Surveillance Law Research Articles

The State of Communication Surveillance Law in Nigeria: Fit for Purpose or Need for Reform?

The State of Communication Surveillance Law in Nigeria: Fit for Purpose or Need for Reform?

Framing a human rights approach to communication surveillance laws through the African human rights system in Nigeria, South Africa and Uganda

Today, in any society where crime is possible, communication surveillance is a necessary evil. This is because technologies now offer faster means of preventing crime while they are also capable of undermining the right to privacy. However, protecting privacy should not be mutually exclusive of ensuring public safety. This article argues that while communication surveillance may be permissible under narrow and limited circumstances, the laws made to regulate it in Nigeria, South Africa andUganda do not comply with international human rights standards. In demonstrating this, this article analyses the major laws in these countries alongside the various international human rights principles that must be complied with in framing a rights-respecting law on communication surveillance. The major contribution of this article is that communicationsurveillance laws can be designed in compliance with international human rights standards in the countries under focus. These include Nigeria, South Africa and Uganda carrying out specific legal reforms targeted at problematic laws on communication surveillance in order to bring them in line with international human rights standards. This can also be supportedby developing a more robust set of comprehensive guidelines through the African Commission and Human and Peoples’ Rights and ensuring that Nigeria, South Africa and Uganda embark on critical and strategic training for stakeholders involved in the enforcement and implementation of communication surveillance laws in these countries.

Electronic Surveillance and Australian Journalism: Surveillance Normalization and Emergent Norms of Information Security

The electronic surveillance capabilities of law enforcement in Australia have significantly strengthened in recent years creating considerable impacts on the practice of journalism. This paper reports on Australia’s hyper-legislative approach and the normalization of surveillance reflecting on what this means for journalists’ ability to securely communicate with sources and trust the digital infrastructure that they now rely on. Interviews with 19 journalists and 2 media lawyers demonstrated that while journalists insist that surveillance laws have not impacted their willingness to cover certain stories, there are challenges especially for source protections. The laws have negative impacts on the ability and inclination of sources to cooperate with journalists, with deleterious consequences for Australian democracy. Australian journalism must be secured from electronic surveillance through law reform and capacity building of information security skills of journalists. To this end, our findings also reveal how the normalization of surveillance is being met with an emerging norm of information security awareness in journalists.

A mosaic of dovetailing laws: India’s communications surveillance regime

ABSTRACT India’s communications surveillance regime can be aptly described as a legal mosaic with different provisions in various statutes, yet they are neatly dovetailed with each other. This Conspectus paper examines India’s communications surveillance law and analyses the characteristics of the state’s surveillance power, the nature and scope of the legal restraints and procedural safeguards afforded to prevent arbitrariness, indiscriminate use and violation of the right to communications privacy. It further identifies the key issues and major decisions of the European courts on mass surveillance in post-Puttaswamy years.

Inwigilacja w parlamencie. Analiza procesu legislacyjnego projektów dotyczących czynności operacyjno-rozpoznawczych w dobie rozwoju technologicznego

SURVEILLANCE IN PARLIAMENT: AN ANALYSIS OF THE LEGISLATIVE PROCESS OF PROJECTS CONCERNING SECRET SURVEILLANCE IN THE ERA OF TECHNOLOGICAL DEVELOPMENT Secret surveillance is one of the core activities of the intelligence services. Covert collection of information about individuals is often necessary for the effective performance of their tasks. On the other hand, the development of information technologies enables mass and virtually unlimited covert surveillance, thereby compromising democratic values such as privacy or transparency. Thus, balancing security and individual rights requires the creation of appropriate legal and political checks on surveillance. The responsibility for delineating the permissible boundaries of surveillance authorities rests primarily upon parliaments. However, Polish surveillance law tends to successively expand surveillance powers at the expense of the constitutional balance, as confirmed by multiple Constitutional Court rulings. One of the theories put forward to explain this fact is the regulatory capture theory, according to which legislators, through close cooperation with intelligence agency personnel, adopt the latter’s perspective and values, becoming co-opted to further their interests. This is exacerbated because the intelligence personnel has greater expertise on surveillance issues, and, as noted by J. Widacki, an exceptional capability to charm discussants, strong motives for exercising it, and substantial experience with significant successes in this area. This article seeks to ‘un-charm’ this area. Through a combination of quantitative and qualitative methods, and by reference to objective, measurable indicators, we seek to assess the extent of regulatory capture on the Polish legislative process in the area of secret surveillance, and thereby contribute to explaining the weakness of the legal and political checks on intelligence services in Poland.

