With the focus on the NSA, Europeans all too often ignore the threat in their midst: Britain’s surveillance apparatus. Not only that, writes Thorsten Benner, government meddling is making life difficult for reporters.
On the face of it, at their summit last week in Brussels, EU leaders presented a united front of controlled outrage against the revelations that the NSA had not just collected the data of millions of ordinary citizens but also spied on German chancellor Angela Merkel and French president Francois Hollande.
In the past week, all European attention was focused on what President Barack Obama knew or didn't know about the spying activities and what this means for the future of transatlantic relations. Jan Philipp Albrecht, a member of the European Parliament and leading critic of surveillance, points to a "culture gap" on privacy between the Europe and the United States.
Such loose talk suffers from a major blind spot: There is no united Europe when it comes to surveillance. A chief enemy of privacy rights is part of the European Union: the government of the United Kingdom. Britain is the second most important member of the "Five Eyes" global spying alliance that in addition to the US includes Australia, Canada and New Zealand. Britain runs a massive surveillance apparatus affecting millions of citizens around Europe and the world through taps on fiber-optic cables, weakening of encryption, and compelling of Internet service providers to provide user data to the authorities.
UK bigger challenge than US
As the Snowden documents reveal, the NSA even pays the UK to operate as the European hub for surveillance. The fight for digital privacy rights will not be won unless Europe starts to confront the crucial challenge within its own borders. And in a number of ways, advocates against mass surveillance face an even tougher environment in the UK than in the US.
First, politically there is little momentum against surveillance in the UK. Whereas in the US you have an emerging anti-surveillance alliance composed of left-wing civil rights defenders, libertarians and digital companies worried about their reputation and profits, there is nothing like that in Britain. Second, in terms of safeguards and oversight the UK is has a very feeble regime. The GCHQ seems to use the weak regulatory environment in the UK as a selling point in order to attract US funding for surveillance.
As a recent study points out in the UK "the authorization and the review process are entirely contained within the executive branch". There does not seem to be any judicial review of surveillance powers and activities by UK courts under the terrorism act. Parliament is not much more effective either. According to Liberal Democrat MP Julian Huppert, the GCHQ has "almost completely free rein". The committee that is supposed to scrutinize the intelligence services "consists of a small number of parliamentarians, handpicked by the prime minister, and includes ex-ministers who effectively scrutinize their own past decisions. It is not clear (…) they all understand the technical capabilities they are supposed to comment on."
Third, the UK's news media are in a weak position. Part of it seems self-inflicted. The BBC's reporting on the UK surveillance activities has been rather lackluster and no match for aspirations of the institution that prides itself on being the world's most trusted news source. Part of this weakness is due to government interference and the lack of constitutional protections for press freedom.
The Guardian, the world's leading source of reporting on surveillance, has found itself at the receiving end of government intimidation that includes the forced destruction of a laptop with the Snowden material under the supervision of senior government officials. Just this week David Cameron issued another threat to the media to voluntarily stop reporting on the Snowden files or face "injunctions or D-notices (publication bans) or the other tougher measures". Cameron used language that one would expect to hear from Russian President Vladimir Putin but not from the prime minister of one of the world's oldest and proudest democracies.
Anyone in Europe concerned about the right to privacy in the digital age needs to work through multiple channels to try to turn the tide in the UK. First, work with the UK parliament. The fact that today Liberal Democrat MP Julian Huppert will lead a debate on the question of oversight of intelligence and security services is a welcome first sign of hope that the UK parliament starts to live up to its responsibilities. The goal should be to convince the British parliament to push in favor of a EU agreement that affords all European citizens the same protections that are afforded to national citizens when it comes to the work of intelligence services.
Second, European NGOs, companies and governments should strive to build coalitions that help to delegitimize the UK (and by extension US) mass surveillance activities as violating fundamental rights to privacy enshrined in both existing EU and international law. The recent German-Brazilian initiative at the UN General Assembly is one step in the right direction.
Third, challenge British surveillance activities in court. The watchdog group Privacy International has tried that but was forced to file the suit with a secret tribunal rather than a regular administrative court. That is why the recent initiative by rights groups to launch a legal challenge against the UK before the European Court of Human Rights is an overdue step. In addition, the European Commission should consider suing Britain for violating European norms on privacy protection.
At the same time, rights advocates should counter any efforts to enter bilateral deals with the US or the UK on the cheap. The Bertelsmann Foundation's Annette Heuser for example has argued that the US should consider admitting Germany to the "Five Eyes" global spying alliance hinting at Berlin's "crucial intelligence" on Iran and Syria as a dowry. Such a step would only serve to legitimize and strengthen the mass surveillance practice of the UK and US.
Rather foundations (not least those associated with media companies) should invest in research and advocacy on protecting rights of citizens against surveillance. This will be an uphill battle at best given that there are many advocates of surveillance in governments across Europe (including Germany). But this will be the only way to tackle the problem at its root.
Thorsten Benner (@thorstenbenner) is director of the Global Public Policy Institute (GPPi) in Berlin.