Why electronic mass surveillance fails… drastically

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Professor Martin Scheinin

Professor Martin Scheinin

Martin Scheinin is a Professor of international law and human rights. In 2005 he was appointed as the first United Nations Special Rapporteur on human rights and counter-terrorism, a position of trust he held until 2011.

Since the Edward Snowden revelations emerged in June 2013, there has been a continuing public debate on electronic mass surveillance and how it affects the privacy rights of ordinary people, including in Europe. Within SURVEILLE, (Surveillance: Ethical Issues, Legal Limitations, and Efficiency) an EU-funded project coordinated by the EUI, we believe to have shown in a paper just released that electronic mass surveillance, including the mass trawling of ‘metadata’ and ‘content’ by the United States National Security Agency (NSA) fails drastically in striking any ‘balance’ between security and privacy.

Over two and a half years our consortium has conducted multidisciplinary assessments of surveillance technologies as to the ethical issues they raise, the legal constraints there are – or should be – for their use above all on the basis of privacy and other fundamental rights, and their technical usability, including cost-efficiency. We are subjecting a wide range of surveillance technologies to three separate assessments undertaken by three parallel expert teams consisting (mainly) of engineers, ethicists and lawyers. This work is informed and commented upon by our two end-user panels, one consisting of law enforcement officials and the other of representatives of cities and municipalities. Surveillance technologies are being assessed in context by looking at their use in a sequence, in an evolving scenario simulating real-life experiences of the use of surveillance. The scoring approach applied in SURVEILLE primarily represents an effort to combine different disciplines and their specific expertise into the assessment of surveillance technologies. The technology assessment team and the legal team produce numerical scores, while the ethicists use colour codes (green/amber/red) to signal the severity of ethical concerns.

Our newest paper contains a terrorism prevention scenario that evolves step by step and in which six different surveillance methods are applied for the detection of a terrorist act possibly in preparation. The two first forms of surveillance represent electronic mass surveillance, namely the bulk collection of ‘metadata’ and content’ through the splitting of a submarine fiber-optic cable and the subjection of the trawled data to analysis through algorithms. The scenario continues with more targeted surveillance measures, some of them traditional (non-technological), some electronic. Our technology assessment experts gave the highest usability scores to traditional surveillance methods and only mediocre scores to methods of electronic mass surveillance. Remarkably, the assessments by the technology experts coincided with those by our team of ethicists. What worked best in terms of usability also raised the smallest ethical concerns. The gravest ethical concerns were identified with the same three methods of electronic surveillance that gave the lowest usability scores.

Furthermore, also the assessments by the EUI’s legal team in SURVEILLE largely coincided with this consensus. The three methods of electronic surveillance that gave low scores on usability and red ethical alerts, also produced the maximum score for privacy intrusion. In contrast, the two traditional surveillance techniques both gave a very low intrusion score. The scoring approach, the numerical scores obtained, and the ethics assessments are all presented in the paper just released. We believe that our methodology and findings can make an important contribution in the public debate, as to whether there is a ‘balance’ between surveillance and privacy, and what could be a meaningful framework for assessing how that ‘balance’ could be measured. For the NSA methods of electronic mass surveillance, the verdict is highly negative.