Mass surveillance and online censorship—the PEN International perspective

Since Snowden’s revelations PEN has scrutinized mass surveillance laws in several countries the world over. Sarah Clarke, International Policy and Advocacy Officer at PEN International, writes about how the introduction of such laws have the effect of normalizing what earlier had been regarded as secret surveillance.

July 8 2015 Text: Sarah Clarke

Two years have now passed since Edward Snowden’s revelations of global mass surveillance conducted by the United States’ National Security Agency (NSA) in coordination with intelligence organisations in the United Kingdom, Canada, New Zealand and Australia (the “Five Eyes” alliance).

With the internet now the central global public forum for communication, online surveillance and censorship online constitute two of the greatest threats to freedom of expression. Even before the Snowden revelations, PEN had noted with alarm the rise in cases of writers persecuted for their work appearing online, and through internet surveillance and censorship. This led to the 2012 PEN Declaration on Digital Freedom which argued that surveillance “chills speech by establishing the potential for persecution and the fear of reprisals”. The concerns outlined in the Declaration have been dragged into the public consciousness through the devastating disclosures of the last two years. While many details of the mass surveillance apparatus run by the NSA in partnership with other members of the Five Eyes are still not known, it is clear that these programmes sweep up vast quantities of international communications, compromising the rights to privacy and free expression of hundreds of millions of people around the world.

The revelations have also exposed the particular dangers of electronic surveillance for human rights organisations like PEN, and the writers and journalists who we work to protect. In April 2014, Snowden disclosed information that human rights organisations have been specifically targeted by the British and US spy agencies’ mass surveillance programmes while in January 2015 he revealed that the UK’s GCHQ programme “harvested correspondence between journalists and editors at news organisations, going so far as to designate investigative journalists as “a potential threat to security”.

Since the Snowden revelations, PEN has worked from the position outlined in the Declaration on Digital Freedom to research the impact of mass surveillance on freedom of expression and writers, and to advocate for surveillance reform. Our case work, resolutions and research reports—cited below—have illustrated the encroaching danger that mass surveillance and censorship pose to freedom of expression and writers globally. PEN resolutions on mass surveillance in 2013 and 2014, passed by its Assembly of Delegates, called for the full review and reform of these mass surveillance programmes, and urged governments to affirm the international human right to privacy and its inextricable connection to the realisation of the right to freedom of expression. We have focused our advocacy with governments and before the United Nations on reforming mass surveillance and in advancing the norm that the same rights to freedom of expression and privacy that exist offline apply online too.

Expansion of online surveillance and censorship 
One of the greatest concerns for PEN since the Snowden revelations has been the introduction of mass surveillance legislation in many countries around the world. The widespread introduction of such legislation marks a departure from previously covert state mass surveillance and censorship practices. According to the NGO Freedom House, between May 2013 and May 2014, 41 countries – democratic and non-democratic alike – passed or proposed legislation to expand government surveillance capabilities, increase government powers to control content, and to penalise legitimate forms of speech online.

This trend continued through to the time of writing in mid-2015 in the wake of terror attacks in Australia, Canada and France, where those governments were swift to use the pretext of national security to move to seek intrusive new powers despite evidence that such programmes would not have prevented attacks. In Australia, spy agency ASIO will be given the power to monitor the entire internet, and journalists' ability to write about national security will be curtailed. In Canada, under draft legislation Bill C-51 government departments will gain the authority to share any piece of data with Canada's spy agencies if they think it could relate to a threat to national security, and these spy agencies will be given powers to “disrupt” threats, even if it means breaking the law, or ignoring citizens' constitutional rights. In France, in June 2015, the senate passed a law to dramatically expand surveillance powers—enabling security and intelligence services to collect data on internet users in real-time, without legal authorisation, and to order telecommunications and internet companies to hand over user information.

