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«Compiled and edited by Simon Davies June 2014 A Crisis of accountability 2 Contents Contents Acknowledgments ...»

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The Dutch government’s response to the revelations has been extremely weak: ambiguous answers, systematic denial and avoiding any strong position. Whenever possible, the government pointed towards Europe for a response. The reason for this lack of outrage is evident: the Dutch intelligence services have close ties to their American and British counterparts. The debates within the parliament have been fierce, but rarely profound. A report of the intelligence services oversight committee on the use and sharing of information by the intelligence services has been critical about the trust-based cooperation with the NSA, amongst other points.

The Snowden revelations coincide with a review of the Dutch law governing the intelligence services. The most striking part of this review is the introduction of a massive and untargeted wiretap competency, similar to the powers of both the NSA and the GCHQ that were highlighted by Snowden.

British intelligence is quoted in one of the leaked documents stating “the Dutch have some legislative issues and they need to work through before their legal environment would allow them to operate in the way that GCHQ does” and that GCHQ is “providing legal advice.” The proposal for the new powers is, at best, delayed by the Snowden revelations, but it's definitely not A Crisis of accountability 60

off the table.

The most notable event outside of politics and media is the law suit against the Dutch State, brought forward by a coalition of NGO's and citizens. The coalition demands a prohibition of the use of data of others by Dutch intelligence services if this data has not verifiably been obtained in accordance with Dutch law. Their proceedings made clear the government misinformed the general public and the parliament, almost leading to the resignation of the responsible minister.

Possibly the best result of Snowden's revelations: citizens and companies are slowly realizing they should turn to themselves for protection against government snoops. There is a considerable rise of crypto parties, where research journalists and ordinary citizens are taught how to protect one's online communications.

Correspondent: Rejo Zenger,A Crisis of accountability 61

Pakistan The leaks from NSA whistleblower, Edward Snowden, did not initially attract local attention in Pakistan. This situation, however, changed on September 1, 2013, with the publication of a leak specifically pertaining to Pakistan. A Washington Post report had revealed that the U.S. intelligence agencies intensely focus on Pakistan (a U.S. ally), to the same extent that it scrutinises adversaries such as Iran and North Korea. This disclosure triggered uproar and discomfort both in political and in civil society sections of the country.

This situation had a devastating impact on the free speech narrative in Pakistan, which was already marred as freedom of speech and expression are largely seen as a western motion. The extent to which the NSA spied on civilians across the world further polarised the debate for open access in Pakistan. Activists now fight the argument that "if the citizens of United States of America can't have these rights; how can you?" The NSA leaks did not have any major impact on Pakistani policies or legislation until very recently (as discussed below). Local media has focused primarily on U.S. and the NSA at the centre of surveillance issues. Despite the primary focus, media does cover, from time to time, local updates, legislations, and civil society calls for banning surveillance in the local fora especially after the finding of FinFisher’s presence in Pakistan.

Pakistan did not see any massive scale public demonstrations against the human rights abuses that Pakistan is involved in (as leaked in the report), or NSA snooping over Pakistani government and agencies. However, this did not deter civil society groups from organising online. Under the flagship of The Day We Fight Back, civil society organised a local campaign titled Jasoosi Band Karo was strategised to push the government for better policies to protect citizen privacy and stop mass surveillance.

–  –  –

overseas intelligence networks. The NCSC bill presents a formulation of a national level council with functions and powers to develop and draft policy and governance models with the emerging cyber security threats.

This Draft bill seeks to take institutional steps to combat one of the major nontraditional, non-military threats the country is facing. If the Council draft bill is passed by the parliament, it would result in the establishment of a dedicated mechanism specifically assigned to draft policies, guidelines and strategies on cyber security issues. NCSC will also allow the council and its members to monitor relevant legislations and devise strategic plans with a ten and twentyyear vision in accordance with international best practices.

The Cyber Security Council bill appears on the surface to be a progressive step towards formulating and strengthening policies around cyber security.

However, while the bill emphasises the facilitation of communications between government, academia and corporate entities, it has clearly no provision for recognising human rights activists or civil society entities working on digital security. This is essentially what makes the bill rxtremely worrisome.





This draconian bill in its current form authorises Council and its members with enormous powers with little or no opportunity for challenge. The bill also lacks any provisions on safeguarding citizens’ privacy and freedom of expression while the council conducts its functions.

There have been no specific court cases related to the NSA revelations.

However, the existing cases brought against Pakistan over its use of the FinFisher spy suite and over blocking YouTube for an indefinite duration have not yet seen any tangible outcomes. Yet, these efforts have made headway into creating more awareness regarding these issues, developing case law and highlighting the importance of amicus to support litigation concerning human rights issues. Civil society activists also consider that forcing government to the court actually alienates the government further from working alongside activists.

Pakistan is yet to see any major development in terms of transparency and accountability in the country, however improved net security legislation and privacy bills are expected to be introduced.

–  –  –

Poland In Poland, Snowden’s disclosures concerning the National Security Agency’s mass surveillance programs did not result in any meaningful political reactions. From the very beginning of this scandal it was clear that among most influential decision makers there was no political will to respond to the alleged cooperation of Polish agencies with American counterparts or demand explanations regarding the surveillance of Polish leaders. Neither the government nor Polish society visibly opposed US practices or demanded explanations and the stopping of mass surveillance (1).

Even though Polish media broadly reported Snowden’s disclosures, that coverage has not led to a significant public outcry in Poland. Human rights advocates and the tech community were quite isolated in their demands for more information and more accountability. Parliamentary commissions responsible for democratic oversight in the area of national security and foreign policy didn’t bother to invite members of the government for a hearing.

