15 Jan 2014 | Europe and Central Asia, European Union, Index Reports, News and features, Politics and Society
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Beyond its near neighbourhood, the EU works to promote freedom of expression in the wider world. To promote freedom of expression and other human rights, the EU has 30 ongoing human rights dialogues with supranational bodies, but also large economic powers such as China.
The EU and freedom of expression in China
The focus of the EU’s relationship with China has been primarily on economic development and trade cooperation. Within China some commentators believe that the tough public noises made by the institutions of the EU to the Chinese government raising concerns over human rights violations are a cynical ploy so that EU nations can continue to put financial interests first as they invest and develop trade with the country. It is certainly the case that the member states place different levels of importance on human rights in their bilateral relationships with China than they do in their relations with Italy, Portugal, Romania and Latvia. With China, member states are often slow to push the importance of human rights in their dialogue with the country. The institutions of the European Union, on the other hand, have formalised a human rights dialogue with China, albeit with little in the way of tangible results.
The EU has a Strategic Partnership with China. This partnership includes a political dialogue on human rights and freedom of the media on a reciprocal basis.[1] It is difficult to see how effective this dialogue is and whether in its present form it should continue. The EU-China human rights dialogue, now 14 years old, has delivered no tangible results.The EU-China Country Strategic Paper (CSP) 2007-2013 on the European Commission’s strategy, budget and priorities for spending aid in China only refers broadly to “human rights”. Neither human rights nor access to freedom of expression are EU priorities in the latest Multiannual Indicative Programme and no money is allocated to programmes to promote freedom of expression in China. The CSP also contains concerning statements such as the following:
“Despite these restrictions [to human rights], most people in China now enjoy greater freedom than at any other time in the past century, and their opportunities in society have increased in many ways.”[2]
Even though the dialogues have not been effective, the institutions of the EU have become more vocal on human rights violations in China in recent years. For instance, it included human rights defenders, including Ai Weiwei, at the EU Nobel Prize event in Beijing. The Chinese foreign ministry responded by throwing an early New Year’s banquet the same evening to reduce the number of attendees to the EU event. When Ai Weiwei was arrested in 2011, the High Representative for Foreign Affairs Catherine Ashton issued a statement in which she expressed her concerns at the deterioration of the human rights situation in China and called for the unconditional release of all political prisoners detained for exercising their right to freedom of expression.[3] The European Parliament has also recently been vocal in supporting human rights in China. In December 2012, it adopted a resolution in which MEPs denounced the repression of “the exercise of the rights to freedom of expression, association and assembly, press freedom and the right to join a trade union” in China. They criticised new laws that facilitate “the control and censorship of the internet by Chinese authorities”, concluding that “there is therefore no longer any real limit on censorship or persecution”. Broadly, within human rights groups there are concerns that the situation regarding human rights in China is less on the agenda at international bodies such as the Human Rights Council[4] than it should be for a country with nearly 20% of the world’s population, feeding a perception that China seems “untouchable”. In a report on China and the International Human Rights System, Chatham House quotes a senior European diplomat in Geneva, who argues “no one would dare” table a resolution on China at the HRC with another diplomat, adding the Chinese government has “managed to dissuade states from action – now people don’t even raise it”. A small number of diplomats have expressed the view that more should be done to increase the focus on China in the Council, especially given the perceived ineffectiveness of the bilateral human rights dialogues. While EU member states have shied away from direct condemnation of China, they have raised freedom of expression abuses during HRC General Debates.
The Common Foreign and Security Policy and human rights dialogues
The EU’s Common Foreign and Security Policy (CFSP) is the agreed foreign policy of the European Union. The Maastricht Treaty of 1993 allowed the EU to develop this policy, which is mandated through Article 21 of the Treaty of the European Union to protect the security of the EU, promote peace, international security and co-operation and to consolidate democracy, the rule of law and respect for human rights and fundamental freedom. Unlike most EU policies, the CFSP is subject to unanimous consensus, with majority voting only applying to the implementation of policies already agreed by all member states. As member states still value their own independent foreign policies, the CFSP remains relatively weak, and so a policy that effectively and unanimously protects and promotes rights is at best still a work in progress. The policies that are agreed as part of the Common Foreign and Security Policy therefore be useful in protecting and defending human rights if implemented with support. There are two key parts of the CFSP strategy to promote freedom of expression, the External Action Service guidelines on freedom of expression and the human rights dialogues. The latter has been of variable effectiveness, and so civil society has higher hopes for the effectiveness of the former.
