Final Copy Cyber Crime Research Essay
- 1. 1 Callum Craigie Student no: 42779006 Cyber Crime Assessment 3 Research Essay: • Mass surveillance and invasion of privacy Edward Snowden has been called a hero, a whistle-blower, a dissident, a traitor and a patriot. Was he justified in his actions? Is it ever justifiable for a country to conduct this level of mass surveillance on its citizens? In the following analysis the mass surveillance of Edward Snowden leak will be examined. A brief description of Snowden’s involvement, justifications and actions that led up to the mass surveillance leak will be discussed. It will be argued firstly the leak justifiable issue, as it was a breach of social freedoms. However mass surveillance is justified in the means of precautionary measures in the ‘altered power dynamic’ of cyber warfare. Snowden’s reasoning will be argued to be unjustified and a moot point to the secrecy and legality of mass surveillance. Furthermore the justification’s for the potential hazard of a Orwellian and totalitarian state on the outcome of mass surveillance will be discussed. The Snowden leak involved mass surveillance, the close observation of the population or a considerable fraction. The modern state performs mass surveillance upon its’ citizens for security against potential threats. Mass surveillance is controversial as it is considered a violation of individual’s privacy,
- 2. 2 political and social freedoms (ULegal.com). Edward Snowden allegedly brought mass surveillance into the international spotlight after leaking in Hong Kong on May 2013 documents to a journalist Glenn Greenwald. Snowden was a systems analyst within Booz Allen contracted by the NSA, to collect and store personal communications of the United States and other countries. Snowden was working under the PRISM surveillance program under the administration of the NSA (Greenwald, 2014). Under the PRISM program raw data information was collected via metadata traffic observation. The PRISM program was created in 2007 and place under the supervision of under FISA the (U.S. Foreign Intelligence Surveillance Court) (Director of National Intelligence, 2015). The documents revealed the NSA and its’ foreign intelligence partners were conducting warrantless surveillance upon their own citizens. Snowden and media outlets revealed millions of people’s data information is being stored and analysed without the authorisation of legislative bodies of the United States and other countries (Mezzofiore, 2013). The Snowden leak was the alleged revealing of unjustifiably illegal mass surveillance program, breaching United States and foreign citizens privacy, political and social freedoms. What warranted the NSA’s mass surveillance over American citizens was in the means of precautionary measures in the ‘altered power dynamic’ of cyber warfare. The ‘altered power dynamic’ refers to the potential of non-state actors to possess offensive capabilities no different to those of states (Jurick, 2009, p. 287). Non-state cyber attacks have been continuously exacerbated by a lack of international cooperation in dealing with cyber attacks through domestic law enforcement (Graham, 2010, p. 93). Furthermore states that have the greatest
- 3. 3 representation of non-state cyber aggressors such China and Russia have not signed the Council of Europe Convention on Cybercrime. This has enabled states such as China and Russia to actively encourage and to turn a blind eye to ‘people’s information warfare’, to the disadvantage to participant states to the Council of Europe Convention on Cybercrime. The United States through the NSA in conducting mass surveillance on its’ citizens, is complying with international cyber law enforcement. Furthermore reducing the American domestic/foreign chances of involvement or exposure to ‘people’s information warfare’. Mass surveillance is necessary as targeted surveillance is ineffective. Several cyber incidents have caused debate as to state responsibility for cyber attacks emanating from within their own territories and potentially by their own citizens (Sklerov, 2009). Computer network attacks are commonly conducted in covert strategies to eliminate any indiscernible traces (Arquilla, 1999, p. 193). Hence cyber attacks are conducted over multiple systems dispersed geographically and across unlimited Internet zones (Hunker, 2008). Of particular relevance was an incident in May 2007, when a distributed denial of service attack happened upon Estonia. Government ministries, banks, news organisations and emergency services were shut down. Co-incidentally this was following political tensions between Russia and Estonia (Traynor, 2007). After an extensive digital forensic and intelligence investigations two key issues were identified. The emergence of state state-sponsored espionage of separate hackers and the implied consent of states or territories, but with the absence of proof or responsibility (Swanson, 2010, p. 303-333). The absence evidence involving states or territories can be explained by the origins of the attack. The