PEN has often found that anti-terror laws legitimise existing repression, effectively criminalise online dissent and disproportionately impact writers, journalists, bloggers and human rights activists. In Ethiopia, for example, the 2009 Anti-Terrorism Proclamation has been used to detain without trial the Zone 9 bloggers for more than a year for their online critical reporting of the government. The Ethiopian bloggers also stand accused of using digital encryption to communicate, which the prosecution claims is proof of their alleged conspiracy to commit terrorism. Ethiopian telecommunications legislation introduced in 2012 effectively bans the use of encryption tools by individual users.

States are increasingly seeking to seriously limit the capacity of individuals to communicate securely and anonymously. Many of these laws aim to undermine encryption – the mathematical process of converting messages, information or data into a form unreadable by anyone except the intended recipient – which protects confidentiality and integrity of content against third-party access or manipulation. Indeed, encryption was the first target of UK Prime Minister Cameron who, in the immediate aftermath of the Charlie Hebdo attack in France, vowed to ban “a means of communication between people which we cannot read.”

In his latest annual report, the UN Special Rapporteur on Freedom of Expression David Kaye wrote, “Journalists and civil society rely on encryption and anonymity to shield themselves (and their sources) from surveillance while artists rely on encryption to safeguard their right to free expression, especially in situations where it is not only the State creating limitations but also society that does not tolerate unconventional opinions.” Speaking to PEN and our partners in May 2015, Kaye noted, “because of their importance, restrictions on encryption and anonymity must be avoided and only limited—if at all—according to the strict application of principles of legality, necessity, proportionality, and legitimacy.”

Restrictions targeting online criticism and dissent have proliferated. Vietnamese law in this respect is particularly draconian. Decree 72 extended prohibitions against “political or social commentary from blogs to all social-networking sites”. In November 2013, the state went even further and issued Decree 174, which introduces fines for spreading anti-state propaganda on social media.

Online censorship—in the form of blocking and filtering content—has also risen notably in the past 24 months in countries such as Turkey, Russia and Thailand, where the authorities have opted to shut down or block sites critical of the Government. Turkey—ironically, the host for the 2014 United Nations Internet Governance Forum—has repeatedly blocked Twitter and YouTube when content perceived as critical or compromising of the government has been posted. President Recep Tayyip Erdoğan has gone so far as to call social media the “worst menace to society” and has vowed to “wipe out Twitter.”

The detention of writers, online journalists, bloggers and activists for writing undesirable content online has risen each year and 2014 saw more people detained or prosecuted for their digital activities than ever before, with China, Iran, Eritrea, Vietnam and Ethiopia comprising the top five jailers of online journalists in the world.

Measures to criminalise defamation and blasphemy online have also emerged as serious threats to free expression, with penalties for committing offences often much heftier than those for committing such expression offline. In the Middle East and North Africa in particular, PEN has noted the increase in cases of bloggers persecuted under these laws. In June 2015, despite global outcry, the Saudi Supreme Court upheld a sentence of 10 years in prison and 1,000 lashes for the atheist blogger, Raif Badawi, on charges of “insulting Islam” and “founding a liberal website”.

Attacks by non-state actors on writers for their online work or expression is of increasing concern for PEN and is generated increased self-censorship amongst writers. According to PEN’s 2014 case list, writers in Brazil, Mexico, Paraguay, Venezuela, Afghanistan, Iraq, Cambodia, India Pakistan, Philippines and Russia were killed apparently in connection to their online writings. In Bangladesh at least six writers and bloggers have been attacked or murdered in Bangladesh since 2013, three of them brutally murdered in 2015 for their online writings on atheism, a shocking demonstration of the risks writers face in intolerant societies. 