The External Action Service freedom of expression guidelines
As part of its 2012 Action Plan on Human Rights and Democracy, the EU is working on new guidelines for online and offline freedom of expression, due by the end of 2013. These guidelines could provide the basis for more active external policies and perhaps encourage a more strategic approach to the promotion of human rights in light of the criticism made of the human rights dialogues.
The guidelines will be of particular use when the EU makes human rights impact assessments of third countries and in determining conditionality on trade and aid with non-EU states. A draft of the guidelines has been published, but as these guidelines will be a Common Foreign and Security Policy document, there will be no full and open consultation for civil society to comment on the draft. This is unfortunate and somewhat ironic given the guidelines’ focus on free expression. The Council should open this process to wider debate and discussion.
The draft guidelines place too much emphasis on the rights of the media and not enough emphasis on the role of ordinary citizens and their ability to exercise the right to free speech. It is important the guidelines deal with a number of pressing international threats to freedom of expression, including state surveillance, the impact of criminal defamation, restrictions on the registration of associations and public protest and impunity against human right defenders. Although externally facing, the freedom of expression guidelines may also be useful in indirectly establishing benchmarks for internal EU policies. It would clearly undermine the impact of the guidelines on third parties if the domestic policies of EU member states contradict the EU’s external guidelines.
Human rights dialogues
Another one of the key processes for the EU to raise concerns over states’ infringement of the right to freedom of expression as part of the CFSP are the human rights dialogues. The guidelines on the dialogues make explicit reference to the promotion of freedom of expression. The EU runs 30 human rights dialogues across the globe, with the key dialogues taking place in China (as above), Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Georgia and Belarus. It also has a dialogues with the African Union, all enlargement candidate countries (Croatia, the former Yugoslav republic of Macedonia and Turkey), as well as consultations with Canada, Japan, New Zealand, the United States and Russia. The dialogue with Iran was suspended in 2006. Beyond this, there are also “local dialogues” at a lower level, with the Heads of EU missions, with Cambodia, Bangladesh, Egypt, India, Israel, Jordan, Laos, Lebanon, Morocco, Pakistan, the Palestinian Authority, Sri Lanka, Tunisia and Vietnam. In November 2008, the Council decided to initiate and enhance the EU human rights dialogues with a number of Latin American countries.
It is argued that because too many of the dialogues are held behind closed doors, with little civil society participation with only low-level EU officials, it has allowed the dialogues to lose their importance as a tool. Others contend that the dialogues allow the leaders of EU member states and Commissioners to silo human rights solely into the dialogues, giving them the opportunity to engage with authoritarian regimes on trade without raising specific human rights objections.
While in China and Central Asia the EU’s human rights dialogues have had little impact, elsewhere the dialogues are more welcome. The EU and Brazil established a Strategic Partnership in 2007. Within this framework, a Joint Action Plan (JAP) covering the period 2012-2014 was endorsed by the EU and Brazil, in which they both committed to “promoting human rights and democracy and upholding international justice”. To this end, Brazil and the EU hold regular human rights consultations that assess the main challenges concerning respect for human rights, democratic principles and the rule of law; advance human rights and democracy policy priorities and identify and coordinate policy positions on relevant issues in international fora. While at present, freedom of expression has not been prioritised as a key human rights challenge in this dialogue, the dialogues are seen by both partners as of mutual benefit. It is notable that in the EU-Brazil dialogue both partners come to the dialogues with different human rights concerns, but as democracies. With criticism of the effectiveness and openness of the dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states in the promotion of human rights with third countries and assess whether the dialogues can be improved.
[1] It covers both press freedom for the Chinese media in Europe and also press freedom for European media in China.
[2] China Strategy Paper 2007-2013, Annexes, ‘the political situation’, p. 11
[3] “I urge China to release all of those who have been detained for exercising their universally recognised right to freedom of expression.”
[4] Interview with European diplomat, February 2013.
9 Jan 2014 | Europe and Central Asia, European Union, News and features, Politics and Society
Sokratis Giolia, an investigative journalist, was shot dead outside his home in Athens prior to publishing the results of an investigation into corruption.
