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Boundaries of Law: Exploring Transparency, Accountability, and Oversight of Government Surveillance Regimes

Korff, Douwe and Wagner, Ben and Powles, Julia and Avila, Renata and Buermeyer, Ulf, Boundaries of Law: Exploring Transparency, Accountability, and Oversight of Government Surveillance Regimes (January 5, 2017). Global Report – January 2017. Available at SSRN:

“Modern information technologies have given governments an unprecedented ability to monitor our communications. This capability can be used to fight terrorism and serious crime through targeted surveillance that is proportionate and subject to judicial control. What we have witnessed, however – as evidenced by the revelations of whistleblower Edward Snowden – is exponential growth in indiscriminate, generalised access to bulk communications and Internet data (often referred to as “mass surveillance”). Why does this matter? Our entire lives are online. We generate and share more information than ever before; information that could be abused in the wrong hands. If not tackled, this untargeted, suspicionless mass surveillance will create a chilling effect on speech, trade, and creativity online, and people will refrain from utilizing the Internet to realise its full potential for economic, social, and democratic progress. In addition, companies are increasingly called upon by law enforcement and national security agencies to cooperate in investigations, resulting in a loss in consumer confidence and damage to a company’s bottom line. Public opinion has shifted since the Snowden revelations. Now more than ever, we need an informed debate on the role of government surveillance in national security and law enforcement. We need to ensure that such surveillance is accountable and transparent. Experts surveyed in the 2014 Web Index concluded that 84% of the 86 countries covered lacked even moderately effective oversight and accountability mechanisms to protect Internet users from indiscriminate surveillance. A finding as worrying as this needs to be tested, so we carried out a deeper comparative analysis of a smaller sample of countries: Kenya, DR Congo, South Africa, Colombia, Germany, Myanmar, India, Pakistan, France, Turkey, Egypt, Russia, the United Kingdom and the United States. We conducted interviews and desk research on each jurisdiction to get a better idea of the current state of affairs. We have also tried to analyse intra-country intelligence sharing networks and “clubs”, but since much of this occurs without accountability, transparency, or meaningful oversight, there are limits to that analysis.”

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