British surveillance since the Snowden revelations

Despite Edward Snowden making its surveillance¹  activities public the British government showed little appetite to change direction after 2013.

Since the 9/11 terrorist attacks the nature of surveillance has significantly changed due to the motive by governments to prevent crime and to fight terrorism. This purpose combined with the contemporary technological improvements has made mass surveillance operations feasible on a novel level that the world has not seen before. These methods brought concerns of the harm posed by them upon individual privacy. This writing will use the approach of comparing the American and the British government’s reaction to the Snowden revelations to show how much the British government’s willingness has shifted towards changing direction regarding its surveillance scheme. The essay will first explain the most significant surveillance operations as revealed by Snowden, focusing on the activities that were more relevant in the UK. Next the essay will introduce the two sides of the argument, for and against the significance of the Snowden revelations. Then it will focus on the empirical evidences between the American and the British governments in their surveillance policy changes. Throughout the second part the essay will draw on various kinds of social and political aspects to argue that Britain has adopted an approach to rather legitimize its surveillance system instead of reforming it. Finally, it will present the conclusion that any significant change in the British surveillance scheme is yet to be achieved.

In June 2013 Edward Snowden a former employee of Booz Allen Hamilton, having worked for the CIA before, contracted by the USA’s National Security Agency (NSA) has committed probably the most significant whistle-blowing of the 21^st century.²  According to Snowden the major motivation behind his “great disclosure” was that based on his judgement the government agency he was working for completely ignored the Fourth Amendment of the US’s constitution by its operations.³  The amendment protects people from unjustified seizures and searches by the government, and legitimates only those searches that are reasonable within the law, usually bound to judicial approval.⁴  Due to Snowden’s collaboration with journalists such as Glenn Greenwald, the Washington Post and the Guardian began the publication of a series of disclosures regarding the existence of a worldwide mass surveillance by the US’s National Security Agency.⁵

These surveillance activities practiced by the government included the use of such technologies (e.g.: the data mining programme PRISM) that enabled them to get direct access to citizens’ email addresses and to collect nearly anything on the Internet on a quotidian basis.⁶  The British Government Communication Headquarter’s Tempora programme was gaining access to customer data of companies such as Yahoo, Facebook or Gmail. GCHQ is connected to NSA via fibre-optic cables running through the Atlantic Ocean. The programme is able to keep vulnerable data for up to 30 days. This technological network enables the GCHQ to keep tabs of more than half of the British population just through people’s social media usage; making it a state of the art internet based mass surveillance activity.⁷  The legal basis for such operations was provided by the 2000 Regulation of Investigatory Powers Act that was amended before the explosion of social media therefore this framework was arguably not adequate for the broad perspective of possibilities opened up by the widespread use of online communication platforms.⁸  It was replaced by the Investigatory Powers Bill in 2016.⁹  Furthermore according to Snowden, NSA could get access to the private online data of the British citizens all day through via GCHQ, which they are not allowed to do domestically on US soil.¹⁰  These disclosures had an awakening effect on millions of people around the world who had never thought that their phone communications and emails could serve as vital channels for a worldwide mass surveillance system.¹¹

While the American mediums were free to report on the Snowden revelations, the debate in the UK has been largely muted. Furthermore American newspapers were free to report on the exposures, whereas the Guardian was pressurized by the British government to destroy the hard drives, in the presence of QCHQ supervision, that contained the Snowden reports. This may be the British government’s most shocking action to conceal the details of their surveillance activities from the public and one that Moore probably rightfully calls as an embarrassment to the British journalism.¹²

The exposure made by Snowden was the much needed sparkle that gave credibility (substantial evidence) for an international debate. In response to the disclosures US senator Rand Paul has referred to these undertakings as invading or breaching privacy.¹³  The court of Justice of the European Union expressed the concern that the safe harbour agreement, which legitimatized the shifting of data from the European Union to the United States, where the states are allowed to access information of private nature, enabled citizen’s right to privacy to be compromised. The response of the NSA to theses criticism has been largely that they do not consider their ‘disciplined operation’ as a threat to people’s privacy.¹⁴