Even opposition leaders who would normally be the first ones to criticise the government this time remained silent (2). In the midst of public debate triggered by his disclosures, Snowden's request for asylum in Poland was rejected. Minister of Foreign Affairs Radosław Sikorski announced his decision on Twitter, claiming that Edward Snowden did not provide all needed documents to start asylum procedure.

In October 2013 three human rights organisations – Panoptykon Foundation, Helsinki Foundation for Human Rights and Amnesty International Poland – filed 362 FOIA requests containing very detailed questions about Polish involvement in US mass surveillance programmes, international cooperation among intelligence agencies, political reactions to Snowden disclosures and measures adopted by Polish authorities to protect the secrecy of their communication. Until now they have not received answers to the key questions because relevant information was treated as classified or was simply refused on the ground that government bodies do not have such knowledge (3). However, one aspect has been confirmed by Polish authorities in their responses: lack of strong political reaction to Snowden’s disclosures.

Apart from a simple diplomatic note sent by the Ministry of Foreign Affairs in A Crisis of accountability 64 June 2013, no further steps have been taken. Legal cases concerning the unanswered questions are still pending.

Summing up, there is no indication that Snowden’s disclosures will bring any substantial changes in rules governing cooperation among intelligence agencies or the responsibility of internet service providers for sharing data with such agencies in Poland. On the other hand, undoubtedly these disclosures have had a positive impact on public awareness concerning blanket surveillance of telecommunications and its human rights implications.

1) Bodnar, K. Szymielewicz, Poland's citizens need to know the impact of Prism on their lives, The Guardian, 16 October 2013, http://www.theguardian.com/commentisfree/2013/oct/16/poles-prismpoland-surveillance-threat;

2) K. Szymielewicz, Silence remains the easiest answer, openDemocracy.org http://www.opendemocracy.net/can-europe-makeit/katarzyna-szymielewicz/silence-remains-easiest-answer-polishnonreactions-to-snow

3) Panoptykon Foundation, 100 questions on surveillance to Polish authorities, http://panoptykon.org/node/6598

–  –  –

South Africa South Africa is physically a great distance from where Edward Snowden made his revelations – but these revelations nevertheless struck home. In South Africa, the plight of whistleblowers is of growing importance, with their social, economic and physical safety increasingly under threat.

Snowden’s revelations highlighted the escalating powers being bestowed on security agencies shadowed by the broad veil of ‘national security concerns’.

And South Africa is no different. The past few years have seen a growing centralisation of power by our State Security Agency, and concurrently tightening restrictions on the flow of information - as exemplified in the muchmaligned Protection of State Information Bill.

Snowden’s revelations brought whistleblowing into the public consciousness, and sent a positive image of the impact whistleblowers make. In a country like South Africa, this is invaluable as we struggle to shake off the Apartheid legacy of associating the whistleblower with the ‘impimpi’ (police informants) – a concept that those with things to hide have abused to keep the knowing silent. Here, corruption is rampant. And the role of the whistleblower has never been more important. But it is only when the common understanding of the whistleblower as a valuable member of an open society becomes broadly accepted, that our work to advance the cause of whistleblowers can gain real traction.

And that traction has begun. In the beginning of April, ODAC and the University of Cape Town's Democratic Governance and Rights Unit cohosted a multi-stakeholder consultation to shape the course for increased whistleblower protections. South Africa's Public Protector, Advocate Thuli Madonsela (one of Time Magazine’s 100 Most Influential People) presented at the meeting – highlighting how the international perception of whistleblowers and the fight against corruption can influence the South African experience.

We have extensively documented the plight of the South African whistleblower. Edward Snowden highlighted the universality of this plight, and has helped to re-invigorate the call to protect all legitimate whistleblowers, as the voices of a vigorous and open democracy.

A Crisis of accountability 66

Correspondent: Gabriella RazzanoA Crisis of accountability 67

Spain When the Snowden revelations were published in June 5th, 2013 only one Spanish paper, El Pais, gave them space on its front cover, but only on June 7th and in the following terms: ‘US justifies mass surveillance on security grounds’. What made front cover, then, was the official US reaction and not the revelations.

This caution and privilege of the official response has been the norm in the media debate in Spain. Together with the government dismissal of US surveillance as an issue, this has greatly determined the public debate on the effects of mass surveillance. In mid-June, the Spanish government issued a statement declaring that ‘if a citizen is aware that something strange is happening, they should address the national security forces so that an investigation is undertaken’. The Spanish Data Protection Agency, in its turn, declared that EU authorities had already reacted by requesting more information from the US and that this matter had to be dealt with at the continental level.

In July Edward Snowden approached the Spanish government to request asylum, through the embassy in Moscow, and was told that he should be on Spanish soil to process the request (he was in Hong Kong at the time) and that his request had no legal effects due to the procedure used to present it.

Shortly after, Evo Morales’ presidential plane was denied the right to fly over Spain on the suspicion that he may be travelling with the whistleblower. He was only allowed to refuel in the Canary Islands after Bolivia agreed to the plane being searched - a clear violation of that country’s sovereignty.

In spite of this, at the parliamentary level, the Snowden revelations have made their way to Congress, even if always at the request of the opposition and yielding poor results in terms of transparency and accountability. In July 2013 the United Left party filed a series of questions on the possibility for Snowden to acquire asylum status in Spain, and whether any steps had been taken to protect his life and freedom of expression. The government replied in September elaborating on the procedure to request asylum and its compliance with the existing legal framework.



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