Aletho News

ΑΛΗΘΩΣ

US-led military drill begins in western Ukraine

Press TV – September 15, 2014

A US-led military maneuver has begun in western Ukraine, amid continued fighting between government troops and pro-Russian forces in the country’s east.

The military drill, dubbed “Rapid Trident 14,” started early Monday near Ukraine’s border with Poland and involves 1,300 troops from over a dozen countries.

According to the US army, the troops come from 12 NATO members, including Germany, the UK, Poland, Norway and Canada, as well as non-members Azerbaijan, Georgia and Moldova.

The eleven-day drills will take place near the western city of Yavoriv and will not involve the live firing of weapons.

The US Defense Ministry said the exercise will increase interoperability among Ukraine and the participating nations.

Ukrainian Defense Minister Valeriy Heletey earlier announced that NATO member states have begun supplying weapons to the country’s forces despite a truce between Ukrainian troops and pro-Russians.

Meanwhile, heavy fighting between government troops and pro-Russian forces continues around the eastern city of Donetsk. According to Donetsk city hall officials, six civilians were killed on Sunday in heavy shelling around the city and its airport.

Kiev accused pro-Russians of threatening the truce by intensifying attacks against government positions. This is while, on September 13, the pro-Russia forces defending a checkpoint near the village of Olenivka, south of Donetsk accused the Ukrainian army of violating the truce.

The ceasefire agreement was reached between Kiev and the pro-Russians on September 5, after Russian President Vladimir Putin and Ukrainian President Petro Poroshenko hammered out a compromise deal aimed at ending the heavy fighting.

September 15, 2014 Posted by | Militarism | , , , , , , , , , | 1 Comment

EU members purchased oil from ISIL: Official

Press TV – September 15, 2014

A senior European Union official has revealed that some EU member states have purchased oil from ISIL Takfiri militants despite their rhetoric against the group.

In a briefing to the European Parliament Foreign Affairs Committee, EU Ambassador to Iraq Jana Hybas-kova said some European countries have purchased crude from the ISIL.

She, however, refused to disclose any names despite pressure by some Parliament members to do so.

The EU official also warned against any support by the West for separatist Kurdish groups who, she said, would destabilize the Middle East.

Earlier reports accused Turkey of buying and transporting oil from both the ISIL and Qaeda-linked Nusra Front. According to the reports, Western intelligence agencies could track ISIL oil shipments as they moved across Iraq and Turkey.

ISIL reportedly controls eleven oil fields in northern Iraq as well as Syria’s Raqqa province.

US intelligence officials estimate that the Takfiri militants earn more than USD 3 million a day from oil profit, theft, human trafficking and ransom. They say the militants sell oil and other products via established networks in Turkey, Jordan and Iraq’s Kurdistan region. Turkey has denied reports of involvement in ISIL’s oil smuggling operations.

September 15, 2014 Posted by | Corruption, Economics | , , | Leave a comment

Israeli settlers attack internationals and a Palestinian shepherd

Operation Dove | September 15, 2014

At Tuwani – On September 14th, two Israeli settlers attacked a Palestinian shepherd and two international near the Israeli outpost of Mitzpe Yair, in the South Hebron Hills area. During the aggression, the settlers stole video cameras from the internationals and broke one of their phones. Israeli police detained the Palestinian shepherd and one of the internationals for six hours. There were no consequences for the settlers.

At about 9:00 a.m. four Palestinian shepherds from the South Hebron Hills village of Qawawis were grazing their flocks accompanied by two internationals, on Palestinian owned land nearby the Israeli outpost. Two settlers from Mitzpe Yair crossed a closed area (where the access is forbidden to everyone else) in order to attack one Palestinian shepherd, starting to chase away his flock. The two internationals present taped the scene.

Afterwards the settlers assaulted the internationals: at first they grabbed one by the neck and knocked him down, they snatched his camera and broke his phone; subsequently the settlers attacked the other one twisting her arm and also seizing her camera. The settlers ran back to the outpost holding the stolen cameras, and the Palestinian and the internationals went to Qawawis village.

The Israeli police came to the Palestinian village and asked the shepherd and internationals to follow them to the Israeli Police station in Kiryat Arba settlement, due to one settler claiming that they threw stones at him. The Police officers detained both of them for six hours and questioned them about the incident. Israeli police released them at 5:00 p.m. without consequences.

