Tuesday, 28 March 2017
Populism and Privacy - UN Special Rapporteur on Privacy
2015-2017 have seen agrowing tendency, especially though not exclusively in Europe, to indulge in “gesture-politics”. In other words, the past eighteen months have seen politicians who wish to be seen to be doing something about security, legislating privacy-intrusive powers into being – or legalise existing practices – without in any way demonstrating that this is either a proportionate or indeed an effective way to tackle terrorism.
b. The new laws introduced are predicated on the psychology of fear: the disproportionate though understandable fear that electorates may have in the face of the threat of terrorism. The level of the fear prevents the electorate from objectively assessing the effectiveness of the privacy-intrusive measures proposed.
c. There is little or no evidence to persuade the SRP of either the efficacy or the proportionality of some of the extremely privacy-intrusive measures that have been introduced by new surveillance laws in France, Germany, the UK and the USA. Like Judge Robart in the recent case on the immigration ban in the USA, the SRP must seek evidence for the proportionality of the measures provided for by laws. In the same way as Judge Robart asked as to precisely how many cases of terrorism were carried out since 2001 by nationals of the states subjected to the immigration ban, the SRP must ask as to whether it would not be much more proportional, never mind more cost-effective and less privacy-intrusive if more money was spent on the human resources required to carry out targeted surveillance and infiltration and if less effort were expended on electronic surveillance. This, in a time when the vast majority of all terrorist attacks were carried out by suspects already known to the authorities prior to the attacks.
d. There is also growing evidence that the information held by states, including that collected through bulk acquisition or “mass surveillance” is increasingly vulnerable to being hacked by hostile governments or organised crime. The risk created by the collection of such data has nowhere been demonstrated to be proportional to the reduction of risk achieved by bulk acquisition.
e. Furthermore, the abuse of data collected by bulk acquisition remains a primary source of concern. Without necessarily casting aspersions on the incoming US administration, the concerns expressed in that context by a senior HRW researcher are worth reproducing: “In the US, the National Security Agency continues its information dragnet on millions of people every day, despite modest reforms in 2015. Now the keys to the world’s most sophisticated surveillance apparatus have been handed over to a candidate (who) threatened to imprison his political opponent, register and ban Muslims, deport millions of immigrants, and menace the free press.” While the checks and balances existing in the USA or indeed the ethical standards of the Executive itself may hopefully push the US away from the realisation of such risks, the point being made here by the SRP is that once the data sets produced by mass surveillance or bulk acquisition exist and a new unscrupulous administration comes into power anywhere in the world, the potential for abuse of such data is such so as to preclude its very collection in the first place.
f. RECOMMENDATION: Desist from playing the fear card, and improve security through proportionate and effective measures not with unduly disproportionate privacy-intrusive laws “I don’t believe that any form of leadership is best exercised by using fear. True political leadership does not play the fear card” 
 Cynthia Wong, Surveillance in the age of populism” Human Rights Watch last accessed on 12th Feb 2017 at https://www.hrw.org/news/2017/02/07/surveillance-age-populism