Switzerland Government Surveillance Essay

For many in the United States, Costa Rica is a land of exotic beauty and natural rainforests. The small Central American nation has long promoted its eco-tourism industry and foreigners flock here in search of native wildlife such as sloths and jaguar. Unlike other countries in the region, Costa Rica has seen little civil strife over the years and has no standing army. Such political stability has attracted U.S. senior citizens, who see Costa Rica as the "Switzerland of Central America" and an attractive retirement destination.

Given Costa Rica's pacifistic history, recent news of U.S. espionage comes as something of a surprise. According to Brazilian newspaper O Globo, Washington has long conducted electronic surveillance on the tiny Central American country through the super secret National Security Agency or NSA. News of the spying program has led to something of a political firestorm in Costa Rica, and recently President Laura Chinchilla called for an "international debate" about the espionage. "To me, as a citizen of a disarmed democracy like Costa Rica, these things bother me, I don't like it," Chinchilla said.

Since we don't have the precise NSA memos on Costa Rica, it's difficult to know why Washington has been so busily gathering information on the small Central American nation. Perhaps, however, the NSA sees Costa Rica as an increasingly more important link in the Latin American drug trade. As I reported earlier, the NSA has incestuous links to whistle-blower Edward Snowden's former intelligence company Booz Allen. Together with the Drug Enforcement Administration or D.E.A., the two collaborate with the Mexican military to help prosecute the drug war at the regional level.

The Drug War Comes to Costa Rica

Whatever its scenic attractions, Costa Rica has been touched by the ever widening war on drugs which has engulfed Central America and Mexico. As I reported as early as three years ago, smugglers use Costa Rica as a transshipment point for drugs coming from Colombia and Panama. Without any armed forces and with long coastlines and poorly guarded borders, the country is vulnerable to the machinations of technologically advanced drug cartels. In San José, the government is woefully unprepared to fight the drug war, and has requested and received financial assistance from the U.S. through the so-called "Mérida Initiative."

Even with such aid, however, a flood of cocaine threatens to erode Costa Rica's peaceful image. In recent years, some of Mexico's most feared drug cartels have set up shop here, including the Familia Michoacana, Sinaloa Cartel and Gulf Cartel. Moreover, Costa Rica's role in international trafficking has spurred the growth of local drug markets, criminal enterprises and other crimes including homicide and burglary. Overwhelmed, the Chinchilla government has turned to the Obama administration, which has funded coast guard operations, donated interceptor boats and provided police training and special gear such as night goggles. In addition, the U.S. funds Costa Rican police training with other Latin American special operations forces at an annual exercise conducted by the U.S. Southern Command.

Despite such collaboration, the NSA may suspect that Chinchilla is wavering in her support of Washington's draconian clampdown on drug trafficking, and might have even believed that keeping tabs on Costa Rica's leader was politically expedient. Recently, many Latin American governments have expressed frustration with the Obama Administration's military strategy, and Costa Rica is no exception. Indeed, Chinchilla has said that drug legalization in Central America deserves a "serious" debate even if this goes up against stern U.S. opposition. "If we keep doing what we have been when the results today are worse than 10 years ago, we'll never get anywhere and could wind up like Mexico or Colombia," she has said. Chinchilla adds that even though the Obama administration wants to continue the drug war, Central Americans "have the right to discuss it" because "we are paying a very high price."

Combating Chávez's Successor

In addition to fighting the drug war in Latin America, the NSA has a wider political agenda in the region. As I explained in a recent article, the U.S. spying agency has conducted high level espionage on Venezuela, including the cataloguing of telephone calls and access to the internet. According to reports, the NSA collected information on everything from Venezuelan military purchases to the South American nation's oil industry. Angered by the disclosures, Venezuelan President Nicolás Maduro says the United States has "created an evil system, half Orwellian, that intends to control the communications of the world."

If the NSA is conducting espionage on the Maduro government in Caracas, the spying agency is most certainly monitoring Venezuelan activity throughout the wider region. In light of earlier and suggestive WikiLeaks documents, it seems rather unlikely that Costa Rica would be ignorant of such espionage and indeed may have even collaborated with Washington. As far back as 2004, former Costa Rican president Abel Pacheco met with U.S. diplomats to express concern about Hugo Chávez's intelligence gathering activities in Central America. According to the Americans, the Costa Rican government was "surveilling the activities of the Venezuelan cultural attaché in San José."

The attaché was believed to be an intelligence officer who was "meeting secretly with labor union officials, and has brought 200,000 USD into Costa Rica to pay labor activists to stage 'provocations,' perhaps during the upcoming Ibero-American summit in Costa Rica." Alarmed by alleged Venezuelan spying, Pacheco asked the Americans if the U.S. could provide needed intelligence on the matter. It's unclear whether Costa Rica and the U.S. deepened their intelligence ties as a result of perceived Chávez meddling, though American diplomats promised to refer Pacheco's request to higher authorities.

