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An initiative of Eva Joly, Member of the Greens/EFA group in the European Parliament

by Jon Thorisson. October 2015


"If you give me six lines written by the hand of the most honest man, I will
find something in them to hang him." – Cardinal Richelieu, Prime Minster of France (1585 –

In her 2003 book STASILAND, Australian author Anna Funder writes about the
surveillance activities of the GDR government:
“After the Wall fell the German media called East Germany ‘the most perfected
surveillance state of all time’. At the end, the Stasi had 97,000 employees—more
than enough to oversee a country of seventeen million people. But it also had over
173,000 informers among the population. In Hitler’s Third Reich it is estimated
that there was one Gestapo agent for every 2000 citizens, and in Stalin’s USSR there
was one KGB agent for every 5830 people. In the GDR, there was one Stasi officer or
informant for every sixty-three people. If part-time informers are included, some
estimates have the ratio as high as one informer for every 6.5 citizens.”1
Further Fulder writes:
“The Stasi was the internal army by which the government kept control. Its job was
to know everything about everyone, using any means it chose. It knew who your
visitors were, it knew whom you telephoned, and it knew if your wife slept around.
It was a bureaucracy metastasised through East German society: overt or covert,
there was someone reporting to the Stasi on their fellows and friends in every
school, every factory, every apartment block, every pub. ...... In its forty years, ‘the
Firm’ generated the equivalent of all records in German history since the middleages. Laid out upright and end to end, the files the Stasi kept on their countrymen
and women would form a line 180 kilometres long.”2
Yet the STASI was taken by complete surprise when the Wall came down.
In comparison to today´s computerized world of industrialized and automated
data mining and eavesdropping, the “hands on” surveillance by the East German
authorities seem quaint, with it´s analogue spying and typed or hand written
reports it was not particularly effective.
The spying programs revealed by Edward Snowden illustrate how surveillance
has become fully automated and industrial in scale to a degree where ALL our
communications and movements can be monitored and stored forever, not just
by government agencies but businesses across the world.
One of the most chilling examples of how far the invasion of our privacy has
advanced, is the example of so-called “smart” televisions. The latest models of
1 Ann Funder. Stasiland, Stories form behind the Berlin Wall, page 82-83. Granata
Books (2011).

2 Ann Funder, p 13-14.


Samsung TV’s have a voice control option, so that one can switch channels by
talking to the TV. Very convenient surely, but the catch is that the TV not only
records and “sends home” your commands to switch channels, but everything
that is said in the room, or as the company´s privacy policy states:
"Please be aware that if your spoken words include personal or other sensitive
information, that information will be among the data captured and transmitted to
a third party through your use of Voice Recognition."3
So it is not only through the tracking of Internet use that citizens are being
monitored and their behavior mined for data. The march of “The Internet of
Things” into our lives is at full throttle. Not only the latest TV models monitor
user behavior. Internet linked energy meters, home security systems,
refrigerators, medical devices, cars and every electronic gadget imaginable can/is
made with the capacity to monitor user behavior and send information “home”.
The smartphone is both a listening and location device through the use of GPS
and many apps developed for smart phones are developed to track physical
exercise and parameters such as blood pressure, heart rate, sleeping patterns etc.
On the iPhone the virtual assistant Siri has a setting that, being on constant alert,
much like that Samsung TV, sends everything the microphone records, regardless
of whether the phone is in use or not, to Apple headquarters!
A website called “The Domestic Surveillance Directorate” parodying the official
NSA website, publishes, under the heading “IF YOU HAVE NOTHING TO HIDE,
YOU HAVE NOTHING TO FEAR”, a list of current and “planned” future data
collection targets:4

internet searches

websites visited

emails sent and received

social media activity (Facebook, Twitter, etc)

blogging activity including posts read, written, and commented on

videos watched and/or uploaded online

photos viewed and/or uploaded online

mobile phone GPS-location data

mobile phone apps downloaded

phone call records

text messages sent and received

4 (note that this is a parody)

