The NSA, Tor, Vodafone and LIBE Committee Meet To Chat
Imagine the NSA, European Parliament, Tor and Vodafone having a civilized conversation about privacy. Considering that the ricochets from the Snowden affair are still reverberating on both sides of the Atlantic, this may seem implausible. But you better believe it: The IAPP Europe Data Protection Congress 2013 is featuring a panel discussion among representatives of all of the above, which I look forward to moderating.
On one side of the table, fresh from a keynote speech at the IAPP Privacy Academy where he called Louis Brandeis an old fogey, you have Stewart Baker. Baker, a partner at Steptoe and Johnson and former general counsel for the NSA, is no softie when it comes to privacy. He thinks the NSA is right to deploy whatever powers it has to fulfill its mission gathering foreign intelligence and fighting against terrorism. Last month, he proposed “a ‘no hostage-taking’ provision that bars negotiations—and counterterrorism intelligence-sharing—with any European Union member if the European Union … takes action to punish U.S. companies in an effort to regulate U.S. intelligence or law enforcement agencies.”
This week, he blamed the FISA courts for undermining national security pre-9/11, arguing that the court “built a ‘wall’ between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001. In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.” Harsh words no doubt.
On the other side of the table will be Jacob Appelbaum, a hacker and one of the drivers of Tor. Applebaum, an American currently living in Berlin, was recently involved in breaking out the Spiegel story unearthing the NSA’s tapping of Chancellor Angela Merkel’s private cellphone. He is an active member of the Cult of the Dead Cow hacker collective, who argues that every individual is entitled to a zone of communications privacy free from government surveillance.
Tor is by far the most robust privacy enhancing technology (PET). It is used daily by more than half a million users to anonymously browse the web, circumvent censorship and communicate with confidentiality. To achieve strong anonymity, Tor routes user connections through a series of Tor relays (three relays by default), with each relay operated by an individual or organization, including multiple universities and the Chaos Computer Club.
Privacy advocates argue that Tor is essential for the activities of freedom fighters and human rights activists from China to Iran. National security and law enforcement agencies portray Tor as the hub of the “darknet,” harboring activity such as child pornography, human trafficking and international terrorism. The recent NSA revelations have shown that powerful national security agencies, including the NSA and British GCHQ, have invested significant effort in trying to undermine Tor. The leaked NSA presentation entitled “Tor Stinks” states that the NSA and GCHQ are operating some nodes in the Tor network in order to collect surveillance information and undermine the privacy protections afforded by the system.
A third panelist is Ralf Bendrath, a privacy researcher, activist and senior policy advisor for Jan Philip Albrecht, the EU Parliament rapporteur for the General Data Protection Regulation (GDPR). Bendrath deserves credit for the massive undertaking accomplished by the 30-year-old, soft-spoken MEP from the Green party—producing a counterproposal to the EU Commission’s January 2012 GDPR draft and then taking on no less than 3,999 comments to deliver a consolidated compromise text a few weeks ago. Regardless of POV, this herculean achievement places Bendrath and Albrecht as authoritative voices on anything privacy related. Indeed, over the past few weeks the LIBE committee conducted an investigation into mass surveillance practices not only in the U.S. but also in EU member states, resulting in interesting findings.
Notably, Bendrath and Albrecht are responsible for inserting back into the GDPR a provision taken out from the commission draft, probably in light of intensive lobbying, concerning data flows from Europe to countries whose law enforcement authorities express an interest in such data (query if this does not apply to EU member states themselves). Specifically, Article 43a of the draft GDPR, provides: “Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer or disclosure by the supervisory authority.”
Article 43a will no doubt place companies such as Vodafone, represented on the panel by its CPO Stephen Deadman, between a rock and a hard place. On the one hand, such companies receive court orders and government requests for access to data, often coming pre-packed with a gag order. On the other hand, those companies will become subject to fines and penalties in an amount up to 100 million euros (or five percent of annual turnover, whichever is greater) for failing to obtain EU DPA authorization to comply with these requests.
The problems faced by Deadman’s Vodafone, which is the world's second largest mobile operator (behind China Mobile), with more than a half-billion subscribers worldwide, are common to the companies you probably work for. Addressing them is one of the goals of what promises to be a fascinating debate.
About the Author
Omer Tene is Vice President of Research and Education at the IAPP where he administers the Westin Fellowship program and fosters ties between the industry and academia. He is also Vice Dean of the College of Management School of Law, Rishon Le Zion, Israel; an Affiliate Scholar at the Stanford Center for Internet and Society; and a Senior Fellow at the Future of Privacy Forum. He has published extensively in US and European law reviews about big data, online tracking, and international privacy law.