Why We Need Constitutional Communications
The Snowden revelations have made it clear that an increasing number of governments, including the US, UK and Canada, are engaged in the indiscriminate mass surveillance of electronic communications throughout the globe. The UN defines “mass surveillance” as a situation in which “states with high levels of Internet penetration can…gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites”…“without any prior suspicion related to a specific individual or organization.”
Mass Surveillance is threatening the integrity of government on a global scale, undermining the public’s trust in the institutions that are supposed to serve them. The decision by multiple governments to pursue broad, untargeted and intrusive surveillance programs has deeply undermined government transparency. It violates the human rights of billions of people worldwide whose communications are routinely vacuumed into massive data facilities. As the UN’s Special Rapporteur, the world’s highest official for counter-terrorism and human rights, concluded, “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether.” Mass Surveillance has its strongest impacts on Muslim communities, reinforcing the exclusion of minority groups from broader societies.
In asserting that mass surveillance impinges core privacy rights the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms concludes that the policy violates Article 17 of the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories, and which the U.S. ratified in 1992.
The only proper international legal basis for surveillance operations are expressed in the “necessary and proportionate” principals codified in multiple UN resolutions.
Because of this lack of private communication on the internet business people are already transitioning to encryption en masse. A global survey of nearly five thousand businesses found encryption use has increased six percent in the past year to the point where 35% of organizations now have an encryption strategy applied consistently across the entire enterprise. In the United States, encrypted traffic has jumped from 2.29 percent of all peak hour traffic before Snowden to 3.8 percent after Snowden, and in Latin America it has gone from 1.8 percent to 10.37 percent.
More than ten global publications have embraced encrypted “dropboxes” for first contact with new sources, including The New York Times, The New Yorker, The Washington Post, and The Guardian.
While corporations and large firms have begun to adopt secure communications strategies, few foundations or civil society organizations have adopted proactive organization-wide security planning to protect themselves from mass surveillance or targeted hacking. Without a massive increase in the level of encryption used by civil society organizations, foundations and professionals, will be unable to retain integrity and public trust. This can be avoided if we train civil society organizations to encrypt their information.
The biggest difficulty in training professionals about mass surveillance and secure communications is that people are often overwhelmed by the scope of the problem. They feel hopeless, as if there is no solution. Many people have internalized the idea that there is no way to avoid mass surveillance, that “privacy is dead.” Even many professionals have assumed that it is too complicated for their organizations to use electronics securely.
All professionals are impacted, but attorneys are a key constituency that would benefit from engaging education about technology and mass surveillance. Attorneys have clear ethical responsibility to protect client data. Rule 1.6 of the Model Rules of Professional Responsibility states that, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” In 2012 the ABA modified the language of the applicable rule to impose an explicit obligation on attorneys to take positive steps to protect the confidentiality of information concerning their clients and cases. Each state bar has its own interpretation of how to define “reasonable effort.” Even before the Snowden revelations, some state bars encouraged attorneys to use encryption to protect their clients.
Unfortunately, many attorneys have uncritically assumed that it is beyond their capacity to protect their client’s information from government mass surveillance as a result few civil society or human rights organizations have adopted secure tools or useful threat modeling practices. Often human rights attorneys representing controversial clients feel that they have to “start acting like a drug dealer in order to protect [their] client’s confidentiality.” This can involve flying around the world and only using paper pads in order to properly represent their clients and uphold ethical requirements. The current approach is not sustainable, and it is hurting the work of legal organizations and civil society as a whole.
But there is a solution to global mass surveillance, and it starts in global civil society. Policy and technological solutions to mass surveillance will not be able to realize their potential impact until civil society is educated and empowered to evaluate secure communications strategies on their own. The technological tools to resist mass surveillance exist. The tech world has already developed accessible and affordable suite of tools that professionals can use to uphold their privacy rights and protect their clients from mass surveillance. But these tools will never gain the broad reach they need to be effective unless civil society organizations are educated and empowered to adopt their use. Constitutional Communications offers a long term challenge to mass surveillance and an immediate solution to an urgent problem facing all funders and civil society organizations.