The United States of Surveillance: A Review of America’s Mass Surveillance Laws, Programs, and Oversight

The United States of Surveillance: A Review of America’s Mass Surveillance Laws, Programs, and Oversight

The Regulatory Dilemma on Mass Communications Surveillance and the Digital Right to Privacy in Africa: The Case of South Africa

Behind the cloak of maintaining national security and public order, African governments and the private sector constantly encroach upon the data privacy rights of individuals. The right to privacy is not only protected by various international human rights instruments that African states have voluntarily ratified but has been enshrined in several constitutions. Yet, without proper safeguards, the same states continue to stifle the right through intrusive surveillance methods. They indiscriminately acquire, intercept, transmit, analyse and retain an individual’s data, able to be amassed to generate intimate and detailed profiles of individuals. While the right to privacy is not absolute, international human rights law requires that its limitations be legal, justifiable and reasonable 129 . Hence the purpose of this article is to determine the extent to which the South African communications surveillance law conformed to the foregoing. The article finds that the silence of the Regulation of Interception of Communications and Provision of Communication-related Information Act 130 (RICA) on mass surveillance, its weak and ineffective data privacy safeguards, insufficient oversight provisions and law enforcement officials’ impunity render the law invalid for a democratic society. Further, the new personal data law 131 has exempted national security operations from its regulation. As a result, RICA needs to be reformed, as affirmed by the recent verdict of AmaBhunghane Centre for Investigative Journalism NPC v. Minister of Justice and Correctional Services & Others 132 .

Propaganda de Medicamentos no Brasil: o que mudou?

A indústria farmacêutica utiliza a propaganda de medicamentos como principal instrumento para influenciar prescritores e promover a venda. A fim de orientar este mercado, a Regulação Sanitária brasileira iniciou-se em 1976 com a criação da Lei de Vigilância Sanitária nº 6.360. Os critérios éticos para a propaganda de medicamentos no Brasil estão orientados por normas definidas pela Organização Mundial de Saúde (OMS), em 1988, sendo a base para a elaboração da Resolução da Diretoria Colegiada 96/2008 atualmente vigente. Para entender a atual conjuntura, o presente estudo verificou a legitimidade do conteúdo das peças publicitárias de medicamentos direcionadas ao público usando como norte regulatório as exigências da Agência Nacional de Vigilância Sanitária. Dentre as não conformidades nas propagandas, pode-se destacar que 65% das peças não possuíam a frase preconizada ‘Se persistirem os sintomas, o médico deverá ser consultado’. Os resultados obtidos reiteram a necessidade de constante fiscalização das peças publicitárias, a fim de que os danos à saúde da população sejam mínimos.

Risk and Rights in Transatlantic Data Transfers: EU Privacy Law, U.S. Surveillance, and the Search for Common Ground

