Through the Prism revelation

The world is now discovering that this freedom to connect comes at a very high price,namely,massive surveillance,which instils fear,instead of freedom from fear. In a speech on internet freedom at the Hague in December 2011,Clinton also said that states push plans for surveillance in the name of security. Although it was directed at states like China,Russia,Saudi Arabia and other countries in the Middle East,it now turns out that the US itself is engaged in surveillance on an unprecedented scale,in the name of homeland security. The National Security Agency of the US,The Washington Post and The Guardian recently revealed,is watching just about everyone in the world under its cyber snooping programme — codenamed Prism. The NSA is using the American advantage of being the creator of the internet,by virtue of which it houses not only the biggest bandwidth,which connects it to Europe,Latin America,the Asia-Pacific and Africa,but also the largest internet services providers. The former ensures that most global internet traffic passes through it,because the packets take the cheapest path to reach their destination after moving through a mesh of routers. The latter also ensures the same,since the services such as search,email,chat,video and audio sharing,social media platforms like Facebook and Twitter,YouTube and several other channels have all emerged from the US. All these services are free — the business model largely based on advertising revenues. Hence,users from all over the world willingly land on their servers,located in the US. All of these companies are incorporated in the US. They are subject to US laws.

The cyber snooping is enabled by a number of laws. The Foreign Intelligence Surveillance Act (FISA) is used to spy on foreigners,ostensibly with the permission of FISA courts — all the 1856 requests by law enforcement agencies were supposedly granted. Even the need for showing “probable cause” under this act has been done away with by provisions in the Patriot Act. Section 214 makes it easy to obtain a wiretap order from the FISA court “if information likely to be obtained is foreign intelligence not concerning a US person,or relevant to ongoing intelligence”. Further,the criminal and intelligence distinction has been removed to enable electronic surveillance of a wide range of targets in foreign countries,with or without links in the US. This brings even Americans under surveillance,though it clearly violates their privacy. The Washington Post,in investigations published in July 2010,had revealed “the secret America”,in which the security establishment was visible all over the country. Prism is the latest instance to come to light.

Cyber security is linked to national security as countries are increasingly dependent on cyberspace. But cyberspace is increasingly being used by countries to gather intelligence on others. Prism collected 6.3 billion objects from Indian networks in the month of March 2013 alone. Is India an ally or an adversary? We rank fifth among their targets — those ahead of us are mostly non-democratic states,such as Iran and Jordan. Figures about China and Russia are not revealed. The US has long accused China of cyber espionage,whereas the Chinese have claimed to be victims of cyber attacks. The Prism revelation,coming on the day Obama wanted to discuss theft of American IPRs by the Chinese with President Xi Jinping,took the steam out of any argument he might have wanted to make.

India is establishing its own central monitoring system (CMS) to get feeds from all communications providers for internal and external security. It is likely to include not just metadata,but information too,since Section 69B of the IT Act does allow the monitoring of traffic data and information. Adequate safeguards with additional judicial oversight may be necessary in our environment. There has been much noise from organisations promoting freedom of expression that CMS violates the right to privacy guaranteed under Article 21. Where do they stand now,when the beacon for democracy and fundamental rights is exposed as watching the world,without any qualms about the privacy of citizens? The US has lost the credibility to preach freedom of expression on the internet,and privacy protection. Freedom to connect? One may have to think again.

One final thought. America has diluted the trust of people and nations in cyberspace. Trust in the nine companies that are said to have cooperated with the US government — notwithstanding their denials — by giving access to users’ electronic data stands eroded. All these companies have steadfastly refused to cooperate with law enforcement agencies of other countries,even when there are serious national security concerns,because US laws protect free speech,and since their servers are located in the US,they are beyond the legal jurisdiction of other countries. In the US,these companies are providing direct feeds to the NSA,in violation of the right to free expression and privacy. How will nations now trust the US with critical global internet resources operated by ICANN,an American company?

The writer is CEO,Data Security Council of India. He was founder Director,CERT-In.

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