What's Behind the Story?

In light of such history, it seems unlikely that Chinchilla was unaware of U.S. spying. Perhaps, Costa Rica did not know of specific NSA surveillance programs, but the San José government has already proposed looser wiretapping laws in response to the escalating drug war. Moreover, Washington has spent more than half a million dollars to help build a so-called police crime-mapping computer network in Costa Rica, and a U.S. Treasury expert on money-laundering is "embedded" with local law enforcement.

Perhaps, like her Panamanian counterpart Ricardo Martinelli, Chinchilla is aware of U.S. spying but lacks high level access to all intelligence. As I reported in late 2010, Panama President Martinelli found himself under siege following revelations that he had sought U.S. assistance in setting up wiretaps on his rivals. According to WikiLeaks documents, Martinelli requested U.S. help "in building infrastructure to conduct wiretaps against ostensible security threats as well as political opponents." Appealing to the Americans, Martinelli said that Panama urgently required cutting edge technology when it came to fighting corruption and crime.

Specifically, Martinelli sought assistance from the D.E.A., which had set up a counter-narcotics wiretap operation in Panama known as Operation Matador. Under the program, the Americans collaborated with the Panamanian police and security forces but only under strict legal guidelines requiring a court order. In conversations with U.S. authorities, the Panamanians expressed frustration that Matador did not allow for "enough flexibility to select targets."

Apparently, Martinelli pressured the Americans to surrender their technology and employed "a variety of tactics ranging from straightforward requests to intimidating threats." Sounding the alarm bell, U.S diplomats suggested that if Martinelli succeeded in setting up his own independent wire program under the D.E.A., "he could blame it all on the gringos if it were exposed, which in this tiny country it inevitably would be."

While it's unclear whether the Americans finally gave in to Martinelli, WikiLeaks cables illuminate high stakes tensions between Washington and small Central American nations. Perhaps, as Costa Rica becomes more embroiled in the drug war, politicians will also seek access to sensitive U.S. intelligence or even try to blackmail the Americans like Martinelli in neighboring Panama.

Cautious Costa Rica

For the time being, however, the San José government has been extremely non-confrontational. Though Chinchilla has said that she would like to encourage a "debate" about NSA, she has not indicated what might be a suitable forum for such a wider discussion. In an odd aside, the President added "I think the healthiest thing happening is that it [the NSA scandal] has opened a broad discussion on what should be the balance between the protection of the security of a nation and its citizens, as opposed to respecting the rights of other nations." Chinchilla has said that Costa Rica is ready to encourage a "civilized dialogue" about electronic espionage "without demagoguery."

Meanwhile, Costa Rican ministers have had little to say about what the San José government might do in response to the allegations. Carlos Ricardo Benavides, the Presidency Minister, even declared that it would be "impossible" to undertake any concrete measures since recent reporting had not documented specific NSA activities in Costa Rica. "We take it very seriously but our response needs to be proportionate," Benavides added.

Perhaps, Costa Rica hasn't raised an international furor over NSA spying because the authorities already have access to the intelligence, or if not officials might wish to secure further access in future. Whatever the case, Costa Rica would find it difficult to hold the U.S. to account for its espionage as San José has deeper links to Washington than other Central American nations. Currently, the Chinchilla government receives hundreds of millions of dollars in annual tourism revenue from the U.S. as well as substantial amounts of real-estate investment, especially in retirement and vacation homes. In addition, Costa Rica's lack of an army makes the nation dependent on U.S. security largesse.

In light of all these factors, the Chinchilla government would probably prefer that the NSA scandal simply vanished from the headlines as soon as possible.

Nikolas Kozloff is the author of Revolution! South America and the Rise of the New Left. Follow him on Twitter here.

Follow Nikolas Kozloff on Twitter: www.twitter.com/NikolasKozloff

There is on-going interest and surprise at the extent of mass surveillance which various governments, the US in the form of the NSA, the UK in the form of GCHQ and others, have been carrying out.

The confirmations by both the US and UK governments that everything has been carried out in accordance with their national law has only resulted in profound questions regarding the nature of the laws which permit these activities and whether they actually conform to internationally recognised standards of certainty and accountability which any government act must have in order to qualify as a law.

The Snowden revelations regarding mass surveillance have not only had very substantial political repercussions over 2013 and into 2014, but have also raised profound legal questions as a result. So many of these are issues and questions of great importance for democracies. A former member of the European Parliament commented at a conference in Brussels on April 3, 2014 that every candidate in the May 2014 European Parliament elections is conscious of the chilling effect that mass surveillance has had on them personally.