Despite the international scandal some academics believe that the public outrage around the Snowden revelations has been largely an overreaction. Nigel Inkster argues that the level of threat posed by the NSA on our rights to privacy is mystified and the dangerous nature of their operation is by far overstated. He highlights that officially there have been only a negligible number of 56 000 times when NSA incorrectly accessed emails of US citizens and the agency has reported these cases accordingly after each accident.¹⁵  While other academics like Kevin Macnish express their worries regarding the balk collection of personal data as it can give space to abuse the private personal information.¹⁶  The ark of the Snowden disclosures is perhaps the generation of a two sided argument in which one narrative claims that the NSA, GSHQ activities are mostly legitimate and due to their presumed reliability they do not mean significant threat to citizens’ privacy, and changes to them are not so urgent. While from the perspective of the opposite standpoint the system needs to be reformed and operations of such agencies need to be restricted.

The revelations were likely to provoke some kind of reaction from most countries’ government. Leaders of the governments were highly expected to form an opinion on the phenomena of mass surveillance, leaning towards either side of the argument and taking making proposals or implementations legally if they think it is necessary. Evaluating the British government’s approach towards their surveillance methods, it is an excellent start to compare the speeches of then British Prime Minister David Cameron and former President of the United States Barack Obama. Their statement quite significantly indicates the difference between the US’s and the British Government’s approach towards assessing their government surveillance programme in light of the Snowden exposures.

Obama tried to give a fairly balanced speech in the aftermath of the scandals fuelled by the famous whistle-blower. He made clear that he is not going to try to cede the activities of the world’s most skilled surveillance agency. But the president spoke out against the government’s recordings of every phone call made in the USA, and he pressed that it needs to be ended on this level. But he did not clarify if future phone call recordings will be specifically linked to a personalized showing of a possible link to terrorism. Still Obama gave much freedom to NCA surveillance, since the causes under which he saw foreign NSA surveillance as justified (e.g. counter-intelligence, counter terrorism) were still very broad. The legacy of Obama in terms of mass surveillance restrictions is the USA Freedom Act which, enacted since, prohibits the large scale collection of US citizens’ data, while it does not affect NSA activities abroad.¹⁷  Yet his achievements could be considered as half the battle, provided that the regulations are truly followed by the relevant government departments.

On the other side David Cameron from one hand seriously emphasized the importance of communications data in high-priority crimes such as child abduction, from the other hand jokingly referred to crime dramas on television where they always apply the use of some sort of mobile communications device to solve crimes. He used his narrative to justify his agenda that the modernization of the law and practice is required to help fighting crime effectively and to keep people safe.¹⁸  Later Cameron proposed the Investigatory Powers Bill (which came into force in 2016) to legitimatize for the police the detection of websites a citizen may visits without the exact parts of the website that were visited by that citizen. This legislation was driven by the agenda that the Internet should not be a safe space for terrorists.¹⁹

The contrast between the two countries’ approach expressed through the leaders of their governments is quite clear. The US’s attitude could be put as “now that the truth has turned out we will try to stop surveillance agencies from breaching your rights to privacy at least on a domestic level”. While the British government’s reaction was to use the revelations as an opportunity to effectively embrace state surveillance activities and legitimize them instead of restricting such possibly pervasive surveillance activities.

Arne Hintz and Lina Dencik discuss in their meticulous article how the British surveillance has been effected by the 2013 surveillance activity disclosures.²⁰  They use various aspects to answer the question. First they scrutinize the political coalitions and the governmental context. They say that the governmental purpose to give more legitimate power to the surveillance was inspired by the improvements in countries such as Denmark and France where novel regulations were proposed as a reaction to terrorist attacks. They point out that in these regards the US’s approach with their Freedom Act, in contrast to some of these European legislations, restricts data gathering by government agencies and hence reversed a fashion towards ever-expanding surveillance for the first time over the last 40 years.

