E-surveillance is not new in United States and U.S. is one of the most endemic e-surveillance states of the world. U.S. and its agencies are targeting not only U.S. citizens but citizens of the whole world. In fact, James Clapper has confirmed that NSA has been targeting foreign citizens for surveillance. Telecom giant Vodafone has revealed existence of secret wires for government surveillance around the world, including India.
Google along with other companies has been fighting against e-surveillance activities of U.S. agencies. In the past, FBI’s National Security Letters (NSLs) with gag orders were declared unconstitutional by a U.S. District Judge. However, this order was subsequently narrowed down by the Judge and allowed the U.S. Department of Justice to appeal the decision to the United States Court of Appeals for Ninth Circuit.
Now Google is once again taking a stand to protect Civil Liberties in Cyberspace by protesting against the proposal to widen the powers of FBI search warrants. Google has openly conveyed its dissent for the proposed US Justice Department proposal to expand federal powers to search and seize digital data, warning that the changes would open the door to US “government hacking of any facility” in the world. Google has submitted (PDF) to the Washington committee that is considering the proposed changes that increasing the FBI’s powers set out in search warrants would raise “monumental and highly complex constitutional, legal and geopolitical concerns that should be left to Congress to decide”.
Google may be using soft language but the reality is that U.S. and its agencies are already indulging in world wide e-surveillance in clear violation of international laws and state’s sovereignty. The revelations by Edward Snowden have proved this point well beyond any sort of doubt. Radio waves and Malware have also been used by NSA for world wide e-surveillance. Malware like FinFisher are increasingly being used for global electronic spying, e-surveillance and eavesdropping. Further, GCHQ and NSA have intercepted and stored webcam images of millions of innocent Internet users. Kaspersky has also revealed hardware based stealth spyware used by U.S. intelligence agencies.
Reacting to these sorts of e-surveillance activities by U.S. agencies, Brazil and the European Union recently announced plans to lay a $185 million undersea fiber-optic communications cable between them to thwart U.S. surveillance. Surprisingly, Google is also building the Brazil-US fiber optic cable that seems to be a contrary stand of Brazil. However, it is obvious that NSA’s/U.S. agencies surveillance may cause breakup of Internet if not checked immediately.
As far as FBI’s enhanced search powers are concerned, Google’s main concern is that FBI agents would be able to carry out covert raids on servers no matter where they were situated, giving the US government unfettered global access to vast amounts of private information. In particular, Google is not happy with the FBI’s desire to “remotely” search computers that have concealed their location either through encryption or by obscuring their IP addresses using anonymity services such as Tor. Surprisingly, U.S. agencies consider anything that is encrypted and anonymous as a potential threat and a fit case to exercise their jurisdiction. This is irrespective of the fact that such encrypted communication may have originated outside the jurisdictions of U.S. over which neither U.S. nor its agencies have any powers and jurisdiction to exercise.
On the other hand, U.S. Justice Department is calling for the scope of warrants to be widened so that FBI agents can search property even if the computers are located outside the concerned judge’s jurisdiction. The FBI argues that this new power would be essential in investigations where suspects have concealed the location of their computer networks. This is a genuine concern of FBI but encrypted and anonymous services are also used by law abiding and privacy loving people as well. Further, exercising extra territorial jurisdiction over foreign citizens has serious international laws concerns as well.
The Justice Department has also tried to assuage anxieties about the proposed amendment. In its comment (PDF) to the committee, DoJ officials say that federal agents would only request the new type of warrants where there was “probable cause to search for or seize evidence, fruits, or instrumentalities of crime”. But civil liberties and legal groups remain unconvinced, insisting that the language is so vaguely worded that it would have draconian and global implications. In its submission (PDF), the American Civil Liberties Union said that the proposed changes could violate the fourth amendment of the US constitution, which bans unreasonable searches and seizures.
It would be interesting to know how Congress would resolve these conflicting claims. But one thing is for sure. We at CECSRDI believe that there must be a balance between civil liberties protection and national security requirements and giving primacy to one over another would only be counterproductive and a bad policy decision.