Snowden lawyer urges consideration of effects of mass surveillance

Society needs to think about "worst case scenarios" for the use of data kept on citizens for the purposes of mass surveillance, the lawyer for NSA whistleblower Edward Snowden has said.

Ben Wizner of the American Civil Liberties Union gave a keynote address in Dublin today at the final conference of the EU-funded SECILE project, which aimed to analyse "the true impact, legitimacy, and effectiveness of EU counter-terrorism legislation since 2001".

The conference hosted by the Centre for Irish and European Security at the Royal Irish Academy examined the question: "Does counter-terrorism just counter terrorism?"

Mr Wizner told the event that democratic participation in debates about international surveillance programmes was “absolutely critical”.

He said his client, in putting information about such mass surveillance into the public domain, had given individuals the tools they needed in order to have such conversations with their governments.

Mr Wizner said he believed it was possible to have rules about not allowing information collected for one purpose to be used for another purpose.

He said one “very haunting” example of so-called “mission creep” was the use in the second World War of the information kept on citizens by the Dutch.

They had kept the most comprehensive population register of any country in Europe, but it had proven to be "an incredible handbook for the Germans when they rolled in".

The project found the EU had produced 239 counter-terrorism measures between autumn 2001 and summer 2013.

Assessments of those measures after their introduction had appeared to prioritise quantifiable impacts, such as economic ones, over the societal impacts.

EU counter-terrorist measures were also rarely subjected to review following their introduction, the project found.

The lack of systematic review of EU counter-terrorist measures undermined their legitimacy.

Former minister for justice and foreign affairs Dermot Ahern, who participated in the project as a former policymaker, said the US "put a gun to the heads" of the EU and Ireland to introduce certain legislation soon after the September 11 attacks on America in 2001.

Mr Ahern told The Irish Times the project had examined the whole issue of whether anti-terrorism laws in the wake of 9/11, the Madrid bombing and the London bombings were "rushed in, more or less crisis driven", whether there had been any proper analysis of their impact and whether they had been effective.

“I think the EU would say they were legitimate in that they had the legal basis to do it, although that would obviously be subject to court,” he said.

He said he had personally been in favour of measures such as the retention of phone and internet records in order to solve crime.

“But obviously when you see the revelations from Snowden and in relation to widespread mass surveillance, that does knock back your confidence in relation to some of the measures that have been brought in.

“Having said that, while it seems nonsensical to have mass surveillance and that you should have more targeted surveillance, the reality is that 9/11 and the London bombing and the Madrid bombing came out of left field. I think the vast majority of people were not under surveillance.”

The SECILE project had also assessed whether such measures affected ordinary people’s lives, he added.

“I think while there has been a reasonable examination of some of (the laws), it’s been piecemeal.”

Mr Ahern, who served as minister for foreign affairs from 2004 to 2008 and as minister for justice from 2008 to 2011 in Bertie Ahern’s Fianna Fáil governments, said that when 9/11 happened “ there was a massive rush to bring in legislation”.

“I had to go to America on a number of occasions when I was foreign minister to try and find out what the Americans wanted in relation to passport control because they had told Europe and Ireland that if we didn’t have biometric passports by a certain date our people wouldn’t get in and out of America.”

“The gun was put to our heads, in effect.”

Mr Ahern said he had reported to Cabinet on a regular basis on the implementation of directives such as the Data Retention Directive.

The Court of Justice of the European Union found in April that the directive was invalid because it was a disproportionate form of mass surveillance and a violation of Europeans' human rights and personal privacy.

“I understand the rationale behind retention of data, because the people I would have dealt with in the security services would say to me that even in relation to ordinary crime, without the use of being able to interact from a technology point of view with the internet providers and also the telecoms providers, we wouldn’t be able to solve our crimes,” Mr Ahern said.

“So that’s a very important tool and I fully understood that and that would have been one of the rationales behind that and I would’ve been personally in favour of that.”

The results of the 18-month project - the first EU project of its kind - were presented by the project co-ordinator, Prof Fiona de Londras of Durham University.

Legal scholars, civil rights advocates, EU officials and military and naval representatives discussed the report’s findings from a range of counter-terrorism perspectives.

The full results of the report are available at secile.eu