PEN fears that the accumulation of mass surveillance legislation, censorship, attacks on and imprisonment of writers for their opinions is serving to deter others from publishing critical material and is ultimately fostering an atmosphere of self-censorship. Indeed the combination of mass surveillance by democratic and non-democratic countries alike means that writers are now self-censoring in record numbers throughout the world. As PEN American Center’s research reports “Chilling Effects” and “Global Chilling” demonstrate, levels of self-censorship reported by writers living in liberal democratic countries (34%) are substantial, even when compared to the levels reported by writers living in authoritarian or semi-democratic countries (61% and 44%, respectively). Mass surveillance has severely shaken writers’ faith that democratic governments will respect their rights to privacy and freedom of expression, and—because of pervasive surveillance—writers are concerned that expressing certain views even privately or researching certain topics may lead to negative consequences.

The battle over mass surveillance
The Snowden exposure of Five Eyes’ surveillance initially resulted in something of a crisis of leadership at the UN and regional institutions, as some of the traditional defenders of free speech—the USA, UK, Canada, Australia and New Zealand—were revealed to be contravening their own values of freedom of expression and the right to privacy. The revelations significantly damaged the credibility of the USA and other Five Eyes states as global champions of free speech.

In the aftermath of the Snowden revelations, media actors—particularly The Guardian, and free expression and internet rights groups, including PEN centres around the world, played critical roles in exposing and explaining the implications of mass surveillance and in advocating for effective legislative oversight of currently unchecked surveillance at the international and national levels.

In the UN, a new leadership emerged as Brazil and Germany took the helm in championing the right to privacy. Since 2013, institutions across Europe have ruled mass surveillance laws and operations illegal and imposed new restrictions on future activities. The United Nations High Commissioner for Human Rights declared mass surveillance an unambiguous violation of human rights. In Latin America, the efforts of citizens in Brazil led to the Marco Civil, an Internet Bill of Rights. Recognising the critical role of informed citizens in correcting the excesses of government, the Council of Europe called for new laws to protect whistle-blowers.

In May 2015, the NSA’s invasive call-tracking programme was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this programme had not stopped a single terrorist attack, even the President who once defended its propriety and criticised its disclosure has now ordered it terminated. In the same month, the Paraguayan Senate voted against a controversial surveillance bill following intense pressure from a large free speech coalition.

We are therefore at a fascinating point of tension between mass surveillance expansion and reform. Later this year, we can expect serious debate over proposed surveillance in the UK and South Africa, where extreme internet censorship and surveillance laws have been tabled. It will require organisations like PEN and our partners to maintain pressure on governments to reform their surveillance systems in order to ensure that all surveillance is carried out in line with the principles of necessity and proportionality.

Emerging threats
A final note on some prominent emerging threats. Noting the lack of cybersecurity for writers and activists who are increasingly targeted with technical attacks and spying by repressive governments, PEN International has responded to the digital security threats by undertaking a full security review of our systems, and has begun to roll out digital security training to its own staff and those centres at greatest risk such as Myanmar and Honduras. Over the coming years it is essential that all PEN centres, our members and our partners in civil society can understand and mitigate these risks.

PEN is also increasingly concerned by the impact on already often marginalised groups of these laws and practices. Women and members of the LGBTQI (lesbian, gay, bisexual, transgender and intersex) community are both underrepresented online and disproportionately harassed for their internet activities. In May 2015 PEN launched Outwrite, a site committed to providing a platform for LGBTQI and other writers to address issues of equality and security. We hope that by sharing experiences, writers will learn about the need to protect themselves online and will be enabled to access high quality digital security training. Despite overall declines in global internet freedom, pushback by civil society and an informed public has been amplified over the past 24 months by reactions to the NSA surveillance revelations. Awareness of the threats to fundamental rights has expanded beyond civil society, as an informed public around the world became more engaged in securing their privacy and freedom of expression online.

While there is still far to go in achieving full mass surveillance reform—including in the USA—the victories of the 24 months since the Snowden revelations serve as an impressive testimony of what can be achieved through coordinated research, advocacy and protest by diverse actors across the media, civil society, technology and political sectors. As more and more states move to legislate on the issue, there is no room for complacency. Rather what is required is a redoubled commitment from these actors to reform unchecked surveillance in order to protect freedom of expression, privacy and writers globally.