an extent internationally. Doing so will provide insight into how the encroachment of human rights has occurred including its justification. 

Feeding the Surveillance Monster

The First World War (WW1) saw the creation of “a new form of reason embodied by… the spirit of organisation” (Mattelart, 2010, 32) where the state for the first time internationally engaged in utilising the monopoly of violence abroad, utilising weapons, machinery as well as curtailing the rights and individual freedoms of their own citizens in the name of security.  

 With the conclusion of WWI, the shift from a state of emergency to normalcy presented a challenge for states involved in WW1 as they now had to incorporate the military and state powers of violence into peacetime where the notion of the ‘state’ was no longer under threat.  

The theory of the ‘Master’s Voice’ encapsulates that state hegemony evaporated with the ending of WW1, given there being no heightened need for war or the protection of the State from threat. Therefore, public opinion was influenced by other sources such as the media during peacetime. In an attempt to regain control of mobilising public opinion, the State began increasing the censorship of its media, implementing legislation on sedition and treason to protect the identity of the State and manipulate public opinion in a manner favourable to the State’s desires and policies (Ibid, 2010). 

The Second World War (WW2) proved influential in the formation of surveillance states, especially within the US, where the current FVEY programme initially developed. After WW2, the UK and US became closer allies. The 1943 BRUSA agreement aided in fostering a system of intelligence-gathering whereby the activities of enemy States and their public agencies would be monitored to observe and maintain the balance of power internationally. 

Compared to the prior war, the international community had seen the extent to which an extreme ideology can cause irreparable harm. Similar to a battle of ‘good’ versus ‘evil,’ the conclusion of  WW2 introduced the US into the international community where it found it not only could engage, but also influence the ideology to be utilised globally and undermine other competing ideologies, as can be seen during the Cold War. The US and the then Soviet Union engaged in “techno-scientific conflicts in which operational research and innovation were constantly used to transform the tactical, strategic, and logistical battle of forces” (Ibid, 2010, 54).

Technological advances and globalisation permitted the US to further hone its surveillance techniques and form closer ties with the UK, which also had developed its own intelligence agencies such as the GCHQ. A secret agreement was formalised in 1947 to harmonise intelligence networks with other Anglo-Saxon countries through the Five Eyes Alliance, utilising programmes such as ECHELON which intercepted transmissions, using supercomputers to flag up any messages containing key words listed in the so-called Echelon ‘dictionaries’ (Perrone, 2019).  This exchange of information allowed the US to harbour and exchange information on domestic and foreign populations without being directly associated with carrying out surveillance. It also allowed a further harmonisation of international surveillance allowing each country access to each member’s resources and intelligence strong holds that were not prior available to them (Patman and Southgate, 2015). 

9/11  

9/11 further consolidated the international surveillance system, as the threat of terrorism no longer could be contained within borders. This threat represented an ‘incoherent identity’ (Mullard and Cole, 2007)  and ‘ticking time bomb’ where the fear and paranoia of ‘who’ and ‘when’ was utilised in government strategy to make the invasion of privacy acceptable to catch terrorist activity.  

When we look to 9/11, we can understand the importance of national security to States. The fear, pain and instability of these acts of terror threaten not only democracy but also the identity and cultural foundations of the State.  As mentioned by Agamben (2003, 70) “anarchy… must be ritualised and controlled, transforming the state of exception into public mourning and mourning into iustitium” (suspending juridical order). Thusly we see that it is the state responsibility to utilise violence in whichever means to combat instability and disorder. Overnight we saw the development of Bush’s strategy on the ‘War of Terror’ and the implementation of the Patriot Act 2001, which “effectively expanded the government’s authority to spy on its own citizens and reduced checks and balances on its own powers such as judicial oversight” (Baird, Rosenbaum and Darmer, 2005). 

This resilience to carry out the ‘War on Terror’ was effective in mobilising both the domestic and international community. World leaders such as former President Bush and PM Blair have had great influence over the way in which the international community has implemented counter-terrorism measures (Hamilton, 2002). 

Former PM Blair advocated the ‘doctrine of international community’. In his 2006 speech to the Foreign Policy Centre he mentioned the interdependence of the international community and stressed that “unless we articulate a common global policy based on common values we risk chaos threatening our stability, economic and political, through letting extremism, conflict or injustice go unchecked” (Mullard and Cole, 2007,125-127). Blair’s concept further fomented a global risk society where the international community further harmonised their mass surveillance networks. 

The enrolment of popular search engines such as Google, Yahoo! and Quantum Insertion etc. in providing data on private communications to those part of the UKUSA agreement (Dittmer, 2015) demonstrates how far a reach the ‘War on Terror’ has had into the private lives of its citizens.  

The combination of various international covenants such as the  1999 International Convention for the Suppression of  the Financing of Terrorism and 1997 International Convention for the suppression of Terrorist Bombing, condemning various acts of terror from perpetration to funding and permits Member States to take steps necessary to prevent acts of terrorism through domestic legislation and administrative protocols, such as freezing assets of individuals financing terrorism (Un.org).  International Conventions such as this demonstrate that, internationally, everything is being done to be able to hold perpetrators of terrorism account which allows for national governments to define criminality and deviance at domestic level. 

In terms of surveillance, it becomes impossible for an individual to know whether personal data such as their search history and communications could be considered worthy of investigation and when they are being observed.  Intelligence-gathering communities have been able to operate covertly with little judicial and public scrutiny. As we can see now how the surveillance initiative grew over time internationally, the emergence of ‘noopolitik’ (Mattelart, 2010), a hegemony of knowledge as to how the world is operating, has led to a pervasive encroachment of civil liberties of citizens in terms of detainment and criminalising activity. Though policies are at State discretion, it is difficult to ignore how the growth of an international surveillance system has contributed to giving governments a larger toolkit in utilising its monopoly of violence to protect the State. 

Bibliography

Agamben, G. (2003). State of exception. Chicago: University of Chicago Press.

Baird, R., Rosenbaum, S. and Darmer, M. (2005). Civil liberties vs. national security in a post-9/11 world. Amherst, N.Y.: Prometheus Books

Dittmer, J. (2015). Everyday Diplomacy: UKUSA Intelligence Cooperation and Geopolitical Assemblages. Annals of the Association of American Geographers, 105(3), pp.604-619.

Hamilton, S. (2002). September 11th, the Internet, and the effects on information provision in Libraries. In: 68th IFLA Council and General Conference. [online] IFLA. Available at: https://files.eric.ed.gov/fulltext/ED472844.pdf.

Lowe, D. (2014). Surveillance and International Terrorism Intelligence Exchange: Balancing the Interests of National Security and Individual Liberty. Terrorism and Political Violence, 28(4), pp.653-673.

Mattelart, A. (2010). The Globalisation of Surveillance. Polity Press.

Mullard, M. and Cole, B. (2007). Globalisation, citizenship and the war on terror. Edward Elgar Publishing Limited.

Parsons, C. (2015). Beyond Privacy: Articulating the Broader Harms of Pervasive Mass Surveillance. Media and Communication, 3(3).

Patman, R. and Southgate, L. (2015). National security and surveillance: the public impact of the GCSB Amendment Bill and the Snowden revelations in New Zealand. Intelligence and National Security, 31(6), pp.871-887.

Perrone, J. (2019). The Echelon spy network. [online] the Guardian. Available at: https://www.theguardian.com/world/2001/may/29/qanda.janeperrone.

Wittes, B. (2009). Legislating the war on terror. Washington, D.C.: Brookings Institution Press.United Nations Office of Counter-Terrorism, International Legal Instruments. Available at: https://www.un.org/counterterrorism/international-legal-instruments