- 4. 4 2007 Estonian cyber incident revealed enemy states can conduct untraceable and undetectable attacks upon a state, within the victim states boarders or other unsuspecting state’s borders. To use targeted surveillance in pursuing responsible parties would therefore be ineffective. The NSA in conducting a level of mass surveillance is acting within precautionary means. A cyber attack or cyber war unlike conventional warfare does not involve the mass movement of tanks and solders across boarders. A cyber attack can emerge in a foreign territory, with no link to the state sponsoring it. For example civilians may conduct cyber attacks from an office block in the Netherlands against the United States on behalf of the People’s Republic of China (Report of the UN Secretary General, 2011). It is an issue of ‘imputed territorial responsibility’, were the threshold of state involvement in a cyber attack is of much greater utility than the ‘effective control’ and as a requisite burden of proof in the self-defence of the alleged perpetrator state (Kanuck, 2010, p. 1592). Furthermore in establishing any form of self-defence in the deterrence of alleged non-state actors no clear guidance of appropriate international response is given. For example the right of a state to conduct self-defence in the event of an ‘armed attack’ is defined in Article 51 of the UN Charter. However Article 51 further explains to execute self-defence, clear guidance as to when the armed attack occurred and to what state was responsible. In setting the cyber espionage threshold so low, it is an enormous burden upon all states to prevent or prove a cyber attack is been or has been conducted within their own territories or others. Hostile states exploit private individuals as a ‘convenient covers’ for cyber attacks, with the advantage of ambiguity. In using non-state proxy servers
- 5. 5 that can be anywhere in the world, acting as prevalent in of conventional warfare (Lubell, 2010, p. 98). Therefore the NSA within precautionary means is reducing the chances of American citizens or private individuals been exploited as ‘convenient covers’ to hostile states means of ambiguous cyber warfare measures. The NSA in collecting information by mass surveillance was using the most efficient pursuit and deterrence measures of cyber attacks. Snowden hypocritically admitted the efficiency of mass surveillance. In 2013 in a Hong Kong interview Snowden is recorded stating; “the NSA specifically targets the information of everyone, it’s the easiest, most efficient and most valuable way to achieve these ends” (Freedom of Press Foundation, 2013). According to Hunter commanders in seeking to pursue the cyber attack perpetrators, conduct post event tracing by way of an ‘IP trace back’. The IP address of the attacking system is narrowed down to a location through the assistance of Internet Service Providers (Hunker, 2008, p. 6). However counterproductively trace back techniques are reliant upon the storing of data logs by routers, requiring commercial and international cooperation in providing access to those routers (Graham, 2010, p. 97). Due to the high volume of data travelling through routers the logs are only kept temporarily, to save storage space (Chaikin, 2006, p. 246). Furthermore Internet Service Providers may not cooperate with authorities in providing IP addresses for of privacy concerns and domestic legal liabilities (Young, 2010, p. 190). Therefore targeted surveillance would be a difficult pursuit process; many investigations of cyber attacks would lead to boundaries of uncooperative parties. The NSA in collecting this information by mass
- 6. 6 surveillance instead of targeted surveillance is avoiding non-cooperative parties by collecting data before potential issues arise. To argue Americans or the international community needed to know about mass surveillance being a secret is a moot point. Mass surveillance has been exercised to knowledge of the public and has being legally constitutionally valid for decades. The Patriot Act is amongst the most publicly recognised and legal government acts permitting mass surveillance. The Act was of the United States Congress, signed into law by President Bush in 2001 and continuously extended. The Patriot Act gave FISA further authority to monitor United States citizens by “bugging of all will” (Brzezinski, 2004, p. 68). FISA was notably already following for its’ original primary purpose of the monitoring of foreign citizens, under the Foreign Intelligence Act of 1978 (Harper, 2014, p. 1134). Furthermore Executive Orders of Presidents have issued the NSA permission to access Americans’ data by ‘clandestine means’. “Executive Order 12333, originally issued 4 December 1981, delineates the NSA/CSS roles and responsibilities. In part, the Director, NSA/Chief, CSS is charged to: Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions. Furthermore the executive order was amended in 2008 to be further used in the protection of American civil liberties (NSA, 2015). For counterintelligence purposes mass surveillance can be conducted within the reasoning of precautionary and efficiently reasons of pursuit, as stated previously.