The South Hebron hills area has suffered from the presence of Israeli settlers’ since the 70′s. Eight Israeli settlements and outposts (among which Mitzpe Yair is one) almost completely isolate 16 Palestinian villages from the rest of West Bank. The settlers’ violence includes overt violent attacks on Palestinians and their animals, damages to private properties, and limitations to freedom of movement with many consequences on their daily life. Since the beginning of 2014, Operation Dove registered the arrests of 15 Palestinians, including minors, because they were on lands near the settlements. During the same period there were no consequences for Israeli settlers involved in the incidents occurring in the area.

In spite of the violence suffered by the Palestinians from the South Hebron Hills area, they keep on grazing and farming on their lands, resisting in a non-violent way to the Israeli occupation.

Operation Dove has maintained an international presence in At-Tuwani and the South Hebron Hills since 2004.

[Note: According to the Fourth Geneva Convention, the Hague Regulations, the International Court of Justice, and several United Nations resolutions, all Israeli settlements and outposts in the Occupied Palestinian Territories are illegal. Most settlement outposts, including Havat Ma’on (Hill 833), are considered illegal also under Israeli law.]

September 15, 2014 Posted by | Ethnic Cleansing, Racism, Zionism | , , , | 3 Comments

Secret Law is Not Law

The Secrecy of the Legal Justifications for NSA Surveillance Violates International Human Rights Law

By Cindy Cohn | EFF | September 15, 2014

np-logo-2One of the many ways that the NSA’s mass surveillance violates the human rights of both Americans and others around the world is that it teeters on a huge pile of secret law.

Let’s be clear. Under international human rights law, secret “law” doesn’t even qualify as “law” at all.

The Human Rights Committee confirms that law is only law if people know it exists and can act based on that knowledge. Article 19 of the ICCPR, protecting the freedoms of opinion and expression, requires that “to be characterized as a “law,” [a law] must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. . . . “1 This same conclusion applies to Article 17, the right to privacy. The European Court of Human Rights similarly notes in the context of surveillance:

[T]he law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.2

This includes not just the law itself, but the judicial and executive interpretations of written laws because both of those are necessary to ensure that people have clear notice of what will trigger surveillance.

This is a basic and old legal requirement: it can be found in all of the founding human rights documents. It allows people the fundamental fairness of understanding when they can expect privacy from the government and when they cannot. It avoids the Kafkaesque situations in which people, like Joseph K in The Trial and the thousands of people on the secret No Fly Lists, cannot figure out what they did that resulted in government scrutiny, much less clear their names. And it ensures that government officials have actual limits to their discretion and that when those limits are crossed, redress is possible.

Just how far has the US strayed from this basic principle in its mass surveillance practices? Very far. The existence of the mass surveillance was kept officially secret from the world for over a decade, from when it started in earnest in 2001 until June of 2013 after the Snowden revelations. The surveillance at first had no judicial authorization whatsoever. Various pieces of it were brought under judicial authority —  email records in 2004, U.S. domestic telephone records in 2006 and backbone and other content collection in 2007 — but these court decisions also happened entirely in secret, so the public still didn’t know. Even today, large amounts of both the caselaw and the Executive Branch’s internal legal guidance have been kept from the public. To the extent we know anything about what the government is doing, this has been based on the piecemeal (and often highly fragmented) release of information as the result of dogged FOIA work and the legal cases brought by EFF plus our friends at the ACLU and EPIC.3

The breadth of the secret law is astonishing. For instance, only after the Snowden revelations did the government first admit its legal theories — that its mass spying relied on outrageous secret interpretations of section 215 of the PATRIOT ACT and section 702 of the FISA Amendments Act — neither of which even mentions mass surveillance much less authorizes it. We also now know about the NSA’s domestic telephone records collection and a past program that collected cell location information but we still don’t know the NSA’s full use of section 215. In fact, on September 2 the government sidestepped questions from the Second Circuit about whether its legal arguments in support of its telephone records collection could also support the mass collection of all credit card or bank records of Americans (hint: it could).