Privacy advocates rightly view the Court of Justice of the European Union (CJEU) decision in Data Protection Commissioner v. Facebook Ireland, Ltd. and Maximilian Schrems (Schrems II) as a landmark. But one stakeholder's landmark is another's headache. The CJEU's decision invalidated the EU-U.S. Privacy Shield agreement governing transatlantic transfers of personal data. Citing U.S. surveillance law and practices, the CJEU found that data transfers lacked adequate privacy protections under the EU's General Data Protection Regulation (GDPR). The Schrems II decision thus clouded the future of data transfers that help drive the global economy. This Article offers a hybrid approach to safeguard privacy rights and ensure the viability of transatlantic data flows. The Article's hybrid approach is an alternative to two less promising ways of reading the CJEU's groundbreaking decision. The European Data Protection Board (EDPB) issued recommendations that took an absolutist view of Schrems II. For example, the EDPB rejects reliance on risk assessments that gauge the probability of U.S. surveillance of particular data. The EDPB insists on technical measures such as steep EU-centered encryption that thwart U.S. surveillance but also bar access for U.S. firms. This absolutist approach undermines the whole point of transatlantic data transfers. Another response to Schrems II takes a don't worry, be happy tack. Heralds of optimism assure audiences on both sides of the Atlantic that most transatlantic data transfers are immune as a matter of law from U.S. surveillance, including collection under § 702 of the Foreign Intelligence Surveillance Act (FISA) or Executive Order 12333 (EO 12333). Unfortunately for this optimistic turn, U.S. surveillance authorities are sufficiently broad to reach many communications by EU individuals. In particular, § 702's provision for collecting communications related to U.S. foreign affairs lacks any intelligible limiting principle or specific review of targeting decisions. The U.S. Foreign Intelligence Surveillance Court (FISC) does not approve every target under § 702, although it has the power to scrutinize targeting procedures. Collection under EO 12333 is even broader and not subject to FISC review. In sum, surveillance optimism is a rhetorical trope, not a legal strategy. Navigating between the EDPB's absolutist approach and the heralds' unfounded optimism, this Article proposes a hybrid model. The hybrid outlines a risk-assessment method based on U.S. export controls, which have successfully managed exports of sensitive technology for decades. This model can also be a template for managing transfers of sensitive personal data. In addition, the hybrid model proposes bolstering substantive and institutional safeguards in U.S. law. For example, the Article proposes an Algorithmic Rights Court (ARC) that would probe targeting decisions under both § 702 and EO 12333. Through more precise risk assessment and reinforced institutional and substantive protections, the hybrid model preserves privacy and supports a sustainable transatlantic data transfer regime.

The rise of covert competitive authoritarianism

Globally, democracy is on the decline, threatening the achievability of the landmark Agenda 2030 Sustainable Development Goals. Digital technologies have enabled new covert competitive authoritarian tactics. Renewed surveillance laws and public and international awareness of these tactics is required to regain the global democratic rights and civil liberties required for Agenda 2030.

Intrusive tech-enabled surveillance and ‘National Security’ secrecy: mounting concerns of mass snooping amid informational asymmetry

Abstract The onset of technological innovations such as Big Data and Analytics is changing the ways in which law enforcement agencies police and investigate crimes in India. Pervasive technologies like smartphones, closed-circuit cameras, etc, coupled with such innovations have augmented abilities of law enforcement to identify, monitor and predict suspicious individuals and activities. However, the expansive adoption of intrusive technologies for law enforcement challenge the statutory and the constitutional limits on mass surveillance. Also, the government has not been forthcoming in disclosing details about the extent and the ambition of such surveillance technologies. The secrecy has resulted in an informational asymmetry between the people and the government which raises profound concerns of mistrust, transparency and public-accountability. This article examines the feasibility of the ‘national security’ argument that law enforcement agencies normatively use to justify such secrecy of their surveillance powers. They argue that such disclosures may negatively affect their investigational strategies and render them susceptible to circumvention, such that it may be a risk to ‘national security’. The article analyses such ‘national security’ secrecy claims that currently exist without any proper surveillance law and external oversight. The article seeks to recommend meaningful approaches to limit the over-broad ‘national security’ secrecy claims and initiate an informed public conversation on expansive tech-enabled surveillance practices of the Indian government.

