[By Alistair Fairweather]
It’s like a plot out of a spy novel or the lost Stieg Larsson book: a powerful government issues a secret subpoena to an Internet service for access to private information, so that it can pursue a case against foreign nationals for leaking embarrassing information. Sadly this is stranger than fiction.
On 8 January it emerged that the US government had ordered Twitter, via a type of secret subpoena known as a “national security letter”, to grant it access to all the private communications between five Twitter users: Julian Assange, Bradley Manning, Jacob Appelbaum, Birgitta Jónsdóttir and Rop Gonggrijp. The first two names are familiar to anyone following the WikiLeaks case, but what’s really extraordinary is that the last two aren’t even US citizens.
What’s even more scary is that Twitter’s lawyers had to go to court just to win the privilege to tell their users they were being ordered to give away their information. This has raised speculations that other Web companies, such as Google and Facebook, may also have been served with such national security letters and just couldn’t (or wouldn’t) go to court to break the federally imposed silence.
This may or may not be true, but the prospect is potentially terrifying. The US government has an effective carte blanche to poke around in anyone’s Facebook or Gmail account — all it needs is a court order and a reasonable hunch that you’re up to something it considers criminal.
And this isn’t rare. They issue more than 50 000 national security letters per year. Some US citizens have already challenged these violations of privacy in court, but what hope do foreign nationals, with no protection under the US constitution, have?
It doesn’t even help if you’re a prominent and powerful foreigner. Birgitta Jónsdóttir is a member of Iceland’s parliament, but the US government just lumped her in with all the other suspected criminals. It’s not clear what they plan to do if they find her culpable of any crimes. Extraditing a member of a foreign government on such flimsy charges should prove an interesting exercise in futility.
Regardless of your position on WikiLeaks, this revelation has to give you pause. The USA Patriot Act, which authorises the use of national security letters, has effectively decoupled their executive branch from the natural checks and balances built into their democracy. They can now strike arbitrarily and in secret against anyone they choose.
Yes, I understand the need for secrecy when it comes to terrorism and espionage. If you alert people involved in those activities to your intentions, you will certainly blow your whole case. But using such a blunt instrument against a Dutch programmer and an Icelandic Internet activist bears an uncomfortable resemblance to the machinations of a police state.
Let me be clear: the problem isn’t so much the powers themselves as the ability to wield them in secret against anyone with even the faintest whiff of a “national security” threat. And who defines national security? Why, the people in charge of national security of course.
And that, in a nutshell, is why separation of powers is supposed to exist in democracies. Without any checks on its powers, the executive branch of any government will behave like it’s been trained to behave: a merciless attack dog let off its leash.
The agents issuing these subpoenas and trying to get Julian Assange extradited to the US (where he may face the death penalty) probably feel completely justified in their actions. They are protecting their country from people who are exposing matters of national security to public scrutiny and possibly putting lives at risk. But are we really comfortable with the idea of federal agents deciding, unilaterally, whose privacy should be invaded? Quis custodiet ipsos custodes?
- Alistair Fairweather is digital platforms manager at the Mail & Guardian
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