What is mass surveillance?
Mass surveillance is the subjection of a population or significant component of a group to indiscriminate monitoring. It involves a systematic interference with people’s right to privacy. Any system that generates and collects data on individuals without attempting to limit the dataset to well-defined targeted individuals is a form of mass surveillance.
Under the methods that mass surveillance is now capable of being conducted, governments can capture virtually all aspects of our lives. Today it increasingly involves the generation, collection, and processing of information about large numbers of people, often without any regard to whether they are legally suspected of wrongdoing. At this scale, modern surveillance shifts the burden of proof, leads to an unaccountable increase in power, and has a chilling effect on individual action.
Is mass surveillance only a recent phenomenon?
While the mass surveillance of populations is currently on the rise, mainly due to rapid technological changes around the world, it has been used all throughout history.
One of the oldest forms of mass surveillance are national databases. These old administrative surveillance techniques include censuses registering the subjects of a kingdom, ID documenting individuals and tattoos marking them, and numbering and categorising humans.
The searchable nature of databases makes any datastore a potential investigative tool and increases the potential of trawling. This is why national databases are supposed to be regulated carefully under law in democratic societies. Census databases collect detailed information on individuals in a country but should not be used to identify specific individuals or populations. Identity schemes should be limited to very specific uses and not allow for discrimination or for abusive use of stop-and-identify powers. The increasing use of biometrics and the ability to query identity databases for matches and near-matches allows for fishing expeditions that increase the risk of abuse and re-use of the system for other purposes than for which it was designed.
Mass surveillance in public spaces became more commonplace with the deployment of closed-circuit television cameras (CCTV). Older systems collected vague images with limited capabilities of linking captured images to personal information. But now it is possible for people’s movements to be tracked and stored for later analysis. Automated and real-time identification of large numbers of people is now undertaken, and the risk of further abuses is growing.
What are the latest forms of mass surveillance?
While databases and CCTV still exist and are in use, the most recent discussions around mass surveillance focus around the monitoring of communications, including what we do on our phones and our computers.
When it comes to spying on our phones, government authorities can now get access to data on everyone within a specific geographic area around a cell tower through bulk access to data held by mobile phone companies (often referred to as a ‘cell tower dump’). We are also seeing an increase in the use of mobile surveillance tools that allow authorities to monitor all communications and identify all devices within a localised area, for instance at a public protest by setting up fake mobile base stations.
Having started as mechanisms to administer and control large populations, then moving to capture ‘public’ actions, mass surveillance techniques are no longer restricted to public-facing activities. For instance, governments have passed laws mandating that all communications transactions are logged and retained by service providers to ensure that they are accessible to government authorities upon request. However, numerous courts have called this type of surveillance policy an interference with the right to privacy.
The technologies of mass surveillance are becoming more prevalent, and as resource limitations disappear, the capabilities for governments become endless. Now it is possible to monitor and retain an entire country’s communications content, and directly access communications and metadata from undersea cable companies,telephone companies and internet service providers.
There are practically no limits on what governments can do with this broad access and the power that comes with unaccountable surveillance. For instance, in conducting fibre optic cable interception States can collect and read any the content of any unencrypted communication flowing through that cable – including phone calls, voice-over-IP calls, messages, emails, photos, and social networking activity. They can then apply a range of analysis techniques and filters to that information – from voice, text and facial recognition, to the mapping of networks and relationships, to behavioural analysis, to emotion detection.
Mass surveillance will be applied beyond communications surveillance. As we move towards ‘smart’ devices and cities, more and more of our activities will be collected and analysed. Smart meters report on our electricity usage, while smart cities track individuals and vehicles using cameras and sensors. Laws must keep up to date with these innovations that seek to monitor and profile us all. As the UN Office of the High Commissioner for Human Rights noted in 2014, “the technological platforms upon which global political, economic and social life are increasingly reliant are not only vulnerable to mass surveillance, they may actually facilitate it.”
What are the legal frameworks around mass surveillance?
Mass surveillance is an indiscriminate measure. Human rights laws require that any interference with privacy is legitimate, necessary in a democratic society, and proportionate. Even where it can be shown to meet a legitimate aim, mass surveillance is unlikely to meet the tests of proportionality and necessity.
Key to this is that governments are often reluctant to introduce necessary safeguards to minimise the information that is collected — ID programmes are increasingly collecting more information and being required for more transactions; DNA database laws resist the deletion of unnecessary information including the samples and profiles of innocent people; and communications surveillance programmes are increasingly trying to ‘collect it all’.
In judging whether mass surveillance is lawful, courts have weighed on the scope of the surveillance, the safeguards in place, the type of surveillance, and the severity of the pressing social need. They have concluded that the collection and retention of information on people is an act of surveillance that must be controlled. The mere capability to enable surveillance that examines, uses, and stores information consitutes an interference with the right to privacy. The systematic collection, processing and retention of a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life, and to an emerging extent, requires protection against unreasonable searches.
What’s the problem with “collecting everything”?
Governments have been quick to attempt to colour the discourse around mass surveillance by rebranding their actions as “bulk collection” of communications, asserting that such collection in itself is a benign measure that does not offend privacy rights.
But what governments often do not point out is that collection of this information is where the interference to our privacy occurs. Mass surveillance programmes are premised on one fundamental objective – collect everything. Mine it, exploit it, extrapolate from it; look for correlations and patterns, suspicious thoughts or words, tenuous relationships or connections.
By starting from a position where everyone is a suspect, mass surveillance encourages the establishment of erroneous correlations and unfair suppositions. It enables individuals to be linked together on the basis of information that may be no more than a coincidence – a tube ride shared together, a website visited at the same time, a phone connecting to the same cell tower – and conclusions to be drawn about the nature of those links.
Authorities can now have access to information concerning the entirety of an individual’s life: everything they do, say, think, send, buy, imbibe, record, and obtain, everywhere they go and with whom, from when they wake up in the morning until when they go to sleep. Even the strongest of legal frameworks to govern mass surveillance with the strictest of independent oversight would leave room for abuse of power and misuse of information; for discriminatory attitudes and structural biases; and for human fallibility and malice.
The threat of being subject to such abuse, discrimination or error strikes results in changes in human behaviour, and consequently changes the way we act, speak, and communicate. This is the “chilling effect” of surveillance: the spectre of surveillance may limit, inhibit or dissuade someone’s legitimate exercise of his or her rights.
These impacts include not only the violation of privacy rights, but extend to broader societal impacts on the ability to freely form and express ideas and opinions, to associate and organize, and to disagree with dominant political ideologies and demand change to the status quo.
As the UN Special Rapporteur on Freedom of Expression concluded in his 2013 report, States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. We believe that ultimately mass surveillance will enforce conformity, limit innovation, hamper creation, and diminish imagination.