Nor are these secret, often extremely weak interpretations of otherwise public laws the only problem. Sometimes there’s no “law” at all. The NSA’s foreign collection processes, which are much more extensive than their domestic collections, are only ostensibly justified by an Executive Order, currently Executive Order12333. While E.O. 12333 is public, it’s not law at all and it certainly does not mention mass surveillance of millions of innocent people around the world. None of the government’s legal interpretations of it are public either. We’ve now seen evidence that this non-law with secret interpretations is the basis for the NSA’s mass surveillance of communications not just in one place, but at nearly every step of their journey: from remote access to computers, to man-in-the-middle attacks on messages in transit, to attacking direct service providers like Google, to tapping into the undersea cables. Yet the legal basis for these unprecedented intrusions into privacy remains opaque.

To bring the U.S. in line with international law, it must stop the process of developing secret law and ensure that all Americans, and indeed all people who may be subject to its surveillance have clear notice of when surveillance might occur. Terrorists and other criminals already well understand that they can be subject to surveillance during an investigation, so the people who are hurt are the innocent. Some operational details can and should remain secret, of course, but the law must be sufficiently clear to allow innocent people to understand when and how they may be subject to surveillance and, as they wish, take steps to regain their privacy. Only then will the U.S. fulfill its obligations under international law.

—————–

1 See UN Human Rights Committee, General Comment no. 34 on freedoms of opinion and expression (Article 19 ICCPR), available at: http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. The European Court of Human Rights applied the principles developed under Article 10 ECHR (right to freedom of expression) in Sunday Times in the case of Silver and others v. the United Kingdom, nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, 25 March 1983, paras. 85-86, which concerned the right to privacy of prisoners under Article 8 ECHR.

Malone v. the United Kingdom, no. 8691/79, 2 August 1984, para. 67.

3 All too often the Intelligence Community shamefully elides the fact that its public releases were due to pressure from our work and even then only releases what it decides to release, likely skewing what the public learns.

September 15, 2014 Posted by | Civil Liberties | , | Leave a comment

Johannesburg university issues ban on Israeli students and academics

By Tarek Sarad | Falastin News | September 12, 2014

Palestinian ambassador to South Africa Abdul-Hafid Nofal said that Johannesburg university decided not to accept any student or deal with any academic or lecturer from Israel.

In a press release on Wednesday, Nofal said that the academic council of the university issued a decision prohibiting the admission of Israeli students to any of its collages and departments.

The decision also included a ban on hiring or hosting academics and lecturers who work for Israeli universities, according to the Palestinian ambassador.

He noted that Johannesburg university was the first one in South Africa to have taken a bold decision three years ago to boycott Israeli universities.

In a related context

What really winds up Israel is that this rejection comes from a famous scientist, and it is science that drives its economy, prestige and military strength.

Stephen Hawking‘s decision to boycott the Israeli president’s conference has gone viral. Over 100,000 Facebook shares of the Guardian report at last count. Whatever the subsequent fuss, Hawking’s letter is unequivocal. His refusal was made because of requests from Palestinian academics.

Witness the speed with which the pro-Israel lobby seized on Cambridge University’s initial false claim that he had withdrawn on health grounds to denounce the boycott movement, and their embarrassment when within a few hours the university shamefacedly corrected itself. Hawking also made it clear that if he had gone he would have used the occasion to criticise Israel’s policies towards the Palestinians.

While journalists named him “the poster boy of the academic boycott” and supporters of the boycott, divestment and sanctions (BDS) movement celebrated, Ha’aretz, the most progressive of the Israeli press, drew attention to the inflammatory language used by the conference organisers, who described themselves as “outraged” rather than that they “regretted” Hawking’s decision.

That the world’s most famous scientist had recognised the justice of the Palestinian cause is potentially a turning point for the BDS campaign. And that his stand was approved by a majority of two to one in the Guardian poll that followed his announcement shows just how far public opinion has turned against Israel’s relentless land-grabbing and oppression.

Read More: Stephen Hawking’s boycott hits Israel where it hurts: science

September 15, 2014 Posted by | Ethnic Cleansing, Racism, Zionism, Solidarity and Activism | , , , | Leave a comment

TSA Not Sure If It Groped Man Before Flight, Demands To Grope Him After Flight Is Over

