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

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Following the Snowden revelations, Max Schrems of Europe v. Facebook made a complaint to the Data Protection Commissioner regarding Facebook’s involvement in the PRISM programme. Mr. Schrems sought a formal investigation of access by US authorities to personal data transferred from Facebook-Ireland to Facebook Inc. in the US. [6] The Data Protection Commissioner refused to carry out an investigation on the basis that the European Commission’s “Safe Harbour” decision prevented him from examining the actions of US authorities in relation to data transferred under Safe Harbour. Mr. Schrems brought a judicial review against that refusal, and a decision is now pending from the High Court. [7] Whatever the outcome of that decision, the case highlights an important gap in European practice, which currently does not seem to have an effective mechanism to examine abuse of European citizens’ data when transferred abroad.

Government and parliamentary action The Irish government has made only token protest to the US and has not investigated possible breaches of Irish law. As summarised by the political

correspondent of the Irish Times:

“It is beyond dispute that the Coalition is collectively reluctant to shout or complain too loudly or make any probative inquiries as to whether the bugging and covert surveillance that has occurred in Germany, France and elsewhere has happened in Ireland.” [4] Individual opposition and backbench members of parliament have raised the issue, but the Irish parliament has not held any formal inquiry, debate or vote prompted by the Snowden revelations.

Professional organisations There does not appear to have been any formal response by any of the professional bodies (such as those representing lawyers and doctors) which one might expect to safeguard the privacy of communications.

Reforms There is nothing currently on the table prompted by the Snowden revelations;

however a number of domestic factors including possible police abuse of surveillance powers and the success of Digital Rights Ireland in challenging the Data Retention Directive may collectively lead to some reform of national law in the mid term. [8] [9] [10]

–  –  –

[2] Derek Scally, “Ireland: prisoner of Big Tech?”, Irish Times, 3 May 2014, http://www.irishtimes.com/news/technology/ireland-prisoner-of-big-techStatement by Minister for Justice, Equality and Defence, Alan Shatter TD, on judgement in the case of an application for a provisional arrest warrant in relation to Edward Snowden”, 8 July 2013, http://www.justice.ie/en/JELR/Pages/PR13000279.

[4] Harry McGee, “Government parties show divergent views on spying issue”, Irish Times, 1 November 2013, http://www.irishtimes.com/news/politics/government-parties-show-divergentviews-on-spying-issue-1.1579693.

[5] Attorney General v. Snowden [2013] IEHC 308, http://www.bailii.org/ie/cases/IEHC/2013/H308.html.

[6] Noel Baker, “Judicial review of Facebook PRISM case to be heard this week”, Irish Examiner, 28 April 2014, http://www.irishexaminer.com/ireland/judicial-review-of-facebook-prism-caseto-be-heard-this-week-266720.html.

[7] Mary Carolan and Genevieve Carbery, “Data Commissioner decision challenged by Facebook user”, Irish Times, 29 April 2014, http://www.irishtimes.com/news/crime-and-law/courts/data-commissionerdecision-challenged-by-facebook-user-1.1777930.

[8] C-293/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General http://curia.europa.eu/juris/documents.jsf?num=C-293/12 [9] Conor Lally, “Bugging found at offices of Garda complaints watchdog”, Irish Times, 9 February 2014, http://www.irishtimes.com/news/crime-andlaw/bugging-found-at-offices-of-garda-complaints-watchdog-1.1685345.

[10] Stephen Collins, Conor Lally and Fiach Kelly, “Government fears recording of phone calls at Garda stations may threaten convictions”, Irish Times, 26 March 2014, http://www.irishtimes.com/news/politics/governmentfears-recording-of-phone-calls-at-garda-stations-may-threaten-convictions

–  –  –

Kenya The overall impact of the revelations by Snowden22 on NSA’s surveillance in Kenya23 is that there has been very little discussion from Kenyans. This can be noted by the few Kenyan media reports24 on the same or online discussions on the impact of the revelations on Kenyans. This is despite Kenyans having a right to privacy under the 2010 Constitution of Kenya under