After Schrems II: A Proposal to Meet the Individual Redress Challenge

In its Schrems II decision, the Court of Justice of the European Union (CJEU) invalidated the EU/US Privacy Shield, and cast doubt on the validity of standard contractual clauses, the principal alternative for transferring personal data from EU territory to the United States and other third countries. This article outlines a proposal for how to amend US law to meet the Court’s stated legal requirementthat an EU individual have a right to individual redress for violations of rights by US intelligence agencies. In Schrems II, the CJEU stated that privacy protections in nations receiving data from the EU must be “essentially equivalent” to those afforded within the EU, including with respect “to any access by the public authorities to the personal data transferred [and] the relevant aspects of the legal system of that third country.” The CJEU identified two ways in which U.S. surveillance law lacks essential equivalence to EU safeguards. The first, and the focus of this article, is that the US lacks an “effective and enforceable” right of individual redress. The article explains the history of the Schrems litigation and of previous EU/US negotiations on trans-Atlantic flows of personal data. Specifically, it discusses the CJEU’s finding that the Ombudsperson mechanism in the Privacy Shield for individual redress provided inadequate protections. Based on the CJEU’s decision, any future attempt by the United States to successfully address this perceived deficiency in judicial redress thus must have two dimensions: a credible fact-finding inquiry into classified surveillance activities in order to ensure protection of the individual’s rights, and the possibility of appeal to an independent judicial body that can remedy any violation of rights should it occur. For fact-finding, the authors propose that individual complaints be investigated by existing Privacy Civil Liberties Officers within the US intelligence community, or alternatively by the Privacy and Civil Liberties Oversight Board. Neither approach constitutes complete independence from the executive branch, and the possibility of such independence was narrowed by the US Supreme Court in its 2020 Seila Law opinion. The independent review required by EU law would occur upon appeal to the US Foreign Intelligence Surveillance Court, composed of fully independent federal judges. Our proposal meets the US constitutional requirement of standing by imposing a legal duty on the agencies to examine complaints similar to the duty imposed under the Freedom of Information Act. If the agency does not meet the required standard of investigation and protection of rights, the judge can order the agency to correct any violation of individual rights. Creation of this judicial review function would require new federal legislation. The article also discusses the legal standard for judicial review and suggests extending the new statutory protections to both US and EU persons. By meeting the individual redress requirements of EU law and the standing requirements of US law, the proposal complies with both EU and US law, and would be workable in practice.

Playing catch up – privacy regimes in South Asia

ABSTRACT This article is an attempt to examine the growing consolidation and harmonisation of privacy and surveillance laws in the major SAARC member nations, as well as to take stock of South Asia’s emerging privacy jurisprudence. Driven by reactions to increasingly frequent data collection and profiling attempts by the government, as well as the side effects of growing digital markets, the privacy discourse in South Asia is evolving with a heightened awareness of privacy as a core fundamental right. At the same time, some governments in the region are also keen to explore the benefits of the digital economy, and are increasingly developing economic policies that focus on the use of data as a ‘resource’ for the State and the industry. Apart from outlining these developments, the article delves into and identifies the source of privacy rights in these countries, whether derived from the constitutions of the respective countries or otherwise provided for through specific legislation. The article traces and examines the legal architectures of privacy and surveillance in the region, including national profiling databases. It then zooms out to pinpoint possible trends and influences.

Expanding learner readiness of young Swedish security officers-to-be in upper secondary school

ABSTRACT Acquiring the conceptual and contextualised vocational knowing of surveillance law that security officers require may pose difficulties for young students due to their inexperience. This article reports research on the learner readiness of 16- to 20-year-old security officers-to-be in Swedish upper secondary vocational education and training with respect to this law. The following research questions are addressed. What surveillance law is experientially emergent for upper secondary students through vocational instruction to become security officers? How is learner readiness with respect to surveillance law expressed in the students’ feedback-making during instruction to become security officers? The analysis is based on participant observations and focus group interviews with 34 students. The main finding is that the students expand their learner readiness with respect to surveillance law as they develop a novel appreciation of surveillance law as a field of interconnected meanings. Students’ knowing of surveillance law emerges through a constant interplay of four processes: addressing a commonsensical sense of justice, formulating action plans, exercising the freedom to abstain from action, and applying for legal protection. Students expand their learner readiness with respect to surveillance law as awareness of: the need to handle personal empowerment appropriately, occupational boundaries, and laws as grids for particular actions.