By Mike Masnick | Techdirt | September 15, 2014

Via Amy Alkon, we learn of yet another bizarre moment in the world of security theater known as the TSA. It involves a young man from Orono, Minnesota, named Kahler Nygard, who for reasons no one will ever explain, happens to be on a “selectee” list for flying. It’s not quite the no fly list, but it’s the list where you get four S’s on your boarding pass (“SSSS”), and the TSA is then supposed to give you and your bags that extra level of privacy-destroying attention, including a full gropedown. Nygard claims he got the full groping in Minnesota, but the TSA (or potentially a Spirit airlines employee) apparently believed it was overlooked — though, they didn’t “realize” this until the flight was halfway to Denver. Frantic calls were made and the TSA was eagerly waiting for Nygard when he landed in Denver, leading him to be pulled off the plane first (that’s a self-recorded video where he cheerfully announces to those on board, “No, I have not committed a crime!”), at which point the TSA demands to grope him again:

Yes, after he’s already flown from Minneapolis (where he claims he was groped, though the TSA claims it was missed) to Denver, the TSA wishes to grope him (and search through his bags again). Apparently, they believe that he might magically reverse time and go back in time to blow up the plane or something.

The TSA agent, Andrew Grossman, first demands Nygard’s boarding pass. Nygard points out that he no longer has it (you don’t need it after you board), which stumps Grossman, leading him to have to make a phone call — where he helpfully tells whoever he’s talking to at the other end that Nygard is “pretty objectionable, filming me.” Nygard keeps asking why they need to search him, and the TSA has no good answer, other than saying they need to do so. Nygard asks if he’s being detained, and they don’t answer. He asks if it’s an order or a request, and the TSA’s Grossman again doesn’t really answer (other than to say that he’s following orders). Finally, Nygard just walks away, saying that if he’s not being detained, he’s leaving. The TSA claims it’s calling the Denver police, who apparently did not do anything to stop Nygard, who walked out of the airport without any further problems.

I’m curious if the TSA’s Blogger Bob will step up with an explanation for why a passenger should be groped post-flight.

September 15, 2014 Posted by | Civil Liberties, Subjugation - Torture, Video | , , | 2 Comments

A Principled Fight Against Surveillance

 Global Information Society Watch | September 2014

sticker-chicoYears before Edward Snowden leaked his first document, human rights lawyers and activists have been concerned about a dramatic expansion in law enforcement and foreign intelligence agencies’ efforts to spy on the digital world. It had become evident that legal protections had not kept pace with technological – that the state’s practical ability to spy on the world had developed in a way that permitted it to bypass the functional limits that have historically checked its ability to spy. These concerns culminated in the International Principles on the Application of Human Rights to Communications Surveillance, a set of principles intended to guide policymakers, activists and judges to better understand how new surveillance technologies have been eating away at our fundamental freedoms and how we might bring state spying back in line with human rights standards.

Over a year and a half in the making, the final version of the Principles appeared on July 20, 2013, the first weeks of what we might call the Snowden era. An updated version was issued in May 2014. The Snowden revelations, once they started rolling in, affirmed the worst of our concerns. Intelligence services as well as law enforcement had taken it upon themselves to spy on us all, with little consideration for the societal effects. Lawmakers and even the executive had little comprehension of the capabilities of their own spymasters, and how our digital networks were being turned against all individuals everywhere. The need for the Principles was confirmed in spades, but the long and difficult job of applying them to existing practices was just beginning.

Since then, the Principles have, we hope, been a lodestar for those seeking solutions to the stark reality exposed by Snowden: that, slipping through the cracks of technological developments and outdated legal protections, our governments have adopted practices of mass surveillance that render many of our most fundamental rights effectively meaningless. The Principles have been signed by over 470 organizations and individual experts, by over 350,000 individuals throughout the world, and endorsed by the United Kingdom’s Liberal Democratic Conference, as well as European, Canadian, and German parliamentarians.The Principles have played a central guiding role in a number of the rigorous debates on the need to limit states’ increasingly expansive surveillance capacities. Their impact is already evident in, for example, the United States’ President Review Group on Intelligence and Communications Technologies report, the Inter-American Commission on Human Rights report and the the United Nations High Commissioner for Human Rights’ recent report on the right to privacy in the digital age. Their influence has also manifested in some of the administrative, legislative and administrative attempts to address surveillance problems post-Snowden. Perhaps most importantly, they have functioned as a rallying point for campaigning and advocacy initiatives around the world.

Below, we spell out some of the key features of the Principles. A more detailed explanation of the legal grounding for our conclusions in human rights jurisprudence can be found in a Legal Analysis and Background Materials document generated in support of the Principles.