Article 31, that states:

“Every person has the right to privacy, which includes the right not to have— (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed.” We can also note that the 2010 Constitution of Kenya requires that the Parliament legislates on a Data Protection Bill but we can note that it is yet to be legislated upon. We can also note that Kenyan internet is ranked as free25, but there has been evidence of Blue Coat Devices capable of filtering, censorship, and surveillance.26

Scale and nature of media reporting

The nature of media reporting in Kenya was mostly a reproduction of news27 from major international news agencies with viewership/ readership in Kenya such as CNN, Aljazeera, the Guardian, and New York Times among other international media. Most of the reports did not address local/ national 22 https://en.wikipedia.org/wiki/Global_surveillance_disclosures_(2013%E2%80%93present) 23 https://firstlook.org/theintercept/article/2014/05/19/data-pirates-caribbean-nsa-recordingevery-cell-phone-call-bahamas/ 24 http://www.standardmedia.co.ke/mobile/?articleID=2000121935&story_title=Kenya:%20wikile aks-us-eavesdrops-on-kenyans-calls 25 http://www.freedomhouse.org/report/freedom-net/2013/kenya 26 http://www.academia.edu/3534690/Planet_Blue_Coat_Mapping_Global_Censorship_and_Su rveillance_Tools 27 http://www.businessdailyafrica.com/Corporate-News/Kenya-key-target-as-NSA-infiltratesHuawei-/-/539550/2257126/-/1mc9fa/-/index.html A Crisis of accountability 51 involvement in surveillance and was primarily focused on the US and the NSA as a single entity except one.28 Actions taken We can note that in Kenya there has not been any consequent public action in the manner of demonstrations or large-scale campaigns that had a measurable impact.29 There have not been any reported cases brought before courts, police or judicial authorities regarding privacy or data protection.

We can however note that the Kenya Human Rights Commission and other civil society organizations have organized public awareness forums on protecting oneself online and there have also been discussions about privacy on mailing lists but these have not been very conclusive.

Reform for the future?

In January 2014, Telecommunications industry regulator, Communications Commission of Kenya (CCK), announced new regulations that gave it unfettered access30 to private or confidential information on consumers without a court order.

The powers, which are contained in a new set of regulations that has been prepared for publication in the Kenya Gazette, allow the CCK or its agents the leeway to obtain information or data held by telecoms operators.

We can note that even the above incident did not capture media attention in Kenya apart from a single media outlet and a few blogs.

This is also not the first time that the regulator is mentioned31 in an attempt at infringement on privacy32 - all in the name of cyber security.33 In Kenya there is no hard evidence that there will be a future development that will bring reform or transparency to the security arena given the major telco in Kenya is openly building a surveillance system for the government and this has not met a major call for transparency from the company.

Correspondent: Ephraim Percy Kenyanito

28 http://www.thejackalnews.com/politics/kenyan-security-agencies-also-unlawfully-interceptyour-phone-calls-and-emails 29 http://www.nation.co.ke/oped/Letters/The-spying-ogre-will-eat-all-of-us-including-MPs-/a8a7rg/-/index.html 30 http://www.businessdailyafrica.com/CCK-trashes-telecom-users--privacy-with-new-spyingrules/-/539546/2152122/-/15ltdyoz/-/index.html 31 http://allafrica.com/stories/201205181170.html 32 http://www.businessdailyafrica.com/Corporate-News/CCK-sparks-row-with-fresh-bid-to-spyon-Internet-users-/-/539550/1370218/-/item/2/-/edcfmqz/-/index.html 33 http://www.trending.co.ke/cck_pushes_firms_to_host_websi-336840453.html A Crisis of accountability 52 Mexico In June 2013 – one year ago - Edward Snowden revealed to the world the true extent of the United States National Security Agency’s generalised espionage throughout the world.

