On Wednesday November 27th 2013 at SPUI25 in Amsterdam, a symposium took place entitled “NSA: vadertje staat, beschermt u wel?” (English: “NSA: the friendly govt that protects you?”). These were the speakers:

• Simon Davies (privacy advocate, founder of Privacy International, guest at the University of Amsterdam until April 2014);
• Marieke de Goede (Professor of Politics at the University of Amsterdam);
• Christiaan Alberdingk Thijm (lawyer, founding partner of bureau Brandeis);
• Nico van Eijk (Professor of Media and Telecommunications Law at the University of Amsterdam).

I could not attend the symposium myself, but fortunately Jeroen van der Ham was kind enough to keep notes, and to let me publish those. One of the more remarkable paragraphs:

Simon [Davies] calls for aggressive action, civil disobedience, to destroy the infrastructure that makes this possible. We have moved beyond institutional solutions, and harder measures are required.

Here are Jeroen’s full notes:

The evening takes place in a packed SPUI25 in Amsterdam, with many young interested law students, and other curious attendees. After a brief introduction by prof. Nico van Eijk, Simon Davies takes the stages and enlightens us on how we got here.In 1976 it all started in a hotelroom in the famous hotel of Watergate. The Church commission investigated the approach of the NSA and concluded that the NSA was engaged in unlawful activities, and oversight was lacking. There was little public outcry when it became clear that the NSA would stop spying on American citizens.

In 1982 the novel The Puzzle Palace was published detailing many of the goings on inside the NSA. Again there was almost no outcry. In 1988 The New Statesman published a column describing the existence of the ECHELON program. December 1997, Simon Davies (finally) published the column “Spies like US”, which warns about the extent of the ECHELON program in Europe. This finally lead to a EU report in 2001, published just before the summer break, which was consequently largely ignored. Summarizing, there has been almost no political or journalistic covering of these affairs, until now. Snowden embodies two important pillars on which a strong journalistic covering of the NSA affair can be built:

1. Snowden is an interesting `dramatis persona`, his past and future are very much unclear, and his present is the stuff of spy novels.
2. The media very much owns this story. Snowden has worked with journalists who know own the files, and there is nothing that prevents this story from coming out further, or to be questioned.

This is very much in contrast with the revelations published by the Observer based on interviews with Wayne Madsen. A crafted barrage of critique on the person and the source made the Observer pull the story, just a day after it published it on its front page.

Simon concludes that the world has changed. In 1976 the intelligence agencies were like angels/demons who would sweep in on the world to grab bits and pieces of intelligence. In 2001 this changed into large silos of data that the agencies sifted through, yet there was no exchange of data on a large scale.

Now in 2013 the world is enveloped in a large matrix of surveillance, with frequent exchange of information between almost all intelligence agencies.

Simon calls for aggressive action, civil disobedience, to destroy the infrastructure that makes this possible. We have moved beyond institutional solutions, and harder measures are required.

Marieke de Goede draws a parallel with the Terrorism Financing Tracking Program (TFTP) which was revealed in 2006 when it became clear that SWIFT was secretly sharing all finance information with the US intelligence agencies.

In the US the public outcry over this died down quickly when it became clear that most US citizens were not affected, only if they transferred money to foreigners.

Marieke argues that there are three important points in these kind of stories:

1. Shoot the messenger: the source is attacked as much as possible, be it the newspaper, the leaker, etc. This was obvious in the Snowden affaire. 
2. Focus on Analystics: Where is the data collected from and what is it used for. In PRISM and SYNAPSE it became clear that the NSA is “pulling an intelligence string” where they take one piece of intelligence and try to use their haystack to discover relations to others.
3. What can the concept of ‘Privacy’ do? After the TFTP affair the EU fought for a new agreement with the US regarding the financial transaction data.

It has now become clear that in practice the oversight has become effectively worthless. Finally Marieke points to an overview article by Bigo et al [0].

Just before the panel discussion Christiaan Alberdingk Thijm provides a summary of the lawsuit against the Dutch government. They wanted to litigate the NSA, but it is more realistic to target the AIVD/MIVD. They are targeting the exchange program the AIVD and MIVD have with the NSA where they receive illegally obtained intelligence. Their defense is that it is not common for agencies to ask where data comes from, meaning that agencies may obtain & use intelligence that was not collected in accordance with the rule of law [1].

In the suit they are asking that this exchange of illegally obtained information is stopped, any data gathered in this way is deleted, and to allow citizens inquiry into whether they were wiretapped. If the AIVD and MIVD are unsure about where data comes from, that they do not use it.

The panel discussion starts with an addition by Simon Davies saying that the whole matrix is the result of political risk aversion. The matrix may not be the best metaphor, Simon would welcome better suggestions.

He suggests that we look to technology to evade detection, and perhaps even go on the offensive to create uncertainty in surveillance. I remark that the technology activists are saying that technology (encryption) only postpones the problem, it does not eliminate it. We need a more widespread attack on this problem.

Oversight is probably not a solution. The FISA court has already shown to be virtually worthless, and the hard-fought arrangements regarding SWIFT are also practically useless since the NSA can either not provide an answer, or someone is a “nexus of terrorism”, in which case they will not answer either.

Even worse, the existence of these kind of arrangements can be seen as legitimization of the data collection!

It is pointed out that we are dealing with an international problem, with differing national laws. Christiaan also points to similar cases where the European Court decided that national security is not an end-all argument, e.g. the Klass case [2].

The question raises whether ‘terrorism’ is just an excuse, to which Simon answers that it is, but were it not for terrorism, then some other excuse would be found.

It was an interesting and lively debate, with unfortunately a slightly depressing outcome.

[0] http://www.ceps.eu/book/mass-surveillance-personal-data-eu-member-states-and-its-compatibility-eu-law
[1] https://www.aivd.nl/algemene-onderdelen/serviceblok/veelgestelde-vragen/#WaaromgebruiktdeAIVDinformatievanbuitenlandsedienstendiemisschiennietopeennettemanierisverkregen
[2] http://hub.coe.int/c/document_library/get_file?uuid=ec21d8f2-46a9-4c6e-8184-dffd9d3e3e6b&groupId=10227

EOF