The fact that every email they have sent, every photo they have forwarded by email, is available to the intelligence service of a foreign country has a chilling effect on freedom of expression. Who can be sure that something which they casually put into a personal email could not be used to contradict one of their election promises, or some photo that they sent could not be used to compromise their probity as representatives? We cannot afford to underestimate the impact of mass surveillance on the correct operation of democracy.

Two interconnected but separate human rights issues arise as regards mass surveillance. The first, which is the most fundamental but the most frequently ignored, is the right of every person to respect for his or her private and family life. The second, which is generally the subject of more substantial political and media noise is the duty of states to protect personal data. Those political actors who have an interest in promoting the legality of mass surveillance usually put forward two arguments. The first is that national and international security is always an exception to both the duty of every state to respect people’s privacy and the duty to protect personal data. This is the most trenchantly defended of arguments as when this one falls away, those actors seeking to justify mass surveillance find themselves on very weak legal ground indeed. The second is that states’ obligations to protect personal data are subject to very different rules and requirements according to the political preferences of different states. Thus as there is no harmonization of the specific rules as to what is acceptable data protection internationally, states which are exercising their national and international security prerogatives only need to fulfil their own national data protection rules.

Before engaging directly with the arguments and examining how political actors dissatisfied with them have responded, let us very briefly clarify the relationship of the right to respect for privacy with that of data protection. The right to respect for a person’s privacy is an overarching international human right. It is found in Article 12 of the UN’s Universal Declaration of Human Rights (1948) and its legal form is found in the UN’s International Covenant on Civil and Political Rights (1966). Any interference with the privacy of a person must first and foremost be subject to the consent of that person. The right to consent or refuse use of personal data belongs to the individual not the state.

Where the state seeks to interfere with that right and to collect and use personal data which constitutes an intrusion into the privacy of the person concerned, such an interference must be justified by the state authorities. First it must be permitted by law and that law must be sufficient clear and public that everyone can know what it is and how to adjust their behaviour accordingly. Any exception permitted by law to a human right must be interpreted narrowly. It must have a legitimate objective and be necessary to achieve that objective only. There must be no alternative, which would be less intrusive into the life of the person which could instead be used. There must be judicial oversight of any state interference and a person affected by an interference must have access to justice to challenge that interference.

Mass surveillance by its very nature is not targeted at any person specifically, thus the possibility to justify the interference with the privacy of any person individually is an exceedingly difficult task. Where such mass, weakly targeted surveillance techniques have been used in Europe, the Human Rights Court has found them inconsistent with the right to respect for privacy. Mass surveillance is by definition arbitrary.

States’ duty to protect data arises from the person’s right to respect for his or her privacy. Where states interfere with people’s privacy, they must fulfil strict rules to justify that interference. This gives rise to the obligation of data protection. The duty to protect personal data arises when personal data is being used by state or private actors and is designed to ensure that the use is consistent with the individual’s right to respect for his or her privacy. It is for this reason that there are many different types of regime of data protection depending on the country one examines. How states go about protecting data is for them to determine: the key is that personal data must be protected because the individual has a right to respect for his or her privacy. The content of the human right to respect for privacy of the person is not variable.

The political struggle

Moving then from the state of human rights to the political struggle regarding mass surveillance, clearly the US authorities are faced with a dilemma in international human rights law, an area of which they have always been rather wary. The 1950s approach to international human rights law was to claim that the instruments do no more than set out 'principles' and are not ‘real’ law in any significant way and are certainly not available for people to rely upon. This political position has been undermined by the development of very precise international obligations, the establishment of Treaty Bodies with jurisdiction to receive and adjudicate on complaints by individuals regarding alleged breaches of their international human rights and the embrace of international human rights law by national courts. The 'principles' approach to international human rights law is no longer tenable. It is a figleaf deployed occasionally by states seeking to act arbitrarily.

As the Snowden revelations rose up the scale of international issues, a number of states, primarily led by the Brazilian and German authorities began to address the issue of how to deal with US mass surveillance and the interception of communciations. There was much discussion about bilateral negotiations and unilateral action (for instance, building new cables which avoid US territory) etc. However, it rapidly became evident that bilateral and unilateral approaches were not going to be satisfactory. In Europe, the fact that the UK authorities were carrying out mass surveillance for their US counterparts and others (the so-called Five Eyes) yet were not only members of the Council of Europe but also of the European Union, was only one example of the problem of unilateral or bilateral approaches. Clearly, only multilateral efforts were likely to bring results, where the weight of the USA and some of its collaborators could be counterbalanced by a loose alliance of other states. As soon as the issue is defined in this way, the obvious venue to commence a response is at the UN General Assembly and the territory on which to prepare the response is international human rights obligations – the prohibition of arbitrary interference with people's privacy.

