Another strategy adopted by privacy advocates has been to lobby various UN bodies to adopt positions on various aspects of surveillance. On this level, the advocates have met with considerable success. In the wake of the Snowden revelations, the Special Rapporteur on the rights to freedom of assembly and expression emphasised the importance of privacy for freedom of expression and, within this, the essential role of encryption and anonymity for the privacy of communications.50 The UN General Assembly also adopted a resolution entitled ‘the Right to Privacy in the Digital Age’. While the resolution stopped short of condemning surveillance practices, it expressed concern about the impact that surveillance, especially mass surveillance, may have on the enjoyment of human rights. It also reaffirmed the right to privacy, and the right of people to enjoy the same rights online as they do offline, and recognised the open nature of the internet. It called on states to respect privacy and to review their surveillance procedures, and requested the High Commissioner to submit a report to the UN Human Rights Council and, ultimately, the General Assembly on privacy and surveillance. The report’s authors expressed concern about countries engaging in surveillance, but not providing adequate legislative safeguards, as weak safeguards and poor accountability increased the potential for abuse. They noted that while the report was an important first step, they acknowledged that much more work needed to be done to develop mechanisms to ensure that surveillance practices complied with international human rights law.51 The Human Rights Council also appointed its first Special Rapporteur on the right to privacy, Joseph Cannataci, who began the process of elaborating on these mechanisms in a preliminary report to the council, which referred rather optimistically to the Schrems and the Zakharov cases (mentioned above) as ‘the beginning of the judicial end for mass surveillance’.52 He argued that the UK Investigatory Powers Bill failed the judicial tests set by these two cases and expressed concern that the government would be setting a bad precedent for the rest of the world.53 These efforts at the UN level are clearly bearing fruit in that a set of legal principles is in the process of being developed, and is bound to have great utility in the years to come as different countries review their legal protections (or lack of them) for privacy in the face of widespread surveillance.
At the international level, civil society has also focused on placing pressure on governments to impose export controls on surveillance equipment that qualifies as dual-use technology. The 2013 revision to the Wassenaar Arrangement (on export controls for arms and dual-use goods and technologies) to include IP-based surveillance equipment has greatly increased its utility for privacy advocates. The fact that 86 per cent of surveillance companies are located in countries that subscribe to the Wassenaar Arrangement makes this agreement even more important to the fight to control the spread of surveillance technologies.54 Moreover, the 2013 additions to the Wassenaar Arrangement have been added to EU dual-use regulations, creating a further layer of compliance for European-based companies. At the same time, the surveillance industry has continued to grow by an estimated 20 per cent a year.55 A specific coalition has been established to focus on campaigning against sales of mass surveillance technologies that do not have sufficient legal controls to prevent human rights abuses. Called the Coalition Against Unlawful Surveillance Exports, it seeks to encourage governments to regulate exports of mass surveillance technologies, and private sector companies to exercise responsibility in deciding to whom they sell such equipment, to prevent them from empowering authoritarian governments. However, the question does arise why the mass surveillance industry is booming if it is subject to unprecedented export controls. One of the problems is that the agreement does not have the status of a legally binding treaty, which means that countries can choose whether to, and how to, codify the Wassenaar Arrangement into domestic law. The EU has already implemented the Wassenaar Arrangement, and the US is in the process of doing so. An increasingly important surveillance player, Israel, has not subscribed to the Wassenaar Arrangement, although it has implemented its key features in exports, while not subscribing fully to all of them.
Companies like HackingTeam have argued that their surveillance software does not qualify as a weapon, and is therefore not regulated by the arrangement.56 In fact, the application of the Wassenaar Arrangement has been controversial as it could also cover IP-based monitoring systems that have a more general application and that could be used to improve network security. In such situations, the arrangement may well work against one of the very objectives it is attempting to realise, namely greater online security, which is an important precondition for privacy. However, these arguments have been debunked on the basis that the definitions of the types of products that are covered are narrow enough to prevent products that have more benign or even positive uses from being caught in the net.57 Some efforts on the export control front are bearing fruit, but it remains to be seen how the US responds, and whether this arrangement can be elevated to treaty level and how many countries domesticate the arrangement into law.
THE ROLE OF MULTILATERAL PLATFORMS ON SURVEILLANCE AND INTERNET GOVERNANCE
The Wassenaar Arrangement is not the only multilateral platform that has been used to respond to surveillance in the wake of the Snowden revelations. Other forums took place, focusing on the broader principles that should guide the development of the internet in the wake of these revelations, including NETmundial and the Stockholm Internet Forum (which preceded the Snowden revelations). The United Nations Educational, Scientific and Cultural Organisation (UNESCO) also launched a research project to identify internet first principles, revolving around the concept of ‘internet universality’. The Internet Governance Forum, established in the wake of the 2006 World Summit on the Information Society, continues to meet and debate the future of internet governance.
Traditional communications surveillance was confined to plain old telephones and, more recently, mobile phones (or cellphones). As its use became more widespread, state spy agencies began to recognise the internet as a surveillance tool that would allow them access to unprecedented amounts of information. Initially invented as a communications tool for the US military, the internet became popularised as the first truly global medium of communication in the 1990s. At the time, its founders insisted on some important first principles to ensure that the internet was maintained as a global public resource. These included ensuring that its architects used freely available standards that everyone could build on, and ensuring that the various components of the internet were interoperable. All data was supposed to be treated equally, irrespective of its contents, so that the internet could remain a level playing field for all its users (the ‘net neutrality’ principle). To all intents and purposes, the internet was meant to be a self-managed network of users, designed for communication and collaboration, and its publicness was meant to be central to its nature as a communications medium.58
However, since those heady days, governments and corporations have enclosed the internet in various ways, in the process compromising these foundational principles: governments by controlling internet content through filtering and censorship, and at the same time conducting surveillance of internet users on a worldwide scale – thereby threatening other countries’ sovereignty – while corporations have commodified internet traffic by selling users’ data to advertisers. Several powerful governments, notably the US, continue to champion internet freedom, subscribing to a free market ideology that does not problematise sufficiently the question of who controls the internet. In fact, Snowden exposed the hypocrisy of the US and other Five Eyes countries in supporting internet freedom rhetorically, while in practice promoting mass surveillance that went far beyond what was needed to fight international terrorism. The Snowden documents also revealed the extent to which internet companies were willing to collaborate in surveillance programmes uncritically.
One of the thorniest issues about internet