Core Definitions in International Human Rights Law

The Principles begin with defining two core concepts that spell out the “what” and the “how” of measured surveillance. The first concept focuses on the type of data to be protected, while the second one ensures that a broad range of surveillance activity constitutes an interference with privacy rights. Outdated definitions of these two terms have led to expansive surveillance practices, as wide swaths of sensitive data or surveillance activities have been deemed outside the scope of legal protections. These definitional changes are designed to re-focus privacy protections away from artificial examinations of the kind of data or method of interference, and back on the ultimate effect on the privacy of the individual.

Protected Information

The Principles make clear that it’s time to move beyond the fallacy that information about communications does not pose as serious a threat to privacy as the content of communications. Information about communications, also called metadata, subscriber information or non-content data, can include the location of your cell phone, clickstream data, search logs, or anonymous online activity. Individually, these can be just as invasive as reading your email or listening to your phone calls. When combined and analyzed en masse, the picture painted by such data points can be far more revealing than the content of the communications they accompany. In spite of this reality, pre-Internet age (in fact, postal service-based!) legal conceptions have persisted in some legal systems, offering less or, in some instances, no protection at all to information that is not classified as ‘content’. What is important is not the kind of data is collected, but its effect on the privacy of the individual.

As explained in Legal Analysis and Background Materials which have been prepared for the Principles:

“The Principles use the term “protected information” to refer to information (including data) that ought to be fully and robustly protected, even if the information is not currently protected by law, is only partially protected by law, or is accorded lower levels of protection. The intention, however, is not to make a new category that itself will grow stale over time, but rather to ensure that the focus is and remains the capability of the information, alone or when combined with other information, to reveal private facts about a person or her correspondents. As such, the Principles adopt a singular and all-encompassing definition that includes any information relating to a person’s communications that is not readily available to the general public.”

This concern has been addressed by the latest report of the Office of the High Commissioner for Human Rights, who made clear that:

“From the perspective of the right to privacy, this distinction between [content and metadata] is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.”

Given the revealing nature of metadata and content alike, states should be restrained from unchecked interference with any protected information: from revealing a speaker’s identity if it is not public; from wantonly vacuuming up the websites or social media one has visited; from stockpiling information on all the people one has communicated with; and tracking the ‘when’, ‘from where’, and ‘for how long’ of all our digital activities. In the pre-Internet age, the much more limited amount and kind of “metadata” available to law enforcement was treated as less sensitive than content, but given current communications surveillance capabilities, this can no longer be the case.

Communication Surveillance: Much of the expansive state surveillance practices confirmed during the past year depend on confusion over whether actual “surveillance” has occurred and thus whether human rights obligations even apply. Some have suggested that if information is merely collected and kept but not looked at by humans, no privacy invasion has occurred. Others argue that computers analysing all communications in real-time for key words and other selectors does not amount to “surveillance” for purposes of triggering legal privacy protections. Still others seek to reduce privacy protections to ‘harmful uses’ of information. Such legal variations can mean the difference between reasonable and carefully targeted investigations and a surveillance state built on the continuous mass surveillance of everyone.

In the digital age, where the most sensitive portions of our lives are constantly communicated over digital networks, it has never been more important to ensure the integrity of our communications. It means little whether the interference takes the form of real-time monitoring of Internet transmission, hacking into individuals’ mobile devices, or mass harvesting of stored data from third party providers. The mere recording of Internet transactions – even if ultimately unviewed – can have serious chilling effects on the use of our most vital interactive medium. We have to ensure that all acts of communications surveillance are within the scope of human rights protections and, hence, are “necessary and proportionate”.

On this front, the Office of the High Commissioner for Human Rights (OHCHR) report, made clear that:

“any capture of communications data is potentially an interference with privacy and, further, that the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used. Even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.”

To remedy this issue, the Principles define “communications surveillance” as encompassing the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future.

Scope of Application

The Principles also address a long-standing problem arising from narrow interpretations adopted by some states regarding the extraterritorial application of their human rights obligations. Some have argued that the obligation to respect privacy and other human rights of individuals effectively stops at their national borders. In a world of highly integrated digital networks, where individual interactions and data routes defy any semblance of territorial correspondence, such distinctions are meaningless. The Principles therefore apply to surveillance conducted within a state or extraterritorially, and regardless of the purpose for the surveillance – including enforcing law, protecting national security, gathering intelligence, or another governmental function.