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
The main threats to media freedom and the work of journalists are from political pressure or pressure exerted by the police, to non-legal means, such as violence and impunity. There have been instances where political pressure against journalists has led to self-censorship in a number of European Union countries. This pressure can manifest itself in a number of ways, from political pressure to influence editorial decisions or block journalists from promotion in state broadcasters to police or security service interventions into media investigations on political corruption.
The European Commission now has a clear competency to protect media freedom and should reflect on how it can deal with political interference in the national media of member states. As the heads of state or government of the EU member states have wider decision-making powers at the European Council this gives a forum for influence and negotiation, but this may also act as a brake on Commission action, thereby protecting media freedom.
Italy presents perhaps the most egregious example of political interference undermining media freedom in a EU member state. Former premier Silvio Berlusconi has used his influence over the media to secure personal political gain on a number of occasions. In 2009 he was thought to be behind RAI decision to stop broadcasting Annozero, a political programme that regularly criticised the government. In the lead up to the 2010 regional elections, Berlusconi’s party pushed through rules which effectively meant that state broadcasters had to either feature over 30 political parties on their talk shows or lose their prime time slots. Notably, Italian state broadcaster RAI refused to show adverts for the Swedish film Videocracy because it claimed the adverts were “offensive” to Silvio Berlusconi.
Under the government of Prime Minister Viktor Orbán, Hungary has seen considerable political interference in the media. In September 2011, popular liberal political radio station “Klubrádió” lost its licence following a decision by the Media Authority that experts believed was motivated by political considerations. The licence was reinstated on appeal. In December 2011, state TV journalists went on hunger strike after the face of a prominent Supreme Court judge was airbrushed out of a broadcast by state-run TV channel MTV. Journalists have complained that editors regularly cave into political interference. Germany has also seen instances of political interference in the public and private media. In 2009, the chief editor of German public service broadcaster ZDF, Nikolaus Brender, saw his contract terminated in controversial circumstances. Despite being a well-respected and experienced journalist, Brender’s suitability for the job was questioned by politicians on the channel’s executive board, many of whom represented the ruling Christian Democratic Union. It was decided his contract should not be renewed, a move widely criticised by domestic media, the International Press Institute and Reporters Without Borders, the latter arguing the move was “motivated by party politics” which, it argued, was “a blatant violation of the principle of independence of public broadcasters”. In 2011, the editor of Germany’s (and Europe’s) biggest selling newspaper, Bild, received a voicemail from President Christian Wulff, who threatened “war” on the tabloid if it reported on an unusual personal loan he received.
Police interference in the work of journalists, bloggers and media workers is a concern: there is evidence of police interference across a number of countries, including France, Ireland and Bulgaria. In France, the security services engaged in illegal activity when they spied on Le Monde journalist Gerard Davet during his investigation into Liliane Bettencourt’s alleged illegal financing of President Sarkozy’s political party. In 2011, France’s head of domestic intelligence, Bernard Squarcini, was charged with “illegally collecting data and violating the confidentiality” of the journalists’ sources. In Bulgaria, journalist Boris Mitov was summoned on two occasions to the Sofia City Prosecutor’s office in April 2013 for leaking “state secrets” after he reported a potential conflict of interest within the prosecution team. Of particular concern is Ireland, which has legislation that outlaws contact between ordinary police officers and the media. Clause 62 of the 2005 Garda Siochána Act makes provision for police officers who speak to journalists without authorisation from senior officers to be dismissed, fined up to €75,000 or even face seven years in prison. This law has the potential to criminalise public interest police whistleblowing.[1]
It is worth noting that after whistleblower Edward Snowden attempted to claim asylum in a number of European countries, including Austria, Finland, Germany, Italy, Ireland, the Netherlands, Spain, the governments of all of these countries stated that he needed to be present in the country to claim asylum. Others went further. Poland’s Foreign Minister Radosław Sikorski posted the following statement on Twitter: “I will not give a positive recommendation”, while German Foreign minister Guido Westerwelle said although Germany would review the asylum request “according to the law”, he “could not imagine” that it would be approved. The failure of the EU’s member states to give shelter to Snowden when so much of his work was clearly in the public interest within the European Union shows the scale of the weakness within Europe to stand up for freedom of expression.
