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Thursday 18 September 2014

Time Government took a stand against covert surveillance of messaging systems

Published 26/06/2014 | 02:30

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Austrian citizen Max Schrems

Next month an anniversary will crop up that is likely to go unreported. In July 1999, a mini-diplomatic storm broke out between Ireland and the United Kingdom. 'Channel 4 News' and journalist Duncan Campbell broke a story that GCHQ, the British spy agency responsible for signals intelligence, had been secretly collecting Irish international telecommunications for 10 years and sifting through it for useful economic and security information.

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At the time, Irish phone calls, faxes and telexes had crossed the Irish Sea via a subsea cable, before popping up again and bouncing across the English countryside along a series of BT radio towers. Some enterprising individuals within GCHQ realised that a perfectly placed, 150ft high, windowless tower in Capenhurst, Cheshire, could suck in all the Irish communications as they passed by.

The operation was only eventually discontinued due to a change in the way data was transmitted, and allegedly replaced with a more modern network of fibre optic cable and satellite transmission intercepts.

Irish government and opposition responses at the time were of outrage. Gay Mitchell, then foreign affairs spokesperson for Fine Gael, said it was "not only an offensive act, it has commercial as well as political implications." While Albert Reynolds, Taoiseach between 1992 and 1994 when the spying was in full swing and the peace process was in its critical stages, called it an "outrageous incursion into the sovereignty of the Irish state."

Fast forward to the events of last week and it seems much the same has been playing out again, though the focus this time has been on the mass surveillance of British as well as Irish citizens.

In the High Court in London, the British government, through Charles Farr, director of the Office of Security and Counter-Terrorism, laid out the legal rationale upon which it justifies its online surveillance activities for the first time.

The argument presented by Farr was that they did not intercept any internal communications in the UK, but if two people in the UK communicate by private messaging on Facebook or Twitter, for example, because that communication leaves the British Isles for a server in the US before returning to the UK, that message constitutes an "external communication" and is therefore fair game for government to harvest, store for an undetermined period, and examine if they so wish.

Any correspondence with Irish people on the same networks would be accessible to the same monitoring and review.

The defence presented by the British government makes it clear that the type of mass online surveillance exposed by Edward Snowden has continued unabated. Perhaps the revelation that such monitoring is still going on unchecked played a role in the decision by the Irish High Court to refer a case brought by Austrian citizen Max Schrems (below), of Europe v Facebook, to the European Court of Justice last week.

Thankfully, that court is showing an increasing determination to stand up for protecting such privacy rights. An unfortunate counterpoint, however, is that our Government seems willing to accept the ongoing spying activity without raising any serious objections. Eamon Gilmore's assurances that he raised the issue with the American embassy in Dublin does not imply that the current Coalition has done anything substantive to protect the privacy of Irish internet users.

Taking a stronger stand would not be a deterrent to further foreign direct investment in our country. The large, multinational technology companies whose networks the British and American governments have been using to conduct their surveillance activities, are threatened more than anyone else by what is happening.

They know they will be critically compromised if their customers believe their dealings with those companies are not safe and have been working tirelessly to harden their networks. If we really are intent on becoming a global centre for technology then it makes sense for us to have the most robust environment for the protection of digital rights.

Rather than being an opponent or passive observer to the case being taken to the European Court of Justice, we might seek to become a supporter and present our own evidence, making it clear that the British government does not possess the legal authority to conduct this level of surveillance, regardless of the justifications based on their own domestic law.

We have the example of what happened 15 years ago to show what can be done. Following the revelations of the surveillance that was being organised from the tower in Capenhurst, the Irish Council of Civil Liberties and other interested parties took the UK government to the European Court of Human Rights, and won.

What is to stop the Irish Government taking a similar case to the same court today? It might create some short-term diplomatic difficulties, but it would put us on the right side of a historic struggle which we need to win if the development of the internet is to meet its full potential. Frances Fitzgerald has the chance to tackle this issue with a fresh approach. She should use it to good effect.

Eamon Ryan is a former Minister for Communications and leader of The Green Party

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