Skype video calls

online purchases and auction transactions

credit card/ debit card transactions

financial information

legal documents

travel documents

health records

cable television shows watched and recorded

commuter toll records

electronic bus and subway passes / Smartpasses

facial recognition data from surveillance cameras

educational records

arrest records

driver license information

Although the website is a “spoof” or parody, aiming to expose and ridicule the
NSA, the list published is not an exaggeration of what data can and is being
collected on an industrial scale and neither is the slogan “if you have nothing to
hide you have nothing to fear”. This is the most common argument put forward
by people who defend data gathering and surveillance in the name of security
and “the war on terror”.
Another argument for giving up privacy is convenience. By using Facebook,
Twitter, Amazon, Google and other on-line services and credit cards (as well as
customer loyalty cards) personal information and behaviour is used to target
customers with advertising of products that users actually might want to buy,
based on status updates and Google searches. Google Maps is also good at
guessing where you want to go, just to name a few examples.
A widely reported example of how consumers are at the mercy of data mining is
that of the American discount retailer TARGET, who based on customer profiling,
sent coupons for baby clothes and diapers to a pregnant teenage girl before the
girls parents were aware of the girl´s state. Forbes reports this incident with the
“An angry man went into a Target outside of Minneapolis, demanding to talk to a
“My daughter got this in the mail!” he said. “She’s still in high school, and you’re
sending her coupons for baby clothes and cribs? Are you trying to encourage her to
get pregnant?”

The manager didn’t have any idea what the man was talking about. He looked at
the mailer. Sure enough, it was addressed to the man’s daughter and contained
advertisements for maternity clothing, nursery furniture and pictures of smiling
infants. The manager apologized and then called a few days later to apologize
(Nice customer service, Target.)
On the phone, though, the father was somewhat abashed. “I had a talk with my
daughter,” he said. “It turns out there’s been some activities in my house I haven’t
been completely aware of. She’s due in August. I owe you an apology.” 5
And this is achieved mostly through analysing shopping habits alone.
Keeping in mind how, despite its analogue and slow processing of information,
the state control of its citizens had a cooling effect on freedom of speech and
cultural and political life in the GDR it is surprising how the “Google generation”
seems to take privacy lightly, publishing personal details on social media and
welcome the convenience of computer programmes predicting their next move.
In a report from Davos in January 2015, journalist Richard Carter quotes a young
tech entrepreneur in a panel of experts on privacy, arguing; “anyway, people often
behave better when they have the sense that their actions are being watched”.
This is simplifying the issue to a dangerous degree. In the GDR it was not only the
chilling effect on freedom of speech and political, cultural and the private sphere
that made life for it´s citizens difficult. It was also the fact that the state had its
own measure, against which the conduct of citizens was held and they rewarded
- or punished, not getting that new job or promotion, travel privileges being
withheld, being put behind in line for a new apartment, car or other limited
goods, as described by Anna Fulder in her above quoted book on life in East
We now live in a world where, potentially, all of us are under surveillance, all of
the time. There is no way we can find out what sort of information is being
collected about us nor is it possible to verify the accuracy of that information, nor
control how it is used.
Surveillance by government institutions is one thing, the mass collection of data
by companies is another. News reports of how companies such as Google and
others collect and store user data and freely give up their files at the request of
public prosecutors and surveillance agencies abound (one example is Wikileaks
staff Google Mail accounts being handed over to US authorities in secret).
In our “analogue” lives it goes without saying that we expect privacy in the daily
routine of our homes. We lock our doors, draw the curtains and send sealed
letters to our loved ones – not because we are doing or saying anything “wrong”


but because we have been brought up with the idea that privacy is an inherent
human right.
According the writer Bruce Schneider privacy is a requirement for maintaining
the human condition with dignity and respect, quoting two proverbs that in his
opinion say it best: “Quis custodiet custodes ipsos? ("Who watches the watchers?")
and "Absolute power corrupts absolutely."
The Universal Declaration on Human Rights states that, “No one shall be
subjected to arbitrary interference with his privacy, home, family, or
Privacy is not about having nothing to hide, it is about our rights over our own
lives and the details of that being nobody else’s business.
The new reality of the world of mass surveillance that has been exposed over the
last few years requires a revisiting and redefining the meaning of privacy and
why it matters.
We need to learn new rules of navigation – we now know that, metaphorically
speaking, the world is not flat. Drawing the curtains, locking that door or
whispering secrets into someone’s ear is no longer is sufficient to guard our
Through technological innovation the scope of what can be known about a
person and how it can be used, has expanded beyond anyone’s imagination to
include the tracking of not only our movements but practically every other aspect
of our lives; what we do and think, our political opinions, our curiosities, worries
and desires, who we know and when and how we meet them, what we read, eat,
when we go to bed, get up and how we like the temperature in our living room.
So we all need to become aware of the reality of the world we live in, as if new
laws of nature have been discovered, meaning that previously implemented
safeguards to privacy are redundant.
This is of course not the first time in history that humanity has to revisit how
different aspects of life are dealt with and develop new approaches, values and
parameters for what is right. “The Right to Privacy” is the title of an article
published in the Harvard Law Review in 1890, and its argument for how our laws
need constant re-interpretation and revision seems incredibly fresh and
appropriate, even today.
Written by Samuel Warren and Louis Brandeis, the article has been called "one of
the most influential essays in the history of American law" and one of the first
examples in the United Stated of advocacy for the right to privacy.
Inspired at the time by the popularization of photography and newspaper gossip
columns and the perceived invasion of privacy this entailed, the article argues
how in many spheres of live “the advance of civilization” has “demanded legal