Deaths, threats and violence against journalists and media workers
No EU country features in Reporters Without Borders’ 2013 list of deadliest countries for journalists. But since 2010, three journalists have been killed within the European Union. In Bulgaria in January 2010 , a gunman shot and killed Boris Nikolov Tsankov, a journalist who reported on the local mafia, as he walked down a crowded street. The gunman escaped on foot. In Greece, Sokratis Giolia, an investigative journalist, was shot dead outside his home in Athens prior to publishing the results of an investigation into corruption. In Latvia, media owner Grigorijs Nemcovs was the victim of an apparent contract killing, which Reporters Without Borders claims appeared to be carefully planned and executed.103 Nemcovs was also a political activist and deputy mayor, and his newspaper, Million, was renowned for its investigative coverage of political and local government corruption and mismanagement.
While it is rare for journalists to be killed within the EU, the Council of Europe has drawn attention to the fact that violence against journalists does occur in EU countries, particularly in south eastern Europe, including in Greece, Latvia, Bulgaria and Romania.[2] The South East Europe Media Organisation (SEEMO) has raised concerns over police violence against journalists covering political protests in many parts of south eastern Europe, particularly in Romania and Greece.
[1] There is an official whistleblowing mechanism instituted by the law, but it is not independent of the police.
[2] William Horsley for rapporteur Mats Johansson, ‘The State of Media Freedom in Europe’, Committee on Culture, Science, Education and Media, Council of Europe (18 June 2012).
2 Jan 2014 | European Union, News and features, Politics and Society
The law of libel, privacy and national “insult” laws vary across the European Union. In a number of member states, criminal sanctions are still in place and public interest defences are inadequate, curtailing freedom of expression.
The European Union has limited competencies in this area, except in the field of data protection, where it is devising new regulations. Due to the impact on freedom of expression and the functioning of the internal market, the European Commisssion High Level Group on Media Freedom and Pluralism recommended that libel laws be harmonised across the European Union. It remains the case that the European Court of Human Rights is instrumental in defending freedom of expression where the laws of member states fail to do so. Far too often, archaic national laws have been left unreformed and therefore contain provisions that have the potential to chill freedom of expression.
Nearly all EU member states still have not repealed criminal sanctions for defamation – with only Croatia,[1] Cyprus, Ireland, Romania and the UK[2] having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, as did both the Organization for Security and Co-operation in Europe (OSCE) and UN special rapporteurs on freedom of expression.[3] Criminal defamation laws chill free speech by making it possible for journalists to face jail or a criminal record (which will have a direct impact on their future careers), in connection with their work. Many EU member states have tougher sanctions for criminal libel against politicians than ordinary citizens, even though the European Court of Human Rights ruled in Lingens v. Austria (1986) that:
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual.”
Of particular concern is the fact that insult laws remain in place in many EU member states and are enforced – particularly in Poland, Spain, and Greece – even though convictions are regularly overturned by the European Court of Human Rights. Insult to national symbols is also criminalised in Austria, Germany and Poland. Austria has the EU’s strictest laws in this regard, with the penal code criminalising the disparagement of the state and its symbols[4] if malicious insult is perceived by a broad section of the republic. This section of the code also covers the flag and the federal anthem of the state. In November 2013, Spain’s parliament passed draft legislation permitting fines of up to €30,000 for “insulting” the country’s flag. The Council of Europe’s Commissioner for Human Rights, Nils Muiznieks, criticised the proposals stating they were of “serious concern”.
There is a wide variance in the application of civil defamation laws across the EU – with significant differences in defences, costs and damages. Excessive costs and damages in civil defamation and privacy actions is known to chill free expression, as authors fear ruinous litigation, as recognised by the European Court of Human Rights in MGM vs UK.[5] In 2008, Oxford University found huge variants in the costs of defamation actions across the EU, from around €600 (constituting both claimants’ and defendants’ costs) in Cyprus and Bulgaria to in excess of €1,000,000 in Ireland and the UK. Defences for defendants vary widely too: truth as a defence is commonplace across the EU but a stand-alone public interest defence is more limited.
Italy and Germany’s codes provide for responsible journalism defences instead of using a general public interest defence. In contrast, the UK recently introduced a public interest defence that covers journalists, as well as all organisations or individuals that undertake public interest publications, including academics, NGOs, consumer protection groups and bloggers. The burden of proof is primarily on the claimant in many European jurisdictions including Germany, Italy and France, whereas in the UK and Ireland, the burden is more significantly on the defendant, who is required to prove they have not libelled the claimant.
Privacy
Article 8 of the European Convention on Human Rights protects the right to a private life throughout the European Union. [6] The right to freedom of expression and the right to a private right are often complementary rights, in particular in the online sphere. Privacy law is, on the whole, left to EU member states to decide. In a number of EU member states, the right to privacy can restrict the right to freedom of expression because there are limited protections for those who breach the right to privacy for reasons of public interest.