Frequency and Characteristics of Biological False-Positive Test Results for Syphilis Reported in Florida and New York City, USA, 2013 to 2017.

Discordant syphilis test results, with a reactive nontreponemal test and nonreactive treponemal test are usually considered biological false-positive test results (BFPs), which can be attributed to other conditions. Syphilis surveillance laws mandate laboratory reporting of reactive syphilis tests, which include many BFPs. We describe the frequency of BFPs, titer distributions, and titer increases from reported test results in Florida and New York City (NYC). Reactive nontreponemal tests for individuals with at least one nonreactive treponemal test and no reactive treponemal test were extracted from sexually transmitted disease (STD) surveillance systems in Florida and NYC from 2013 to 2017. Characteristics of individuals with BFPs were analyzed after selecting the observation with the highest titer from each individual. We next considered all results from individuals to characterize persons who had a 4-fold titer increase between successive nontreponemal tests. Among 526,540 reactive nontreponemal tests, there were 57,580 BFPs (11%) from 39,920 individuals. Over 90% (n = 52,330) of BFPs were low titer (≤1:4), but 654 (1%) were high-titer BFPs (≥1:32). Very high-titer (≥1:128) BFPs were more common among individuals over 60 years of age (odds ratio [OR], 2.68; 95% confidence interval [CI], 1.22 to 5.91). A 4-fold increase in titer was observed among 1,863 (14%) individuals with more than one reported BFP. Most BFPs detected by surveillance were low titer, but some were high titer and some had a 4-fold increase in titer. Review of patient histories might identify underlying conditions contributing to these high and rising titers.

Exploring Legal Issues in Tribal Public Health Data and Surveillance

Tribes are sovereign nations with a government-to-government relationship with the United States. Within the United States, there are 573 federally recognized Tribal nations with distinct governments, cultures, and histories. Each Tribe exercises both political sovereignty and cultural sovereignty through Tribal governance and their unique cultural teachings. As part of the exercise of this sovereignty, Tribes have the inherent authority to engage in public health activities that support the safety and welfare of their citizens. An essential component to public health practice includes the collection and surveillance of health data. Surveillance data allows for the identification of health issues as well as instances in which certain populations are being disproportionately burdened by these health issues. This data is essential to effective policy making. Law is the foundation of public health practice, including the underpinnings of public health data collection and surveillance and ensuring the privacy of such data. Much has been written on public health data and surveillance at the state and local level. Yet, Tribal law and the federal laws that define the relationships between Tribes, states, and the federal government add an additional complexity to the collection and surveillance of law for American Indian and Alaska Natives. This article explores legal issues in Tribal data and surveillance. First, this article provides a summary of Tribal public health and health care systems. Next, it outlines surveillance laws and practical challenges in Tribal surveillance. Finally, it describes some of the legal strategies used to promote effective data collection and surveillance.

Life on the Border: Dealing with Territorial Violations of the Demilitarised and Neutralised Zone of the Åland Islands

How does Finland deal in practice with instances of alleged violations of the demilitarised and neutralised zone of the Åland Islands? This is the main question in this text. We examine three levels of regulation and practice, namely international law, legislation concerning territorial surveillance and criminal law during the period 2010–2015. We examine unique materials obtained upon application. We conclude that the criminalisation presents Finland with several advantages but also some problems, in particular in matters of criminal liability. The absence of easily accessible and visible nautical and aeronautical charts indicating the coordinates of the demilitarised and neutralised zone for all those practically concerned remains a major obstacle. While the total number of reported violations remains low, the investigations confirm the continued validity of the demilitarisation regime and the intricate interplay between domestic and international law.

