Digital Surveillance

• Credit value: 30 credits at Level 7
• Convenor and tutor: Bernard Keenan
• Assessment: a 4000-word essay (100%)

Surveillance is ubiquitous in modern society. Edward Snowden’s decision to leak thousands of NSA and GCHQ documents in 2013 only confirmed what many technologists and privacy campaigners long suspected: that governmental agencies around the world were actively developing and deploying mechanisms to access, collect, process and potentially analyse all global and domestic communications. The British GCHQ programme was aptly titled, ‘Mastering the Internet’. GCHQ and its allies were shown to be sweeping up all internet traffic from undersea cables, hacking into foreign computer networks, accessing databases from communication companies and other government departments, and training computers to learn to spot security threats automatically. In the face of such vast secret surveillance powers, how can the law respond, and how can a democracy protect itself?

The question is complicated, for at least two preliminary reasons. First, there is an expectation that governments should use their powers to protect citizens from harm. Thus, the question becomes who should be protected, and who should be put under surveillance; a point summed up by the maxim, ‘If you have nothing to hide, you have nothing to fear’. We will open the course by debating this moral and ethical assumption as to the legitimacy of the realm of secret governmental powers, and then consider some recent caselaw on mass surveillance and privacy that has developed in the European Court of Human Rights, the US and the UK.

Second, we consider the fact that much of the data that is utilised by governments to spy on us, and the techniques for analysing it, are the same data and techniques used to organise our private and public lives in the digital environment. We will examine the role that devices as well as ‘Big Data’ platforms, like Google and Facebook, play producing an environment in which surveillance is assumed - a surveillance society. Are we consenting to mass surveillance when we consent to share data with Facebook? And are there technical solutions, such as encrypting our devices or modifying our online lives, which could do a better job than the law at protecting privacy? And if so, would these measures lead to a better society? The second part of the course introduces these technical questions (no prior technical knowledge is required or assumed).

Once we have considered the basic legal, ethical, and technological dimensions, we will examine the legislative history of the interception of communication and surveillance powers in the UK, with particular focus on the recent Investigatory Powers Act 2016 and the way that it is expected to work. Most importantly, it is designed so that it can both oversee government surveillance whilst allowing agencies like GCHQ to continue to work in secrecy. Its critics call it the ‘Snoopers Charter’, simply legitimating secret mass surveillance. The government says it's the most detailed law on surveillance powers anywhere in the world and will provide proper democratic oversight. Might they both be right? If so, what does this mean for the law?

By the end of this module you will be able to:

• understand the problems presented by mass surveillance and communication technology in society, and the issues that these powers create for democracy and equality under the law
• apply recent developments in different jurisdictions to the question of mass surveillance, demonstrating an understanding of the current law in action, and how it relates to theoretical questions about law, surveillance, and society
• evaluate the utility of law in providing a satisfactory response to the question of mass surveillance, and evaluating an alternative model based on using encryption tools instead, in terms of the impact these models might have on society
• critically assess recent developments in legislation and the use of secret proceedings within the legal system in relation to democratic norms using theoretical approaches.