Edward Snowden: should Australians be worried?

Edward Snowden’s activities over the last week have thrust internet and broader communications surveillance back into the limelight . This happens now and then, but whistle-blowers rarely release rather sensitive slides to the media. The Snowden-PRISM affair has thrown up all sorts of issues including: civil liberties; privacy; secrecy in a democracy; the costs of protecting us from terrorists; and, is Edward a whistle-blower, traitor or both?

In defence of PRISM President Obama has told American’s not to worry. PRISM is designed to spy on foreigners. Does that mean us? We’ll never know.

A rather embarrassing reality is that America’s electronic surveillance regime, apparently forced on transnational internet and communications companies, is now looking a little like China’s. The people at Huawei might be wondering why it is that their company has been locked out of contracts like the NBN because of THEIR alleged links to intelligence agencies? Is it about Huawei possibly being a security threat or Huawei being a competitive threat to transnational corporations headquartered in America and Europe?

Civil liberties

PRISM grew out of an international emergency, but never went away. Soon after 9/11, the Bush Administration decided that to effectively fight the War on Terror, the normal system of warrants (one per phone-tap) could be bypassed. This political decision to bypass that judicial obstacle has given the NSA a highly intrusive capability in the US and probably everywhere else.

All this poses significant dangers to the rights of Americans to privacy and freedom from excessive government power. This may also pose dangers for Australians.

We public don't know whether Australia has gone as far down the road as the US regarding warrantless phone-taps and related mass datamining. Certainly many companies on the internet are into datamining. The proof is in the personally tailor-made advertisements that follow us around the net.

We also don't know the full extent of domestic operations of the Australia's Defence Signals Directorate (DSD) because information is rationed out. DSD is the equivalent of America’s NSA, However DSD has a website and they are fairly forthcoming on some things within security constraints. More is known about ASIO, another player in Australia’s communications security network.

The physics of modern digital communications mean that national borders no longer count. This is because today communications, carried by satellite, landlines or undersea cables, almost always consist of a computer-scrambled mixture of foreign and domestic phone calls, SMS and internet messages. Calls between Sydney and Melbourne might be partially routed through foreign telephone exchanges such as those in Hawaii or Los Angeles. Many internet servers we use for our daily emails are located in the US, hence wide open to American scrutiny.

This domestic/foreign call mixing has led to increasing legal and political problems for intelligence organisations with specific domestic and/or foreign mandates. Organisations, like the NSA, may be sifting by keyword search through millions of calls and emails simultaneously. PRISM may just be a limited subset of much broader surveillance programs.

Some Safeguards

The first safeguard against excessive NSA surveillance power might well be the sense of responsibility of staff in DSD, ASIO and Australian police forces to protect us from it.

Responsibility over Australian communications security agencies is complex. At a ministerial level it is divided between the Minister for Defence (presumably responsible for all DSD activities), the Attorney-General (handling ASIO), and the Prime Minister (presiding over everyone). They must collectively weigh up security threats and not necessarily be caught up with US or UK approaches to domestic surveillance. In conjunction with careful political and administrative decisions there should be adherence to the spirit and letter of the law, including relevant communications legislation.

At other levels those "watching the watchers" include the Parliamentary Joint Committee on Intelligence and Security and also the Inspector-General of Intelligence and Security, both having oversight of the Australian Intelligence Community. Another entity, the Independent National Security Legislation Monitor, reviews “the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis” .

A major safeguard that should not be circumvented in Australia is the system of warrants and the judiciary. Relevant judges who approve warrants for phone-taps must be sufficiently informed of the technical implications of these warrants. Are the warrants specific enough but still effective?

Communications surveillance is an extraordinarily complex area. Political and legal oversight might be constant, but we normal citizens are not told much. So how are we to know? But now and then, happenings in the US and even China’s semi-free Hong Kong, remind us of the possible extent of surveillance.

How closely we might be watched is a mystery Edward Snowden has partially revealed. Edward has apparently handed over “thousands” of documents to The Guardian and “dozens” may be newsworthy, so what we’ve seen so far might be minor. Whether Edward is whistle-blower or traitor is a philosophical and legal question. America’s CIA, NSA and President Obama are probably wishing we “foreigners” were not becoming so well informed.