The media’s willingness to report and comment on aspects of people’s private lives, in particular where there is a legitimate public interest, has raised questions over the boundaries of what is public and what is private. In many EU member states, the media’s right to freedom of expression has been overly compromised by the lack of a serious public interest defence in privacy law. This is most clearly illustrated by the fact that some European Union member states offer protection for the private lives of politicians and the powerful, even when publication is in the public interest, in particular in France, Italy and Germany. In Italy, former Prime Minister Silvio Berlusconi used the country’s privacy laws to successfully sue the publisher of Italian magazine Oggi for breach of privacy after the magazine published photographs of the premier at parties where escort girls were allegedly in attendance. Publisher Pino Belleri received a suspended five-month sentence and a €10,000 fine. The set of photographs proved that the premier had used Italian state aircraft for his own private purposes, in breach of the law. Even though there was a clear public interest, the Italian Public Prosecutor’s Office brought charges. In Slovakia, courts also have a narrow interpretation of the public interest defence with regard to privacy. In February 2012, a District Court in Bratislava prohibited the distribution or publication of a book alleging corrupt links between Slovak politicians and the Penta financial group. One of the partners at Penta filed for a preliminary injunction to ban the publication for breach of privacy. It took three months for the decision to be overruled by a higher court and for the book to be published.
The European Court of Human Rights rejected former Federation Internationale de l’Automobile president Max Mosley’s attempt to force newspapers to give prior notification in instances where they may breach an individual’s right to a private life, noting that the requirement for prior notification would likely chill political and public interest matters. Yet prior notification and/or consent is currently a requirement in three EU member states: Latvia, Lithuania and Poland.
Other countries have clear public interest defences. The Swedish Personal Data Act (PDA), or personuppgiftslagen (PUL), was enacted in 1998 and provides strong protections for freedom of expression by stating that in cases where there is a conflict between personal data privacy and freedom of the press or freedom of expression, the latter will prevail. The Supreme Court of Sweden backed this principle in 2001 in a case where a website was sued for breach of privacy after it highlighted criticisms of Swedish bank officials.
When it comes to data retention, the European Union demonstrates clear competency. As noted in Index’s policy paper “Is the EU heading in the right direction on digital freedom?“, published in June 2013, the EU is currently debating data protection reforms that would strengthen existing privacy principles set out in 1995, as well as harmonise individual member states’ laws. The proposed EU General Data Protection Regulation, currently being debated by the European Parliament, aims to give users greater control of their personal data and hold companies more accountable when they access data. But the “right to be forgotten” clause of the proposed regulation has been the subject of controversy as it would allow internet users to remove content posted to social networks in the past. This limited right is not expected to require search engines to stop linking to articles, nor would it require news outlets to remove articles users found offensive from their sites. The Center for Democracy and Technology referred to the impact of these proposals as placing “unreasonable burdens” that could chill expression by leading to fewer online platforms for unrestricted speech. These concerns, among others, should be taken into consideration at the EU level. In the data protection debate, freedom of expression should not be compromised to enact stricter privacy policies.
This article was posted on Jan 2 2013 at indexoncensorship.org
[1] Article 208 of the Criminal Code.
[2] Article 168(2) of the Criminal Code.
[3] Article 248 of the Criminal Code prohibits ‘disparagement of the State and its symbols, ibid, International PEN.
[4] Index on Censorship, ‘UK government abolishes seditious libel and criminal defamation’ (13 July 2009)
[5] More recent jurisprudence includes: Lopes Gomes da Silva v Portugal (2000); Oberschlick v Austria (no 2) (1997) and Schwabe v Austria (1992) which all cover the limits for legitimate criticism of politicians.
[6] Privacy is also protected by the Charter of Fundamental Rights through Article 7 (‘Respect for private and family life’) and Article 8 (‘Protection of personal data’).
