‘역외 감시’ 원칙에 대한 국제적 대화의 필요성 (그리고 한국의 프리즘?)

A Call for Global Discussion on Principles of “Cross-Border” Surveillance  (and Korean PRISM?)

Kyung Sin (“K.S.”) Park, Open Net, South Korea

What procedural safeguards should we demand from our government agencies conducting communications surveillance on people in other countries, regardless of where the surveillance is taking place?

Unbeknownst to many, this is a question exposed bare by the recent controversy surrounding PRISM, a US project to conduct warrantless or secret-warrant surveillance on people both inside and outside the US. We need a global discussion to answer this question, which is more complex than we may think.

In an ideal world, maybe we could outlaw all wars and military actions. We could also ban all domestic or foreign surveillance, except under warrants carefully crafted by an independent judiciary wholly disinterested in making surveillance a practice. In fact, in such a world, we could also dissolve all national borders.

We do not live in that ideal world. In this real world, it is surprisingly unclear which international norms should be applied to answer questions like these:

Shouldn’t the agents of MI6, CIA, or KNIS(Korean National Intelligence Services) obtain lawful court warrants to wiretap or eavesdrop on their potential enemies?

Lack of such norms allowed the US to set up FISA more than 30 years ago, to allow warrantless or secret-warrant domestic surveillance on foreign agents in the US. Moreover, with the advent of the global communication system that is the Internet, US surveillance systems were enabled to access a vast trove of communication information of foreigners in and outside the US.

Viewed from a non-US perspective, it seems that FISA has unrestricted power, whether the organization itself even wants it or not. Indeed, there is no international principle on cross-border communication surveillance, i.e., state surveillance on people residing outside that state’s territory, regardless of where the information is intercepted.

Maybe for this reason, we there is insufficient action from the civil society in the US demanding a full dismantling of the FISA system. Their immediate concerns have been largely local – that their government used wiretapping against their own citizens or residents who are not foreign agents, as proven by the recently leaked court order requiring disclosure of millions of Verizon users (most of whom were innocent US residents).

Also, the US government is now suspected of sharing the PRISM data with several other countries of mainly Anglo or Germanic ancestry. People of these countries certainly should protest against such sharing which allows their governments to sidestep all the domestic due process of law, warrant and what not, in achieving surveillance on their own people. So, Americans and their “allies” already have enough to be angry about.

But what about the rest of the world’s nations, that do not seem to have gotten a share in the PRISM data? As for Koreans, if we are to be angry for the same reason that Americans are angry about FISA and PRISM, our civic anger should be first directed towards our own governments, conducting surveillance on our “own citizens.” In Korea, a country with a total population of 50 million, 7,167 phone numbers were wiretapped, communication metadata from 37.3 million phone numbers (or email addresses or internet ids) were turned over to the police, as well as users’ identity for 5.84 million phone numbers or internet ids in 2011 alone. (note2)

The number of Korea’s wiretaps per capita is about 15 times the U.S. (2,732) during the same period.(note3) The laws are in place and do require, as other developed countries do, a super-warrant for wiretapping and a certificate of “need to investigate” for acquiring communication metadata. However, do more than half the total population of Korea “need to be investigated”?

The numbers only account for the ostensibly domestic surveillance, on top of which, Asian constituents should also worry whether their own foreigner-targeting intelligence agencies are actually targeting their domestic citizens. Certainly, non-Americans shocked by PRISM should also take a sane look at whether they are watched over by their own PRISMS. (Just last week, the Korean Police even set up a ‘backdoor’ with major telecommunication companies for metadata.(note4) Now automated, there is no knowing how many phones will be metadata-searched.

At the same time, for this to be a learning process for everyone including Americans, countries that attained that data, and the rest of the world outside the loop, we should begin a global discussion on the question: can we make intelligence agents targeting foreign nationals act under legal procedures protecting the rights of people to whom the agents are not politically accountable?

To put it bluntly, since these intelligence agencies are established by our democratically elected governments, how much should we allow ourselves to snoop on one another across the borders? Should they obtain warrants from courts?

Now, of course, before answering, we should take in the weight of these questions because the answers to them will determine the fate of all secretive overseas intelligence-gathering agencies including NSA. It is a surprisingly difficult question to answer.

I conjecture that the difficulty comes from the fact that, whereas a warrant is valuable because it is issued by an official independent from the success of the investigation and yet politically accountable to the people under surveillance. For obvious reasons, there cannot be such official for cross-border surveillance.

At any rate, there is a quick way to jumpstart such global discussion. Open Net, EFF, Privacy International, and many other communications civil rights groups have engaged in an effort past few months to write down the human rights principles applicable to all forms of communications surveillance.

ICCPR already protects privacy but communications privacy presents special issues because communications are on one hand human actions traversing often large expanses of time and space vulnerable and arguably open to interceptions and on the other hand carry the messages, the results of the communicators’ personal thoughts.

We just need more of you to participate in this process to decide on the territorial scope of these Principles, which will also set the restrictions on cross-border communications surveillance.