This is a guest post by Professor Melissa de Zwart from The Univesity of Adelaide Law School, who will be teaching the upcoming course Cyberwar, Surveillance and Security, starting May 21st.
In 2013, the world was confronted with the revelations by former NSA-contractor, Edward Snowden, that the US government and its Five Eyes partners were collecting massive amounts of metadata from ordinary citizens, often with the co-operation of major US tech and communications companies such as Microsoft, Google, Verizon and Apple. In the face of these disclosures the US Government had to admit to large scale, and largely indiscriminate, collection of metadata from both US and non-US citizens with respect to telephone communications and online interactions. Public interest groups had long suspected that such programs were in operation, but actions brought in the US Supreme Court, as well as direct questioning of the relevant government agencies, had met with denials and obfuscation.
A number of court actions in the US have struggled with the question of the legality of these metadata protection programs in the face of the Snowden disclosures and on 7 May 2015 the US Court of Appeals for the Second Circuit handed down its decision in American Civil Liberties Union v Clapper. The Court held that the bulk collection of telephone metadata was not authorized under §215 of the PATRIOT Act of 2001. The Court held that it was unnecessary to consider the further issues of whether such bulk collection of metadata violated the terms of the First and Fourth Amendments to the US Constitution and declined to grant an injunction to halt the collection of metadata. However, it did so in the context of the fact the §215 telephone metadata collection program must be reauthorized by Congress, with the current authorization to expire on June 1, 2015.
Despite this, other countries have continued with the introduction and operation of bulk metadata collection programs. For example, the Australian Parliament recently passed legislation which provides for bulk metadata collection, a scheme which is very similar to that struck down in ACLU v Clapper.
Edward Snowden and others have argued that despite the enthusiastic adoption of such programs by governments worldwide, there is no evidence that they make us safer. In permitting the use of such schemes, we run the risk of sacrificing our privacy in an aspect of ‘security theatre’ believing that there is a trade off between individual privacy and national security.
The Court in ACLU v Clapper observed with respect to the mass and indiscriminate collection of metadata that: ‘Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.’
The upcoming MOOC Cyberwar, Surveillance and Security (Cyber101x) will address and analyse these issues, looking at the nature of privacy in a global networked environment and addressing the nature of national security risks and needs in the online world. It looks at these issues from a domestic and international perspective and draws upon a vast range of expert observations and a multidisciplinary approach. The message that will emerge from the course is that as a society we need to be better informed and better equipped to engage in the global cybersecurity debate.
Enroll today to learn more!
08 Jan 2019