The OHCHR’s report explicitly underscores the principle of non-discrimination:

“Article 26 of the International Covenant on Civil and Political Rights provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law” and, further, that “in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

In this regard, the OHCHR’s report has underscored its importance:

“measures to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.”

The 13 Principles

The substantive Principles are firmly rooted in well-established human rights law. Generally, any limits on human rights should be necessary, proportionate and for a set of permissible purposes. These limits must be set out in law, and cannot be arbitrary.

Under international human rights law, each right are divided in two parts. The first paragraph sets out the core of the right, while the second paragraph sets out the circumstances in which that right may be restricted or limited. This second paragraph is usually called the “permissible limitations” test.

Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Right

The OHCHR report has neatly summarized these obligations with respect ot Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits the arbitrary or unlawful interference with privacy rights

“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances. The limitation must be necessary for reaching a legitimate aim, as well as in proportion to the aim and the least intrusive option available…Any limitation placed on the right (an interference with privacy, for example, for the purposes of protecting national security or the right to life of others) must be shown to have some chance of achieving that goal. The onus is on the authorities seeking to limit the right to show that the limitation is connected to a legitimate aim. Furthermore, any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights, including the prohibition of discrimination. Where the limitation does not meet these criteria, the limitation would be unlawful and/or the interference with the right to privacy would be arbitrary.”

Legality – No Secret Laws: The principle of legality is a fundamental aspect of all international human rights instruments and the rule of law. It is a basic guarantee against the state’s arbitrary exercise of its powers. For this reason, any restriction on human rights must be prescribed by law. The meaning of “law” implies certain minimum qualitative requirements of clarity, accessibility, and predictability. Laws limiting human rights cannot be secret or vague enough to permit arbitrary interference.

On that front, the Office of the High Commissioner on Human Rights made clear that:

“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances.”

The need to meaningfully and publicly explain rights-infringing practices—while important in all contexts—is key to any effective check on communications surveillance as such practices tend to be surreptitious and difficult to uncover. Given the highly technical and rapidly evolving nature of communications surveillance, it is also incumbent that laws are interpreted publicly and not through secret processes effectively free from public scrutiny. The state must not adopt or implement a surveillance practice without public law defining its limits. Moreover, the law must meet a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of, and can foresee, its application. When citizens are unaware of a law, its interpretation, or the scope of its application, it is effectively secret. A secret law is not a legal limit on human rights.

In her landmark report Pillay made clear that:

“Secret rules and secret interpretations even secret judicial interpretations of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.”

Legitimate Aim

Laws should only permit communications surveillance by specified State authorities to achieve a Legitimate Aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.

Under international human rights law, any restriction on our fundamental freedoms must generally pursue a permissible purpose or “legitimate aim.” These purposes or aims are often enumerated within the Article itself. The Principles therefore require that communications surveillance only be undertaken in pursuit of a predominantly important legal interest. Such interests have been described by Germany’s highest court as “the life, limb and freedom of the individual or such interests of the public a threat to which affects the basis or continued existence of the state or the basis of human existence.”

Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Rights, which prohibits arbitrary interference with the right to privacy.

The Office of the High Commissioner on Human Rights has similarly affirmed, in its 2014 Report, that “any limitation to privacy rights reflected in article 17 must be necessary for reaching a legitimate aim”. The Report elaborates:

“Surveillance on the grounds of national security or for the prevention of terrorism or other crime may be a “legitimate aim” for purposes of an assessment from the viewpoint of article 17 of the Covenant. The degree of interference must, however, be assessed against the necessity of the measure to achieve that aim and the actual benefit it yields towards such a purpose.”

Finally, communications surveillance cannot be employed in a manner that discriminates on the basis of grounds such as race, colour, sex, language religion or national origin, as such discrimination constitutes an illegitimate purpose.

Necessity, Adequacy and Proportionality

International human rights law makes clear that any interference with our fundamental freedoms must be “necessary in a democratic society”. In its General Comments No. 27, the Human Rights Committee clearly indicates that it is not sufficient that such restrictions serve a legitimate aim, they must also be necessary to it. Restrictive measures must also be adequate or appropriate to achieving their protective function. They must also be the least intrusive options amongst those which might be expected to achieve the desired result, and they must be proportionate to the interest to be protected. Finally, any restrictive measure which undermines the essence or core of a right is inherently disproportionate and a violation of that right.