7 Dec 2012 | Volume 41.04 Winter 2012
Between February 2011 and June 2012, I attended nine surveillance technology trade shows around the world. At these events, vendors, developers and government agencies meet, mingle and do business. They’re usually held at anonymous corporate hotels and are strictly invite-only. Yet the atmosphere is usually one of pervasive paranoia and attendees often conceal their real names and governmental affiliations. The sales representatives, by contrast, can be extremely frank, particularly when discussing the ethical implications of their trade. During one presentation, delegates from a password forensics company projected an image of a metal interrogation chair draped with chains and joked that their equipment could be used in conjunction with ‘other methods’. Another vendor told me that he was sure his company could come to ‘some arrangement’ with a (hypothetical) North Korean customer. Fat profit margins are top of the agenda; ethics and social responsibility rarely even come into it.
Twenty years ago, the value of the global surveillance industry was negligible – today it is estimated to be worth around $3bn. The fall of the Berlin Wall in 1989 left hundreds of Stasi officers out of a job and the rash of new surveillance companies that sprang up in the early 1990s in Germany suggests that many found lucrative new employment in the private sector. Privacy International published a report in 1995, highlighting this increased flow of surveillance tools from developed countries like the UK, the US, Germany and Israel to repressive regimes in Africa and South Asia, where they were then used as instruments of political control and internal repression. But not a single Western government has felt it necessary to impose export controls on surveillance technologies, and so this unethical trade has therefore continued unimpeded.
After 9/11, governments around the world ramped up their surveillance operations and private companies competed to develop and supply cheaper and more invasive tools. The business of surveillance was no longer the preserve of large military and arms manufacturers like BAE Systems; small technology enterprises and larger Silicon Valley companies quickly flooded the market. Privacy International’s recent research has identified around 250 vendors of surveillance technology based in 33 countries around the world and there are probably dozens more that have managed to remain under the radar. Unfortunately, these new actors seem to conduct themselves with even less integrity than their predecessors – exports to Africa and the Middle East are significant and companies now offer bespoke solutions and training to their clients.
One would think this would make it difficult to plead ignorance when companies get caught doing business with dictatorships and repressive regimes. Yet this is still the most common defence: companies claim that they had no knowledge of the uses to which their products were being put.
They deny complicity in resulting human rights abuses – censorship, torture, extrajudicial detention and executions – because they say that technology is neutral, that it’s not their responsibility to vet their clients, that they can’t control how equipment is used once sold. Let us be clear: in the majority of situations, this is simply not the case. These companies are not staffed by idealistic young software developers creating socially useful tools that their wicked clients are then misusing and perverting. In fact, most of the time they are working with their customers on a close and long-term basis, carefully tailoring surveillance systems to specific needs.
Milan-based Area SpA last year furnished Privacy International with a disturbing example of just how committed to customer service these companies can be. While President Bashar al Assad’s forces were engaged in brutal attempts to crush dissent in Syria, killing and injuring hundreds of unarmed protesters, Area secretly installed a nationwide mass surveillance system. Dozens of the company’s Italian employees were flown out to Syria to install hardware and software that would allow Syrian security agents to follow targets on flat-screen workstations displaying communications and web use in near-real time, alongside graphics that mapped citizens’ networks of electronic contacts. The €13m (US$16.7m) contract also specified that Area employees would supply training to Syrian security agents, teaching them how to monitor vast swathes of the population. Fortunately, after a Bloomberg report exposed the project and protesters gathered outside Area’s offices, the company quietly pulled the plug on the project.
The effect of a surveillance system of this sophistication and magnitude on political dissent, public debate, the rule of law – in fact, on all of the processes fundamental to participatory democracy – is devastating. When people see their friends and colleagues arrested and tortured because of a text message, a Facebook chat or a phone call, they think twice about complaining about government abuses. They may cut off all phone and email contact with those people, afraid that just being part of the wrong networks will bring the secret police to their own doors in the middle of the night. Arranging face-to-face meetings becomes practically difficult, and even speaking in person isn’t secure – governments can target individual mobile phones with malware that allows them to remotely control the device’s microphone and camera and thereby see and hear everything happening around it.
Organising political demonstrations is equally challenging. Blogs containing anti-government sentiments are identified and blocked almost as quickly as they can be written, preventing citizens from expressing their dissatisfactions to a wider audience. Surveillance technology is therefore one of the most powerful weapons in the dictator’s arsenal; it destroys political opposition and subdues populations far more effectively than guns or grenades.