북한이탈주민 신변보호제도와 보안경찰

The number of people who displaced from North Korea and settled in the Republic of Korea has increased in recent years. As of the end of 2018, there were more than 30,000 peoples. The police are working to protect and support them against threat. But there is a constant controversy that the protection for North Korean defectors by the police violates the basic richts of freedom of movement and freedom of privacy. This article finds the major cause of the problem with the peace preservation police(sicherheitspolizei), who are responsible for the activities. The peace preservation police''s activities against North Korean Defectors are similar to those of security surveillance. However, North Korean Defectors are also citizen of Republic of Korea and there is no danger of recommitment of crime of the Security Surveillance Law. Nor should all North Korean defectors be subject to similar protection as witnesses of crimes. The peace preservation police cannot do well to do guardianship to assist North Korean defectors in settling in the Republic of Korea. There is no disclosure of the guidelines of police that underlie the task.

The commodification of mobile phone surveillance: An analysis of the consumer spyware industry

This article examines the attempts of ‘spyware’ developers to commodify and market their products to a general audience. While consumers of ‘spyware’ have often been government and law enforcement (Citizen Lab, 2015), there is an increasing attempt to market, sell, and commodify ‘spyware’ for use by wider audiences. ‘Spyware’ is sold as a security product commonly aimed at businesses, parents, and intimate partners. Pursuant to calls for a “sociology of security consumption” (Goold et al., 2010: 3), this article analyzes how nine prominent spyware vendors attribute meaning to their products. Spyware vendors face particularly fraught marketing challenges as the general deployment of spyware: a) is often utilized in forms of intimate partner abuse; b) is “morally troubling” from the perspective of being corrosive to many forms of social relations (Loader et al., 2014: 469); and c) has limited contexts where it could be deployed without violating surveillance laws. More specifically, this article compares the social meaning that vendors attempt to give to spyware and contrasts this with the powers of surveillance provided by the product, the marketing messages that appear to support non-consensual use, and the lack of guidance for non-consenting spyware targets to have recourse with the vendors.

‘Myths and Truths on the Internet and its Regulation’: A Report on Dr Paul Bernal's Seminar, ‘The Internet, Warts and All: Free Speech, Privacy and Truth’ by Ninso, Northumbria Internet & Society Research Group

Dr Paul Bernal’s seminar presenting his book, ‘the Internet, Warts and All: Free Speech, Privacy and Truth’ offers an insightful quest into the meaning of ‘truth’, with its unappealing features including myths surrounding the regulation of the internet, taking a holistic approach of digital policies, surveillance laws and practical perceptions on the Internet. The author engages into a lively discussion in how to understand the internet ‘with its warts and all’, arguing that in order to develop sensible laws, we need to understand the internet as a ‘creative and contradictory mess’. The conclusion is based on a series of observations, suggesting that a regulatory approach of the internet needs to be ‘subtler and nuanced’, considering the political, technological and societal implications in tackling various aspects of the internet. His book consists of an interesting collection of perspectives from various academic disciplines, as well as the author’s own opinions, to form a view on the nature of the internet that serves as one possible starting point to develop an effective regulatory approach of the internet. The book’s broad-brush approach in outlining the myths of the internet, with a focus on surveillance, privacy and freedom of speech, suggests that there is no universal formula to address the complexities of the internet while maintaining ‘freedom of speech, privacy, and truth’. The present contribution is prepared by the Northumbria Internet & Society Research Interest Group (NINSO). The NINSO group is a multidisciplinary research group that shares research interests on technology and its significance for law, computer-science, social sciences, and engineering. Being interested in a holistic outlook of technological developments, it frequently organises seminars that aim to provide opportunities for collaborations and strengthen the quality of academic research in this area.