Applying these foundational principles to the context of communications surveillance, the Principles affirm that:

Necessity: Often, a surveillance objective might be achieved using far less intrusive mechanisms. While it is by no means necessary to exhaust other options, it should be recognized the communications surveillance is inherently invasive and should not be a tool of first recourse.

Adequacy: It is not sufficient to show that a given surveillance practice is necessary for achieving a given objective, it must also be adequate and appropriate to it. As noted by the High Commissioner, at minimum, communications surveillance which interferes with privacy “must be shown to have some chance of achieving [its] goal.”

Proportionality: Communications surveillance should be regarded as a highly intrusive act that interferes with human rights and poses a threat to the foundations of a democratic society. Communications surveillance for investigative purposes, in particular, should only occur once the state has convinced an objective third party – a judge – that a serious threat to a legitimate interest exists and that the communications mechanism in question will yield information that will assist with that serious threat.

No voluntary cooperation:

Current digital networks and interactions entrust vast amounts of personal and sensitive data in the hands of a wide range of third party intermediaries, including ISPs, email providers, hosting companies and others. Through their discretionary decisions to comply (or not) with state surveillance requests, these intermediaries can dramatically impact on the privacy rights of all. Such voluntary sharing bypasses due process and poses a serious threat to the rule of law. The Necessary and Proportionate principles therefore prohibit any state communications surveillance activities in the absence of judicial authorization.

No repurposing

Contrary to many official statements, the modern reality is that state intelligence agencies are involved in a much broader scope of activities than simply those related to national security or counterterrorism. The Necessary and Proportionate Principles state that communications surveillance (including the collection of information or any interference with access to our data) must be proportionate to the objective they are intended to address. And equally importantly, even where surveillance is justified by one agency for one purpose, the Principles prohibit the unrestricted reuse of this information by other agencies for other purposes.

The Office of the High Commissioner for Human Rights report also emphasized that point:

“The report explained that the absence of effective use limitations has been exacerbated since September 11, 2001, with the line between criminal justice and protection of national security blurring significantly. The resultant sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating Article 17 of the Covenant on Civil and Political Rights, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another.”

Integrity of Communications And Systems:

No law should impose security holes in our technology in order to facilitate surveillance. Undermining the security of hundreds of millions of innocent people in order to ensure surveillance capabilities against the very few bad guys is both overbroad and short-sighted, not least because malicious actors can use these exploits as readily as state agents. The assumption underlying such provisions—that no communication can be truly secure—is inherently dangerous, akin to throwing out the baby with the bathwater. It must be rejected.

The Office of the High Commissioner for Human Rights report supports that conclusion, stating that:

“The enactment of statutory requirements for companies to make their networks “wiretap-ready” is a particular concern, not least because it creates an environment that facilitates sweeping surveillance measures.”

Notification And Right To An Effective Remedy

Notification must be the norm, not the exception. Individuals should be notified that access to their communications has been authorized with enough time and information to enable them to appeal the decision, except when doing so would endanger the investigation at issue. Individuals should also have access to the materials presented in support of the application for authorisation. The notification principle has become essential in fighting illegal or overreaching surveillance. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.

Before the internet, the police would knock on a suspect’s door, show their warrant, and provide the individual a reason for entering the suspect’s home. The person searched could watch the search occur and see whether the information gathered went beyond the scope of the warrant. Electronic surveillance, however, is much more surreptitious. Data can be intercepted or acquired directly from a third party such as Facebook or Twitter without the individual knowing. Therefore, it is often impossible to know that one has been under surveillance, unless the evidence leads to criminal charges. As a result the innocent are the least likely to discover their privacy has been invaded. Indeed, new technologies have even enabled covert remote searches of personal computers and other devices. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.

The OHCHR report lays out four characteristics that effective remedies for surveillance-related privacy violations must display:

“Effective remedies for violations of privacy through digital surveillance can thus come in a variety of judicial, legislative or administrative forms. Effective remedies typically share certain characteristics. First, those remedies must be known and accessible to anyone with an arguable claim that their rights have been violated. Notice (that either a general surveillance regime or specific surveillance measures are in place) and standing (to challenge such measures) thus become critical issues in determining access to effective remedy. States take different approaches to notification: while some require post facto notification of surveillance targets, once investigations have concluded, many regimes do not provide for notification. Some may also formally require such notification in criminal cases ; however , in practice , this structure appears to be regularly ignored.”

