The Right to Privacy: Walking on Thin Ice

By: Jeffrey Cullen

The recent proposition by Britain’s MI5 Security Service raises the question whether measures to prevent potential terrorist plots are more important than guaranteeing the privacy of citizens’ communication on the Internet. The constant upgrades in technologies have caused difficulty in law enforcement’s ability to identify and eliminate potential terrorist threats. According to MI5’s Chief, Andrew Parker, there have been six attempted terrorist attacks in Britain in the past year, raising Britain’s terrorism threat level to “severe”.[1]

Parker has called for increased surveillance support from United States tech companies.[2] Parker commented these companies have an ethical responsibility to provide more help in monitoring communications that are suspect to be terroristic.[3] “MI5 and others need to be able to navigate the Internet to find terrorist communication, we need to be able to use data sets to be able to join the dots to be able to find and stop the terrorists who mean us harm before they are able to bring plots to fruition.”[4] The rapid change and growth in technology has made navigating and finding communications increasingly difficult.

Some major Internet companies have made encrypted messaging available to their users.[5] Encrypted messaging allows users to communicate with each other without surveillance from the provider of the service. The service provider’s inability to see these communications also means the government is unable to view them. People posing potential threats have been able to exploit encrypted communications, allowing them to hide their plans from authorities.[6] Parker commented, “The way we work these days has changed as technology has advanced. Our success depends on us and our partner agencies having sufficient up-to-date capabilities, used within a clear framework of law against those who threaten this country.”[7] Parker reassured the purpose for the increased surveillance is not to survey citizens’ private lives, but solely to identify terrorist threats.[8] However, this proposal calls into question the extent to which surveillance has already gone and how much further it may go.

Those in opposition to increased surveillance are skeptical due to Edward Snowden’s revelations of the United States and Britain “conducting mass monitoring of communications.”[9] Further, phone and Internet executives voiced their concerns of customers’ trust and the violation of civil liberties.[10] However, Parker emphasized increased surveillance is required. “[I]f we lose that ability, if parts of the radar go dark and terrorists are confident that they are beyond the reach of MI5 and GCHQ, acting with proper legal warrant, then our ability to keep the country safe is also reduced.”[11]

In the United States, the National Security Agency (NSA) has been searching the contents of Americans’ email and text communications to foreigners outside the country without warrants. Officials justify this surveillance in accordance with the 2008 FISA Amendments Act “in which Congress approved eavesdropping on domestic soil without warrants as long as the ‘target’ was a noncitizen abroad.”[12] The intention of this law was to gather intelligence pertaining to foreign organizations. This Act works by gathering all communications sent outside the country. The communications are then sifted through and searched for keywords in order to minimize the number of innocent communications that were flagged. The rest of the communications are deleted.[13] The deputy director of the NSA said they do not target any American’s content without a warrant. However, the rule written approved such surveillance as long as the NSA proves that one of the participants in the communication is outside the United States.[14] With this already open standard, should a treaty be reached between MI5 and United States companies like Google and Facebook to broaden surveillance, how much further will private citizen communications likely be opened?

 

 

[1] Michael Holden, UK MI5 spy chief calls for more powers to counter terror threat, Reuters (Sept. 17, 2015), http://www.reuters.com/article/2015/09/17/britain-security-idUSL5N11N0YB20150917

[2] Ewen MacAskill, MI5 chief calls for more up-to-date surveillance powers, The Guardian (Sept. 17, 2015), http://www.theguardian.com/world/2015/sep/17/mi5-chief-calls-for-more-up-to-date-surveillance-powers

[3] Id.

[4] Id.

[5] Id.

[6] Holden, supra note 1.

[7] Thomas Tamblyn, MI5 Chief Calls for Increased Surveillance Capabilities Ahead of ‘Snoopers Charter’ Bill, The Huffington Post (Sept. 17, 2015), http://www.huffingtonpost.co.uk/2015/09/17/mi5-chief-calls-for-increased-surveillance-capabilities-ahead-of-snoopers-charter-bill_n_8152932.html

[8] Id.

[9] Holden, supra note 1.

[10] MacAskill, supra note 2.

[11] Terrorism, Technology and Accountability, Security Service MI5 (Jan. 8, 2015), https://www.mi5.gov.uk/home/about-us/who-we-are/staff-and-management/director-general/speeches-by-the-director-general/director-generals-speech-on-terrorism-technology-and-accountability.html

[12] Charlie Savage, N.S.A. Said to Search Content of Messages to and From U.S., The New York Times (Aug. 8, 2015), http://www.nytimes.com/2013/08/08/us/broader-sifting-of-data-abroad-is-seen-by-nsa.html?pagewanted=all&_r=1

[13] Id.

[14] Id.