- 7. 7 The Executive Orders and congressional acts were on the public record and furthermore were issued by an Executive with the democratically elected authority to do so. The Patriot Act nor the Executive Orders have not being successfully challenged constitutionally in the Supreme Court. Over thirty years after the executive orders were implemented the 4th estate claims the orders to be unconstitutional, however no ruling of the illegality of the orders exists (Network World, 2014). Furthermore although in apparent breach of the UN declaration of human right rights article twelve, neither the U.N nor the international community has objected to mass surveillance (U. N Universal Declaration of Human Rights, 2015). Quoted to be ‘the globalisation of American law’, the EU Parliament in 2005 after making mass surveillance illegal following the Madrid and London bombings, legalised mass upon EU citizens. There are only allegations and with no Supreme Court rulings to make the Executive orders or the NSA’s mass surveillance pursuits unconstitutional, with limited international rejection (Eggert, 1983, p. 611-644). Thus Americans and the international community needing to know about mass surveillance being a secret is a moot point. Mass surveillance and to the degree it is used and collected can be argued to be a valid point. An Orwellian society refers to George Orwell’s novel 1984 of a societal condition where the state has eliminated free society. The Orwellian state controls society through surveillance, propaganda, misinformation, and manipulation of the past and the denial of truths (Drabble, 2000, p. 726). The authorisation and monitoring of the mass surveillance state has raised the issue of the proportionality to the extent of the production of misinformation,
- 8. 8 manipulation, elimination of free society and the creation of a totalitarian state (Spector, 2015, p. 1). Rusbridger editor of the Guardian newspaper highlights the extent to which mass surveillance can have disproportionate outcomes between privacy, security and freedom. The potentially Orwellian issues were highlighted, consent as to what new technologies have been and can be deployed to collect and analyse their digital lives is question remains unanswered. The mass surveillance laws were passed in an analogue era, before citizen’s lives became more digitalised. The private sector, the digital economy and the integrity of the web remain an issue, as to what extent individual’s private information and financial data is exchanged. Furthermore the issue of the creation of deliberate false information by unmonitored classified intelligence courts (Rusbridger, 2014). FISA acting as a secret court previously has ruled some mass surveillance actions by the NSA to be in breach of federal law and the constitution. However to what mass surveillance action the NSA breached is unknown, furthermore to what the NSA is been permitted to do by FISA is unknown (Butler, 2013, p. 67). The use of mass surveillance under FISA an unmonitored court, can potentially lead to Orwellian and totalitarian state governance. Therefore one can argue Snowden is a Whistle-blower as he has highlighted potentially FISA and the NSA can act unconstitutionally and illegally, without public knowledge. In conclusion mass surveillance in in no doubt an invasion of privacy, however it is a necessary evil. Snowden’s actions are justifiable as it was brought to public attention the extent of mass surveillance. But Snowden’s argument was flawed as
- 9. 9 it was not secret the United States government had the authority to do so and within legal means. Furthermore the United State Government was complying within international cyber law enforcement, reducing the chances of involvement or exposure of American’s to the ‘altered power dynamic’. Mass surveillance is a much more efficient precautionary and pursuit method to avoid American citizen’s been exploited for ambiguous cyber warfare means. NSA was following its’ Executive, congressional and constitutional valid orders. Snowden’s and any other allegations questioning illegality of mass surveillance have yet to be successfully proven. The most apparent issue is the proportionality of mass surveillance. Although legally and constitutionally valid, there is the potential of a totalitarian or Orwellian state to emerge. The possibility of misinformation, manipulation and elimination of free society is a possibility. Permitted closed courts such as FISA could potentially abuse their authority as the extent of their mass surveillance remains disclosed. Mass surveillance is potentially hazardous and justifiable, but is a necessary evil.
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