The following is a (somewhat lengthy) quote from the article and inspirational in
the context of today’s lax attitudes towards privacy and the often-heard paroles
that privacy is old fashioned and even “dead” and impossible to demand in this
technological age;
“Political, social, and economic changes entail the recognition of new rights, and
the common law, in its eternal youth, grows to meet the new demands of society.
Thus, in very early times, the law gave a remedy only for physical interference with
life and property, for trespasses vi et armis. Then the "right to life" served only to
protect the subject from battery in its various forms; liberty meant freedom from
actual restraint; and the right to property secured to the individual his lands and
his cattle. Later, there came a recognition of man's spiritual nature, of his feelings
and his intellect. Gradually the scope of these legal rights broadened; and now the
right to life has come to mean the right to enjoy life, -- the right to be let alone; the
right to liberty secures the exercise of extensive civil privileges; and the term
"property" has grown to comprise every form of possession -- intangible, as well as
Thus, with the recognition of the legal value of sensations, the protection against
actual bodily injury was extended to prohibit mere attempts to do such injury; that
is, the putting another in fear of such injury. From the action of battery grew that
of assault. Much later there came a qualified protection of the individual against
offensive noises and odors, against dust and smoke, and excessive vibration. The
law of nuisance was developed. So regard for human emotions soon extended the
scope of personal immunity beyond the body of the individual. His reputation, the
standing among his fellow men, was considered, and the law of slander and libel
arose. Man's family relations became a part of the legal conception of his life, and
the alienation of a wife's affections was held remediable. Occasionally the law
halted, as in its refusal to recognize the intrusion by seduction upon the honor of
the family. But even here the demands of society were met. A mean fiction, the
action per quod servitium amisit, was resorted to, and by allowing damages for
injury to the parents' feelings, an adequate remedy was ordinarily afforded.
Similar to the expansion of the right to life was the growth of the legal conception
of property. From corporeal property arose the incorporeal rights issuing out of it;
and then there opened the wide realm of intangible property, in the products and
processes of the mind, as works of literature and art, goodwill, trade secrets, and
This development of the law was inevitable. The intense intellectual and emotional
life, and the heightening of sensations which came with the advance of civilization,
made it clear to men that only a part of the pain, pleasure, and profit of life lay in
physical things. Thoughts, emotions, and sensations demanded legal recognition,
and the beautiful capacity for growth which characterizes the common law
enabled the judges to afford the requisite protection, without the interposition of
the legislature.
Recent inventions and business methods call attention to the next step which must
be taken for the protection of the person, and for securing to the individual what
Judge Cooley calls the right "to be let alone". Instantaneous photographs and
newspaper enterprise have invaded the sacred precincts of private and domestic

life; and numerous mechanical devices threaten to make good the prediction that
"what is whispered in the closet shall be proclaimed from the house-tops."
So this is written in 1890 when the threat to privacy came from “instantaneous
photographs and newspaper enterprise”, making the problem addressed seem
rather insignificant in view of todays technological cornucopia of surveillance
and data mining options. But it is a reminder that our laws need to be revisited
and revised to reflect the common perceptions of what is right and what serves
the public.
But despite the widespread criticism from computer experts and human and civil
rights organizations, governments around the world continue down the road of
unfettered surveillance and information gathering on their own citizens.
Government agencies continue collaborating on snooping on each other’s
citizens across national boarders - and of course the largest corporations
operate freely across the world, regardless of national states, in cyberspace,
where there are no boarders or national boundaries.
And the show goes on. On the 20th of October 2015 the US congress approved the
Cybersecurity Information Sharing Act, CISA, a cyber security bill that allows the
government uncontrolled collection of personal data. In a letter to the Senate
several Princeton University professors and other experts warned against the
passing of the law stating;
“this is a classic “let’s do something” law. While we laud Congress for taking notice
of the significant cybersecurity threats facing US corporations, we fear that CISA
will weaken privacy and encourage governmental surveillance, with little upside
for the public”. 6
The bill was co-sponsored by senators Richard Burr and Dianne Feinstein who
argued against amendments limiting its scope. The law will allow for the creation
of a new program within the Department of Homeland Security allowing
corporations to share user data in bulk with the US government and its various
agencies. In return, the participating businesses will receive complete immunity
from Freedom of Information Act requests and other regulations relating to the
information and data submitted.
Similarly the recently passed French legislation on international surveillance,
which, according to the human rights organization Privacy International, “fails to
protect and respect the right to privacy of individuals worldwide” 7 has been widely
criticized by civil and human rights organizations.
A letter addressed to the members of the Assemblé National, and signed by 30
civil and human rights organizations, state the concerns that:



“the bill would allow for indiscriminate mass surveillance of millions of
people in France and abroad;

independent oversight and control mechanisms are completely lacking.
The massive data collection scheme would be conducted under the sole
authority of the French Prime Minister, with only ex post control from the
oversight authority. This does not sufficiently guarantee the protection of
privacy and the respect for rights and freedoms;

clearly excessive and unjustified retention periods for data (content for
one year, metadata for six years, encrypted content for eight years) are
foreseen, in contradiction with the principles laid out by the Court of
Justice of the European Union (CJEU) in its ruling on 8 April 2014
invalidating the Data Retention Directive;

the justification of the measures is so broad as to be meaningless, such as
the defence of "major interests of foreign policy" and "major economic
and scientific interests of France".

the broad language leaves room for the future use of undefined
surveillance technologies which could lead to an extension of the scope of
the bill without any involvement of democratic institutions;

only lawyers, journalists, representatives and magistrates established in
France would theoretically be granted some form of protection, although,
for instance, the private or professional nature of their communications
can only be established during the data processing, and in any event the
law does not protect them against bulk collection and exploitation of their
communications”. 8

In conclusion the organizations urge the French Parliament to reject the bill.
In the UK it is expected that a new investigatory powers bill will be submitted to
Parliament in the next few weeks and will make permanent the powers of
security services implemented in the wake of the disclosures of Edward
Snowden. According to the Guardian;
“the legislation will include not only the expected snooper’s charter, enabling the
tracking of everyone’s web and social media use, but also moves to strengthen the
security services’ warranted powers for the bulk interception of the content of
Put forward by a government that has threatened to withdraw from the Human
Rights Act and insists on the right to veto judgments by the European Court of
Human Rights there does not seem to be much more hope for the privacy and
rights of the citizens of the UK than the US or France.9


How much hope there is in the October 6 th 2015 ruling 10 of the Grand Chamber
of the Court of Justice of the European Union that mass surveillance is in
violation of the right to privacy and that a legal system that provides no legal
protection against interference with someone's privacy is not in accordance with
EU human rights standards, remains to be seen. The case, brought by an Irish
citizen, regards the transfer of personal data submitted on Facebook and
transferred to the United States.
In it’s concluding remarks the Court states that:
“As regards a level of protection essentially equivalent to the fundamental rights
and freedoms guaranteed within the EU, the Court finds that, under EU law,
legislation is not limited to what is strictly necessary where it authorises, on a
generalised basis, storage of all the personal data of all the persons whose data is
transferred from the EU to the United States without any differentiation, limitation
or exception being made in the light of the objective pursued and without an
objective criterion being laid down for determining the limits of the access of the
public authorities to the data and of its subsequent use. The Court adds that
legislation permitting the public authorities to have access on a generalised basis
to the content of electronic communications must be regarded as compromising
the essence of the fundamental right to respect for private life.”
And further the ruling states that;
“Likewise, the Court observes that legislation not providing for any possibility for
an individual to pursue legal remedies in order to have access to personal data
relating to him, or to obtain the rectification or erasure of such data, compromises
the essence of the fundamental right to effective judicial protection, the
existence of such a possibility being inherent in the existence of the rule of
law. “
In it’s coverage of the ruling the human rights organization Privacy international
concludes that;
“ EU governments, including the UK and France, should not feel immune by the
effect of today's decision. The Court's statement that mass surveillance legislation
does not stand the strict test of legality, necessity and proportionality under human
rights law should serve as an important signal that their laws and practice need
reform too.”
So yet again we are at a crossroads where, in the words of Warren and Brandeis
“the advance of civilization” demands legal recognition – at least if we want to
regain what has long been regarded as a basic human right – the right to privacy.