The surveillance state is fighting for its life

Posted 06 July 2013 Written by Ciaran Ryan
Category Transparency

UN Secretary General Ban Ki-moon has criticised NSA whistleblower Ed Snowden for “misuse” of government data.

Excuse me?

What about the galactic-scale misuse of private data by the US National Security Agency (NSA) where Snowden recently worked?

South Africans should realise by now that all of their emails and potentially other electronic communications reside on a giant server somewhere in the US for possible scrutiny at a later stage. Try as you might to live an honourable life, that angry and ill-conceived email you wrote five years ago to a former boss or ex-wife could be dredged up some time in the future to paint you in a particularly unflattering light. South Africans should also realise that our own intelligence agencies standardly break the law by snooping without warrants, as the Mail and Guardian reported.

Some congressmen in the US are calling for Snowden’s arrest for treason, while Mr Apprentice himself, Donald Trump, thinks he should be assassinated. Even more shocking is the response from US media outlets, more concerned with investigating Snowden’s personal life than the staggering revelations of government abuse he has disclosed to the world (and, by all accounts, will continue to do).

Last week Spain, Portugal and France prevented over-flight of a plane carrying Bolivian president Evo Morales on the grounds that it was believed to be also carrying Snowden, which it was not. These same countries were quite happy to allow suspected "terrorists" to be renditioned (for torture) over their air space by the CIA, but not the president of a peaceful nation. 

The surveillance state is terrified. It will not go down without a fight. A principle of investigative journalism: he who protests the loudest has most to hide. Bear that in mind next time you hear shrill defence of the surveillance state. Where is the evidence that any of this mass snooping has made us any safer, other than pompous assurances from self-serving intelligence apparatchiks? Civil libertarians have long arued that the state amplifies fears over terror and crime to arrogate unto itself greater and more draconian powers. Hence, the "war on terror," "war on drugs," "war on poverty." Unwinnable wars, all of them, but unarguably noble and saleable to the gullible. To win these wars, the state needs access to our emails and phone calls. It needs to know where we live and where we bank, hence the ridiculous RICA and FICA laws.

But surely if you have done nothing wrong you have nothing to fear? That's the standard argument of politicians and bureaucrats who sup at the trough of trashed civil liberties. The answer to that is: what about the presumption of innocence, embodied in common law for centuries? There is indeed a war going on here, but not the one we're told. That war is between liberty and tyranny, between ruler and ruled.  It manifests itself in many ways, such as surveillance cameras, FICA, RICA, ID documents. We accept these encroachments as if they are normal, believing they somehow serve our interests.

What about the crime-fighting surveillance cameras in Johannesburg and Cape Town, or those placed in residential developments? That’s a matter for residents to decide, and on the face of it does not constitute an invasion of privacy. Grabbing your emails without permission certainly does. That’s private property, protected by the Constitution.

It’s time to turn the surveillance apparatus on those in power. These, after all, are public servants we employ and they have forfeited their right to privacy by acceptance of office. We have not.

Section 14 of the Bill of Rights entrenches the right to privacy:

Everyone has the right to privacy, which includes the right not to have :
a) their person or home searched;
b) their property searched;
c) their possessions seized; or
d) the privacy of their communications infringed.

Remember this any time you hear a politician or political lackey defend the right to snoop on your emails and phone calls, or to prevent disclosure of their misbehaviour. I’m all in favour of the press being accountable, of the Press Ombud, defamation laws and other remedies for those who have been wronged. The problem is the law is used aggressively by those in power to silence exposure of their wrong-doing.

The surveillance state is terrified of the backlash now spreading across the globe. They will do everything to downplay it, to discredit Snowden and other whistleblowers, to concoct a new distraction (war, anyone?).

Because what is happening on the streets of Cairo is the future for corrupt politicians the world over.

In 2007 the SA government made a full frontal assault on the Bill of Rights when it drafted the National Key Points and Strategic Installations Bill, which designated more than 200 “national key points” for security purposes.

The National Key Points Act was passed in 1980, while PW Botha was prime minister, and criminalises the release of security information relating to key points. A revised draft of the bill was released in 2007 which would leave it to the discretion of the Minister of Safety and Security to decide what constituted a national key point. The problem is, no list of these key points has ever been published, and rights group Right2Know has pointed out that most of these are privately owned. Should this outrage ever make it into law, you can imagine the line of lobbyists outside the minister’s door pleading to have their property added to the key point list.

“The list of key points itself is secret, and the continued application of the law has become increasingly controversial, in particular after it was invoked to refuse the release of information relating to security upgrades to President Jacob Zuma’s residence at Nkandla, in KwaZulu-Natal,” according to Business Day.

Then there was the Secrecy Bill, arguably the most divisive piece of proposed legislation to be tossed our way in two decades, though it has since been softened by removing some of its more egregious invasions of civil liberties. Its intent is clear: to silence criticism of those in power.

According to Sunday Times, in March this year the Sereti Commission decided to give the ANC and its leaders a “free pass” on the Arms Deal “without interrogating any party officials or examining its bank accounts.” (Noseweek)

It’s too late. Events have taken over. As Defenceweb and Mail & Guardian reported, German police have prepared an extensive report on bribes paid to ANC politicians, detailing a bribe deal concluded with senior ANC MP Tony Yengeni.

It has long been alleged that the R7 billion Arms Deal was little more than a slush fund for senior politicians. This explains attempts to stifle investigation into the matter. Judge Willem Heath, appointed to investigate the matter, was sidelined, as was ANC MP Andrew Feinstein, who raised uncomfortable questions about the deal with his ANC colleagues. Likewise, the auditor-general was persuaded to “water down” a report into the Arms Deal.

That’s how power works. It circles the wagon when under attack and later pleads for curbs on the intrusive powers of the press. The now-defunct News of the World, with its illegal snooping on celebrities and the Leveson Inquiry that followed, has done a huge disfavour to investigative journalism. It fired the anti-press bandwagon into the fast lane, cheered on by politicians, in the belief they now had the press on the ropes.

Snowden’s revelations may yet prove to be the turning point not just for the Obama presidency, but for power elites the world over. To drive the point home, we need to see criminal charges against those who have broken the law. This is not just a case about breaking the law. This is the case that will determine whether or not we have a government that serves the people, or a government that has the right to do whatever it likes, citing “security” or “terrorism” or whatever bogeyman it deems convenient in its relentless war against civil rights. 

Related stories:

SA targeted by British and NSA spooks
SA spying worse than the US
NSA whistleblower says everyone is being spied on

Relevant Legislation:
Protection of State Information Bill (Secrecy Bill)
Constitution of the Republic of South Africa
Promotion of Access to Information Act

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