On December 13 and 14, 2012, the Electronic Frontier Foundation organized the Surveillance and Human Rights Camp held in Rio de Janeiro, Brazil. The meeting examined trends in surveillance, reasons for state surveillance, surveillance tactics that governments are using, and safeguards that can be put in place to protect against unlawful or disproportionate surveillance.
This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.
The camp also examined different types of data, understanding tools that governments can use to access data, and looked at examples of surveillance measures in different contexts. The camp was divided into plenary sessions and individual participatory workshops, and brought together activists, researchers, and experts from all over the world. Experiences from multiple countries were shared, with an emphasis on the experience of surveillance in Latin America. Among other things, this blog summarizes my understanding of the discussions that took place.
The camp also served as a platform for collaboration on the Draft International Principles on Communications Surveillance and Human Rights. These principles seek to set an international standard for safeguards to the surveillance of communications that recognizes and upholds human rights, and provide guidance for legislative changes related to communications and communications meta data to ensure that the use of modern communications technology does not violate individual privacy. The principles were first drafted in October 2012 in Brussels, and are still in draft form. A global consultation is taking place to bring in feedback and perspective on the principles.
The draft principles were institutionalized for a number of reasons including:
This has placed the individual in a vulnerable position as opaque surveillance of communications is carried out by governments across the world — the abuse of which is unclear. The principles try to address these challenges by establishing standards and safeguards which should be upheld and incorporated into legislation and practices allowing the surveillance of communications.
A summary of the draft principles is below. As the principles are still a working draft, the most up to date version of the principles can be accessed here.
The conversations during the camp reviewed a number of practices related to surveillance of communications, and emphasized the importance of establishing the draft principles. Setting the background to various surveillance measures that can be carried out by the government, the different categories of communication data that can be easily accessed by governments and law enforcement were discussed. For example, law enforcement frequently accesses information such as IP address, account name and number, telephone number, transactional records, and location data. This data can be understood as 'non-content' data or communication data, and in many jurisdictions can easily be accessed by law enforcement/governments, as the requirements for accessing communication data are lower than the requirements for accessing the actual content of communications. For example, in the United States a court order is not needed to access communication data whereas a judicial order is needed to access the content of communications.1 Similarly, in the UK law enforcement can access communication data with authorization from a senior police officer.2
It was discussed how it is concerning that communication data can be accessed easily, as it provides a plethora of facts about an individual. Given the sensitivity of communication data and the ability for personal information to be derived from the data, the ease that law enforcement is accessing the data, and the unawareness of the individual about the access- places the privacy of users at risk.
Ways in which governments and law enforcement access information and associated challenges was discussed, both in terms of the legislation that allows for access and the technology that is used for access.
In this discussion it was pointed out that in traditional forms of accessing data governments are no longer effective for a number of reasons. For example, in many cases communications and transactions, etc., that take place on the internet are encrypted. The ubiquitous use of encryption means more protection for the individual in everyday use of the internet, but serves as an obstacle to law enforcement and governments, as the content of a message is even more difficult to access. Thus, law enforcement and governments are using technologies like commercial surveillance software, targeted hacking, and malware to survey individuals. The software is sold off the shelf at trade shows by commercial software companies to law enforcement and governments. Though the software has been developed to be a useful tool for governments, it was found that in some cases it has been abused by authoritarian regimes. For example in 2012, it was found that FinSpy, a computer espionage software made by the British company Gamma Group was being used to target political dissidents by the Government of Bahrain. FinSpy has the ability to capture computer screen shots, record Skype chats, turn on computer cameras and microphones, and log keystrokes.3
In order to intercept communications or block access to sites, governments and ISPs also rely on the use of deep packet inspection (DPI).4 Deep packet inspection is a tool traditionally used by internet service providers for effective management of the network. DPI allows for ISP's to monitor and filter data flowing through the network by inspecting the header of a packet of data and the content of the packet.5 With this information it is possible to read the actual content of packets, and identify the program or service being used.6
DPI can be used for the detection of viruses, spam, unfair use of bandwidth, and copyright enforcement. At the same time, DPI can allow for the possibility of unauthorized data mining and real time interception to take place, and can be used to block internet traffic whether it is encrypted or not.7
Governmental requirements for deep packet inspection can in some cases be found in legislation and policy. In other cases it is not clear if it is mandatory for ISP's to provide DPI capabilities, thus the use of DPI by governments is often an opaque area. Recently, the ITU has sought to define an international standard for deep packet inspection known as the "Y.2770" standard. The standard proposes a technical interoperable protocol for deep packet inspection systems, which would be applicable to "application identification, flow identification, and inspected traffic types".8
The discussions also examined similarities across legislation and policy which allows governments legal access to data. It was pointed out that legislation providing access to different types of data is increasingly becoming outdated, and is unable to distinguish between communications data and personal data. Thus, relevant legislation is often based on inaccurate and outdated assumptions about what information would be useful and what types of safeguards are necessary. For example, it was discussed how US surveillance law has traditionally established safeguards based on assumptions like: surveillance of data on a personal computer is more invasive than access to data stored in the cloud, real-time surveillance is more invasive than access to stored data, surveillance of newer communications is more invasive than surveillance of older communications, etc. These assumptions are no longer valid as information stored in the cloud, surveillance of older communications, and surveillance of stored data can be more invasive than access to newer communications, etc. It was also discussed that increasingly relevant legislation also contains provisions that have generic access standards, unclear authorization processes, and provide broad circumstances in which communication data and content can be accessed. The discussion also examined how governments are beginning to put in place mandatory and extensive data retention plans as tools of surveillance. These data retention mandates highlight the changing role of internet intermediaries including the fact that they are no longer independent from political pressure, and no longer have the ability to easily protect clients from unauthorized surveillance.