Breaking into Secret Surveillance State

There seems to be little overlap between “open government” and “surveillance state”. Public security –the most quoted justification behind surveillance – is routinely presented as the exemption from the expectation of state transparency. While we have seen significant developments towards more openness in such sensitive areas as public procurement, health management or IT infrastructure, when it comes to “our security” all rational arguments seem to fail. No matter how many abuses and controversial policies may have been exposed by whistle-blowers like Thomas Drake or Edward Snowden, the government will always claim that secrecy in this area should be preserved at any price. Why so? Who benefits from such state of play? It is high time to reclaim our right to public information beyond the national security exemption.

Have we experienced any damage to our collective security as a result of any of the disclosures made by Edward Snowden? No. Have we seen an increase in public debate regarding the practices of state surveillance and pressure for more accountability of those in power? Yes. It should come with no surprise that those in power will try to divert public attention from their own malpractices towards potential detriment caused by whistle-blowers. “Even though we cannot show you any evidence to prove that, believe us that by exposing our secret surveillance programmes, they give advantage to our enemies”. We have heard this argument only too often. How much more evidence do we need to understand that the enemy we should fear in the first place is our own secret state, which can collect all data and use it for any purpose?

The most important thing that we have learnt from NSA whistle-blowers is that the international surveillance machinery, developed over last 15 years under the label of “war on terror”, is not about fighting terrorism. It is about controlling public dissent, spying on political allies, monitoring political activism, carrying out trade negotiations and many other causes that may seem quite useful from the governments’ perspective but not quite legitimate if we ask citizens. The only way to learn about the actual scope and goals of surveillance is to subject it to some form of democratic control. Transparency is by no means a sufficient tool to achieve that goal, but it is certainly the first step.

Without reliable data showing which groups and individuals are the targets of surveillance or what methods—beyond what is prescribed by the law—are used by the police and intelligence agencies, public debate is hardly possible. We have experienced this obstacle in Poland, where disclosures made by Edward Snowden (even those directly relating to Polish government) have not led to a significant public outcry. The government simply ignored these allegations and refused to answer any questions regarding its involvement in mass surveillance programmes on the grounds of national security. Panoptykon Foundation, together with a couple of other NGOs, used the only tool available to citizens in such circumstances: Freedom of Information Act (FOIA).

One year ago we sent 100 detailed questions to key public institutions, including the Prime Minister. Since then we have been fighting the government in the courts either on the grounds of its inactivity (some questions were simply ignored) or refusal of public information. None of the questions concerned issues that could undermine public security. Things that we wanted to know range from basic data that should be available to citizens (e.g. how many times Prime Minister gave consent for cooperation between Polish and US intelligence agencies) to political rationale behind controversial decisions, such as refusal of asylum to Edward Snowden or non-reaction to the allegations that EU-US agreements on data transfers have been infringed.

Experience of Panoptykon Foundation in fighting for more transparency in the area or surveillance and national security demonstrates there are more mental than legal barriers. The good thing is that courts seem to be our allies in this fight. Decision after decision, practices and presumption of those in power will have to change. We have already seen this development regarding the use of telecommunication data by law enforcement and intelligence agencies. Five years ago publishing even statistical information about such requests (e.g., who is asking, how often, and what type of questions) seemed inconceivable. Today almost all intelligence and law enforcement agencies publish such information, some at their own initiative.

Last week District Administrative Court in Warsaw issued an important ruling against Polish Prime Minister, saying that a public institution cannot simply say it “doesn’t know” in response to a FOIA request. In other words, the Prime Minister should always justify why he does not have information about an issue that falls within the area of his competence. One more step towards political accountability and still long way to go. Yet, we have no other choice than to challenge the argument that transparency in certain realms of public life can be dangerous. The only real danger for democracy is permanent exclusion of certain topics from the public debate because – through the fog of secrecy – they cannot be seen and, even less, debated.

Katarzyna Szymielewicz

The arcticle was originally published on Open Up? webpage, November 10, 2014.