The 2014 OHCHR report continues, stressing the importance of a “prompt, thorough and impartial investigation”; a need for remedies to actually be “capable of ending ongoing violations”; and noting that “where human rights violations rise to the level of gross violations…as criminal prosecution will be required”.

Safeguards for International Cooperation:

Privacy protections must be consistent across borders at home and abroad. Governments should not bypass national privacy protections by relying on secretive informal data sharing agreements with foreign states or private international companies. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them. Where data is flowing across borders, the law of the jurisdiction with the greatest privacy protections should apply.

More to Be Done: The Necessary and Proportionate Principles provide a basic framework for governments to ensure the rule of law, oversight and safeguards. They also call for accountability, with penalties for unlawful access and strong and effective protections for whistleblowers. They are starting to serve as a model for reform around the world and we urge governments, companies, NGOs and activists to use them to structure necessary change.

But while the Principles are aimed at governments, government action isn’t the only way to combat surveillance overreach. All of the communications companies, Internet and telecommunications alike, can help by securing their networks and limiting the information they collect and retain. Online service providers should collect the minimum amount of information for the minimum time that is necessary to perform their operations, and to effectively obfuscate, aggregate and delete unneeded user information. This helps them in their compliance burdens as well: if they collect less data, there is less data to hand over to the government. Strong encryption should be adopted throughout the entire communications chain and, where possible, for data in storage.

It’s clear that under the cloak of secrecy, malfunctioning oversight and the limited reach of outdated laws, the practice of digital surveillance in countries from the far north to the far south, have overrun the bounds of human rights standards. We all hope to see activists around the world showing exactly where a country has crossed the line, and how its own policymakers and the international community might rein it back. We must call for surveillance reform to ensure that our national surveillance laws and practices comply with human rights standards and to ensure cross-border privacy are in place and effectively enforced. Working together, legal plus technical efforts like deploying encryption, decentralization of services and limiting information collected, can serve as a foundation for a new era of private and secure digital communications.

References:

September 15, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , | Leave a comment

ECHR case challenges UK government over surveillance of journalists’ communications

Bureau of Investigative Journalism | September 15, 2014

The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.

The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data.

The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden.

These have made it clear that by using mass surveillance techniques, government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications.

Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.

Click here for a summary of the case.

Why data harvesting is a human rights issue – find out why we’re doing this.

Gavin Millar QC: A breach of international law.

September 15, 2014 Posted by | Civil Liberties, Full Spectrum Dominance, Mainstream Media, Warmongering | , | Leave a comment

Response to “Memory is not history”

Memory in Latin America | September 15, 2014

The Economist’s Bello column this week has a column entitled “Memory is not history“, which argues that “there are dangers [in South America’s] intellectual fashion for “historical memory”.” It goes on to accuse “the left” of “rewriting history” – in fact, of imposing “memory” over an accurate “history”.

I would argue that the piece contains several important distortions, aside from trying to lump together a region from Colombia down to the Southern Cone.

The historical truth silenced by “memory” is that the cold war in Latin America was fought by two equally authoritarian sides.

But it was not. To take the example of Argentina, yes, there were Montoneros and there were incidences of left-wing violence before the 1976 coup. But to suggest that the small leftist group, which was largely destroyed before the military took power, was in any way equivalent to the forces of the State is very far off the mark.

The Economist points out that some human rights groups in Argentina tend to use the figure of 30,000 disappeared and it contrasts this with the nearly 9,000 victims recorded by the CONADEP commission. It is inaccurate and unfair to use the CONADEP list to undermine estimates of the disappeared, and I explained why in detail years ago. See also here for more on the numbers.

None of this mitigates the inexcusable barbarity of Pinochet or of the Argentine junta.

The problem is that it does. You can’t equate State terrorists with their victims, suggest that calculations of the disappeared are deliberately inflated, and then claim that you’re not weakening the accounts of the dictatorships’ crimes.

Memorials are a shorthand, yes. You can’t include the whole complexities of a country’s experiences on a plaque. Memory, in its wider sense, tends to include the testimonies of victims and relatives and it encompasses a whole range of commemorative acts, both formal and informal. Pulling out the memory/history dichotomy and reiterating the dos demonios theory (“each side was as bad as the other”) is a means of obscuring human rights abuses and seeking to paper over the crimes of the past.

September 15, 2014 Posted by | Deception, Mainstream Media, Warmongering, Timeless or most popular | , | 1 Comment