Under policy norms they discuss how the UN Human rights council established a yet unprecedented Special Rapporteur. This has since been criticised by other countries’ surveillance programmes, including the UK’s surveillance, which had the capacity to strongly influence its citizens’ public debate. On the factor of the legal challenges and court rulings they explain that the Snowden exposures gave vital evidences, without which any of the legal challenges would have been impossible even if they have not lead to significant changes in the system. The Investigatory Powers Tribunal has ruled some of the GCHQ activities unlawful, especially exchanging citizen’s private information between American and British secret services and the monitoring of civil societies.²¹

About campaigns and civil society advocacy they write that some organisations (e.g. Privacy International or Big Brother Watch) raised public awareness by organising meetings nationwide. Public campaigns like ‘Did GCGQ Illegally Spy on You?’ gained significance as a pressure strategy on the Investigatory Powers Tribunal. Despite these merits larger public protests, manifested in street protests, has been much more limited in Britain. The likes of these have been present more in the US in the form of the ‘Stop Watching Us’ demonstrations for example. The authors point out here that the lack of public protests in the UK is mainly due to that the advocacy of surveillance issues has been limited to specific digital rights groups. And consequently this has most likely lead to a rather moderate pressure on the British government posed by the civil society.²²

Under the technological standards and developments segment they analyse how standards bodies, underneath the political and public debate, have responded to some of the vulnerabilities highlighted by Snowden. Institutions like The Internet Engineering Task Force have set up teams to examine the inclusion of human rights in the standards and protocols. These have strongly disapproved the pervasive access of private data and have offered some effective means of protection against mass surveillance techniques.²³

On the private sector side Hintz and Dencik emphasize the importance of interactions between private sector and legislators to influence policy developments and applications. About the significance of Media coverage over surveillance issues they talk about how it may varies in nature between each country due to the differences between their political and social contexts. In Germany for instance the coverage of the surveillance revelations of the ‘Snowden kind’ indicated that the effect of surveillance technologies in breaching freedom and privacy was a more significant theme of coverage there. In contrast the British debate has mostly failed to develop a broader debate around the democratic consequences of large scale surveillance. The British government therefore only felt limited pressure to restrict surveillance and focus more on defending civil and human rights. Alternatively, a powerful media coverage emphasized the relevance of expanding surveillance and somewhat encouraged the government to prioritise state security over the state’s other important duties.²⁴  Therefore the British government’s responsibility over respecting the privacy rights of their citizens has been mostly sidelined.

Finally they finish with the highly relevant element of the public’s opinion. Hintz and Dencik think that like in the US in Britain too, surveillance practices can have a significant chilling effect on citizens, making them afraid to search for some terrorism related terms in Google or to speak out against state surveillance publicly. The milieu of such an intimidated public, lacking to be heard or voiced in any public debate will not significantly influence the government to reform their policies. Indeed as they discussed earlier the civil campaigns related to surveillance matters have been particularly limited and restrained in the UK.²⁵

Martin Moore explains that the people of those countries with a bad experience of surveillance (e.g. the Nazi Stasi in Germany) tend to have a rather bad public opinion about the exercise. American people consider privacy as their basic constitutional right, while British people could culturally have a greater trust towards secret agencies due to the positive ideological image they believe about the ‘beloved spy’ James Bond, who “protects justice”. Moore also highlights that there is a need for a First Amendment (freedom of speech) in the UK to provide vital platforms for surveillance related discussions of scrutiny in newspapers and elsewhere in society.²⁶

The essay intended to demonstrate that the British government clearly has a rather difficult approach towards the interpretation of significant reforms in their surveillance legislation. The structure of the essay in comparing the American System almost side by side to the British in terms of surveillance policies and policy implementations, makes the contrast between the two approaches even more obvious. And even though there has been some momentum in the British society that has successfully campaigned for surveillance changes on the government level, the results generated by these movements fade into insignificance when compared to the American surveillance reforms, at least officially. The Snowden revelations therefore have not meaningfully changed the British government’s attitude for surveillance, instead it merely pointed out what are the problems with it and any serious reforms have yet to happen in the future.

Steve Z. Barn, university student, University of Dundee