When news started to break out in Mexico, there was at first no reaction from the government - even though some of Snowden’s documents detailed in the press showed that espionage involved the country directly. In September 2013, the Brazilian newspaper O Globo wrote, based on confidential documents disclosed by Edward Snowden, that the NSA had illegally wiretapped the communications of then Mexican presidential candidate, Enrique Peña Nieto, as well as some members of his cabinet (1). In October 2013, the German weekly Der Spiegel published a report, also based on Snowden’s documents, which explained that the NSA had intercepted e-mails from Mexico’s ex-President, Felipe Calderón, and the Office of the President, as part of the operation “Flatliquid”. The newspaper had also obtained access to emails of various officials at the Ministry of the Interior (Secretaría de Seguridad Pública), which is in charge of fighting against drug trade and human trafficking, in an operation called “Whitetamale” (2).

As part of the O Globo’s revelations, in one of the documents Snowden revealed to journalists, Mexico appears on a list of countries entitled “Friends, Enemies or Troubles?” while, in another, the importance of spying Mexico regarding trade issues is specifically mentioned. O Globo also stated that slides Snowden released indicate the U.S. had been making efforts gathering information on energy policy in Mexico (3) while Der Spiegel pointed that the NSA had not only obtained information about drug cartels, but also economic and political information.

Reactions in Congress Many Congressmen condemned the NSA’s espionage, considering it an intrusion into Mexico’s sovereignty. In July 2013, the Congress adopted a resolution (4) that opposed the espionage by the NSA and any action that violates Mexican citizens’ right to privacy and data protection or infringes the sovereignty of Mexican diplomatic delegations. Although the resolution criticised the potential violation of all Mexican citizens’ privacy, Congress limited itself to demand that the Federal Government ask for explanations to the US Government about the spying activities of Mexican public officers and diplomatic delegations and requested the US to stop these activities immediately and permanently.

The PRD political party had asked that Congress include a request – eventually not included in the resolution – to issue a report about spying practices and ask information from the US government about the collaboration agreements signed between the Mexican and US governments. (5) A Crisis of accountability 53 The Government’s reaction In July 2013, the Ministry of Foreign Relations (Secretario de Relaciones Exteriores) condemned the violation of the confidentiality of the communications of Mexican institutions, declaring that espionage violates international laws. That same Ministry sent a letter of protest to its counterpart in the United States, requesting a thorough investigation that clarify responsibilities and implement corrective actions. President Obama thereafter committed to his Mexican counterpart to start an exhaustive investigation. (6) On 15 January 2014, the Ministry of Public Administration (Secretaria de la Función Pública) signed a framework contract with companies, including Google and Microsoft, in order to acquire from them software licenses until 2016, despite the fact that those companies were precisely the ones found to have collaborated with the NSA and to have been the target of espionage by the same agency. This represents a reaction different than what occurred in other countries such as Sweden, where authorities have prohibited the use of Gmail and other Google applications on government platforms, and Brasil, where the government decided to develop its own tools to avoid using private communication systems based in the United States or offered by US companies. (7) On 8 May 2014, the Ministry of the Interior (Secretaría de Gobernación) and the Ministry of Public Administration issued new rules applicable to all public servants regarding the storage and management of data centers based in public institutions’ own premises, and the processing of sensitive ‘national security’ data, under an “information security government model”. (8) Academics and companies’ reactions Various academics (9), criticised the Government’s attitude, saying that they had been too timid, and, instead, praised the Brazilian Government’s reactions (10) (11). Mexican stateowned petroleum company, Petroleos Mexicanos (PEMEX) (12), which together with the Brazilian petroleum company Petrobras (13), have both been spied by the NSA, did not issue any statement; neither did private companies based in Mexico. While US companies, such as Apple, Yahoo, Google, Twitter, Microsoft, Netflix and Cisco, did oppose the NSA espionage in the U.S., their Mexican subsidiaries did not make any comments. National organisations, trades unions, professional associations and industry groups didn’t release any press release either.

In the media Despite the gravity of Snowden’s revelations, most national media did not cover them extensively. However, efforts by civil society had some impact as thousands of Internet users protested against surveillance and espionage through social networks.

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