Privacy International doesn’t think it’s right that companies based in Europe and the United States – where governments publicly condemn the kind of human rights abuses described above – should make vast sums of money by facilitating these same abuses. We also believe that this notoriously murky and elusive industry needs to be much more transparent about which products are being sold to which regimes, particularly in Africa and the Middle East. We embarked on the Surveillance Industry Index – a publicly-accessible online catalogue of surveillance companies, products and marketing materials – because we felt that putting the hard facts in the public domain would hopefully stop companies obfuscating their involvement with repressive governments and make them more accountable. We also hoped that it would add to the evidence base for proper export licensing systems in Europe and the US. In particular, the excerpts from the marketing material we’ve presented provide direct insight into the ethical vacuum at the heart of the industry and demonstrate the terrifying scope and power of some of the technologies that are now readily available.
For example, UK-headquartered Gamma Group describes one of their products as permitting ‘black hat hacking [illegal and malicious] tactics to enable intelligence services to gather information from target systems that would be otherwise extremely difficult to obtain legally’. South African VASTech sells a mass surveillance product that can intercept ‘more than 100,000 simultaneous voice channels, allowing it to capture up to one billion intercepts per day and storing in excess of 5,000 Terabytes of information’. Madrid-based Agnitio is even more explicit, stating that their product is ‘designed for mass voice interception and voice mining’. Mass surveillance has been ruled illegal in most democratic countries as, by its very nature, it can never be considered a proportionate or necessary tactic.
Over the past few years, Gamma International’s FinFisher suite, a range of spyware that covertly takes remote control of a computer or mobile device, copying files, intercepting Skype calls and logging every keystroke, has appeared all over the world. Recent reports by computer security company Rapid7 have placed FinFisher command and control servers in Australia, the Czech Republic, Dubai, Ethiopia, Estonia, Indonesia, Latvia, Mongolia, Qatar and the US. A separate investigation in August by CitizenLab, an interdisciplinary project based at the Munk Centre for International Studies at the University of Toronto, identified potential FinFisher command and control servers in Bahrain, Brunei, the Czech Republic, Ethiopia, Indonesia, Mongolia, Singapore, the Netherlands, Turkmenistan and the United Arab Emirates.
Gamma International’s Managing Director, Martin J Muench, has refuted this research – the latest in a long line of denials and excuses from the company. In April 2011, the Guardian reported that two Egyptian human rights activists had found a proposal from Gamma to supply President Mubarak’s regime with FinFisher products inside the ransacked headquarters of the State Security Investigations service. The company said the offer was for a free trial version and that ‘Gamma International UK Limited has not supplied any of its FinFisher suite of products or related training etc to the Egyptian government’. When it was reported that five Bahraini human rights activists had been sent emails containing FinFisher trojans, Gamma suggested that the malware in question was a ‘copy of an old FinSpy demo version’ that ‘may have been stolen’. Muench also tried to point the finger at organisations that had been investigating Gamma’s practices: ‘It’s been suggested that the information was stolen on behalf of a pressure group to disrupt our business but I have no evidence yet to support that claim.’
Yet Muench’s ultimate defence is that Gamma always complies with British, American and German export regulations, recently stating that ‘Export Control Authorities … act as our moral compass’. This would be all well and good – if such export regulations existed anywhere in the world. In fact, exports of surveillance technologies remain almost entirely unlicensed and thus uncontrolled. It should also be noted that, although Gamma has been using the above justification since April 2011, the company only bothered to submit a technical information about FinFisher to the Department for Business Innovation and Skills (BIS) in June 2012. BIS, which is responsible for licensing exports in the UK, has now decided that exports of FinFisher should in fact be licensed, on the basis that the product contains cryptography.
However, the British government has thus far refused to include other surveillance tools in the export-licensing regime, apparently buying into the industry’s claims that these products are all sold for legitimate purposes. Yet BIS controls exports of hundreds of ‘dual-use’ products (products that can be used illegally or dangerously as well as having a legitimate or civilian purpose) and the industry has thus far demonstrated a woeful inability to self-regulate. Unless surveillance exports are effectively controlled by law, the action the UK has taken on Gamma’s FinFisher will be just a sticking plaster on a bullet wound. Though the European Parliament passed a resolution calling for stricter oversight of surveillance technology exports and President Obama announced an executive order to prevent such exports to Syria and Iran, there has not been any clear, decisive action as of yet. And, for dissidents and ordinary citizens alike, the space for speaking out about human rights violations and ensuring this information gets out to the wider world is narrowing all the time.
©Eric King
41(4): 81/86
DOI: 10.1177/0306422012465540
This article appears in Digital Frontiers, the winter 2012 edition of Index on Censorship magazine.