This is the road which the Brazilian and German authorities have followed. By August 2013, moves were afoot for a resolution of the General Assembly. Five non-governmental organizations were closely linked with the efforts, Access, Amnesty International, Electronic Frontier Foundation, Human Rights Watch and Privacy International also applied pressure for a strongly worded resolution. The Brazilian and German authorities were by no means alone in their efforts to achieve agreement over a UN General Assembly Resolution. Many smaller states, most notably Austria, Hungary, Liechtenstein, Norway and Switzerland but also others, very strongly supported the work from the beginning, even seconding staff to assist with the workload. The matter was assigned to the General Assembly’s Third Committee and it is there that the tense negotiations on the wording of the Resolution took place. A text was adopted on 26 November in the Third Committee and on 18 December 2013 it was adopted without a vote in the General Assembly of the UN.

The Resolution is based on the right to respect for privacy in the Universal Declaration and the ICCPR with specific reference to the prohibition on arbitrary interference. It ties the right to privacy to the right to freedom of expression – if people are subject to mass surveillance they are no longer able to express themselves freely. The preamble to the Resolution insists on the negative impact that surveillance and the interception of communications, including extraterritorial surveillance and interception, on a mass scale, has on the exercise and enjoyment of human rights. The Resolution calls upon states to respect the right to privacy and prevent violations; to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, including mass surveillance, interception and collection with a view to upholding the right to privacy and ensuring the full and effective implementation of all their obligations under international human rights law and to establish or maintain independent, effective domestic oversight mechanisms capable of ensuring the transparency and accountability of a state’s actions.

United Nations High Commissioner for Human Right, Navanethem Pillay. Demotix/Mohammed Othman. All rights reserved.

Most importantly, the Resolution directs the UN High Commissioner for Human Rights to present a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale and to report to the Human Rights Council in its twenty-seventh Session, in September 2014. The current High Commissioner, Navi Pillay, a South African jurist with a very impressive human rights career, was appointed to the post in 2008. She is no stranger to the problem of the right to privacy and mass surveillance, having already spoken on the subject at the Council in September.

The UN Human Rights Council (composed of 47 states elected by the General Assembly) has also already engaged with the issue. The matter was on the agenda of the twenty-fourth Session of the Council held in September 2013. The High Commissioner noted, at that meeting, that the threat which mass surveillance poses to human rights is among the most pressing global human rights situations today. Many state representatives present at that session had regard to the report of UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue on freedom of expression in the internet age (16 May 2011) which had already outlined many dangers of state surveillance and its impact on free speech.

What is perhaps surprising is that the September 2013 meeting of the Human Rights Council received so little press coverage. The meeting was well attended by state representatives and the discussions were incendiary in the condemnation of mass surveillance and interception of communications. Many state representatives attended the meeting with statements of condemnation of mass surveillance and interception of communications already prepared and agreed with neighbouring states on whose behalf they were mandated to speak.

While one might well expect the German representative to present a text on behalf of Austria, Hungary, Liechtenstein, Norway, and Switzerland, it is perhaps less obvious that Pakistan, speaking on behalf of Cuba, Venezuela, Zimbabwe, Uganda, Ecuador, Russia, Indonesia, Bolivia, Iran, and China, would also present an agreed text condemning the practices. While the counter move particularly in respect of this second set of countries is usually to attack them on the basis of their internal practices of surveillance and suggest, if not accuse, them of hypocrisy, the fact of the intervention nonetheless must be noted and the possibility that a group of states with serious disagreements among themselves would choose common ground on this subject.

The next step will be for the High Commissioner for Human Rights to prepare and present her report to the Human Rights Council in September 2014. Undoubtedly, her team will be presented with substantial amounts of information, evidence and legal argument to assist in the writing of the report.

In the meantime, our data continues to be hoovered up in industrial quantities. Private sector actors tell us that it is now cheaper to store data than to delete it – a potentially game-changing factor in the economics of mass surveillance. The compatibility of mass surveillance with human rights is already a matter of urgent concern. It is in all our interests that the UN continues its review of the compatibility of these practices with internationally agreed human rights standards.

This paper is based on a contribution to the article, 'After Snowden, rethinking the impact of surveillance' as part of a feature on Mass Surveillanceco-authored with Zygmunt Bauman, Didier Bigo, R J B Walker, Vivienne Jabri and Paolo Esteves, to appear in the forthcoming issue of International Political Sociology, 2 (2014).

Read more from our 'Joining the dots on state surveillance' series here.


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