A year ago, Europe was incensed to discover from whistle-blower and former contractor to America’s National Security Agency, Edward Snowden, that a snooping system, PRISM (which collects e-mails, files and social networking data from firms such as Google, Apple and Facebook) allowed the intelligence apparatus of the United States to access EU citizens’ personal data.
This story was further compounded last November when it was revealed the Americans had also eavesdropped on German Chancellor Angela Merkel’s mobile phone, together with those of 35 other world leaders. The leaks caused deep anger, especially among Germans, who heard echoes of the Gestapo and the Stasi.
In addition to bugging phones, the Americans had been hoovering up vast amounts of information about European citizens’ communications. The fact that much of this had been done by European spies in France, Spain and Italy on non-Europeans and passed to the Americans did not assuage European anger.
The European Union is one of the few places in the world that already has strong data protection rules in place which fastidiously protect its citizens’ data.
European leaders were therefore right to express concern about PRISM. But they were wrong to be surprised that this was happening on an industrial international scale. And not just internationally.
EU leaders also expressed ‘shock’ that the US had been listening in to information on EU countries. Yet it is well known that the French listen in to the British and the British eavesdrop on the French.
The Chinese listen in on the Americans, and to the French, British and Germans and any other EU country that is worth listening to. It has been ever thus. Intelligence gathering is not solely confined to a country’s enemies but also to its friends. It is a way of reaching the parts that normal diplomatic channels cannot reach.
The question raised by the exposure of PRISM is whether, in its enthusiasm to protect the citizen, the state had intruded needlessly and unjustifiably into his right to privacy. As details of American snooping have spread, sales of George Orwell’s 1984, a story of an over-watchful state, have rocketed.
The issue has been given an added twist by the publication, by telecommunications giant Vodafone, of its first Law Enforcement Disclosure Report, from which we now know that intelligence agencies throughout Europe have direct access to its networks.
These include the Malta Security Service, which in the year under report 2013/14, made almost 4,000 requests for ‘metadata’ information from Vodafone – proportionately, 10 times more per capita than the number of such requests lodged with Vodafone by Italy, where the crime rate is considerably higher.
Metadata information consists of two kinds: information about the direction and duration of telephone calls leading to the location of a mobile phone, or straightforward wire-tapping. According to an official spokesman for the Minister for Home Affairs, wire-tapping constitutes “a minority” of Malta’s requests.
But we have no way of testing the veracity of that information. One is therefore left inevitably with a Keystone Cops image of Security Service and police personnel hunting for thousands of lost mobile phones when common sense tells us that, if true, they should have better things to do.
It is the duty of the Security Service to try to uncover things about certain people. Spies spy. Rapid technological advances mean that the amount of snooping is growing at a faster rate than laws and regulations have been able to keep up with.
This makes the hairs on the back of one’s neck prick up when the situation in Malta is assessed.
Even allowing for the need to keep some things under wraps, all citizens need a clearer idea of what their surveillance agents are doing in their name
The Malta Security Services Act was introduced 18 years ago. Its powers of secret surveillance are sweeping. It has access to all of Malta’s telecommunications firms, enabling it to monitor all land-lines, mobiles, e-mails and internet. It can by-pass the telecommunications companies and eavesdrop without their having any knowledge of it.
The law bars the disclosure of the Security Service’s spying capability and how many interceptions have been conducted is not divulged – despite such information being common practice in other EU countries.
The only significant oversight comes from the Security Committee under the Prime Minister, which does not go into individual cases to verify that due care has been taken, but looks at aggregate data. There is an appointed Security Commissioner (a retired judge), but his day-to-day role is limited.
He submits an annual report to the Prime Minister, but the latter may decide to exclude material from this when it goes to the Security Committee.
The crux of one’s concern, however, is that interception warrants are issued solely on the judgement of the Minister for Home Affairs – a politician, not a judge, with all the implications in this polarised society that this implies. It is difficult to avoid looking at personalities, but after 18 months, given what we know of the Home Affairs Minister, can the nation place blind trust in his judgement?
The debate over the government’s surveillance of private citizens comes down to a contest between maintaining security and preserving individual privacy.
Powerful arguments can be advanced that either one is more important than the other. My instinctive inclination is in favour of action being tilted towards actual security over abstract privacy. But the reality is that a balance must be struck.
However, the problem in Malta is two-fold. First, as the Merkel episode demonstrated, an increased capacity for surveillance will always be abused by those who control it. Secondly, while that may sound alarmist, the distinction between gathering information on someone because you should – say, to catch criminals or to foil terrorist threats – and garnering information on someone because you can, must be made crystal clear to security services.
Their democratic and parliamentary oversight and control must be assured.
Intelligence-gathering in a democracy depends for its legitimacy on informed consent, not simply on blind trust. In Malta we do not have informed consent. And we would be foolish to place blind trust in our politicians.
There is a trust deficit. The key question we should ask is: is the level of public scrutiny by the Security Committee, Parliament and the courts adequate and are there sufficient rights of redress against Malta’s Security Service?
Public scrutiny should be a condition for popular backing. Even allowing for the need to keep some things under wraps, all citizens need a clearer idea of what their surveillance agents are doing in their name.
Constant vigilance is needed by our security and intelligence services to guard against the threats of criminals or violent extremists. But this must be matched by constant vigilance to ensure it does not come at the cost of individual freedom and liberty. The current lack of public accountability of the Malta Security Service should be rectified. The power vested solely in the Home Affairs Minister should be made subject to the issuing of judicial warrants.
Proper parliamentary scrutiny through the establishment of a Select Committee on Security with powers of democratic oversight of the Security Services should be introduced.
We can then sleep more easily knowing that some form of checks and balances on spooks and politicians are in operation.