T-minus 81: The PhD adventure begins…

It is T-minus 81 days until liftoff on my PhD research. I received and accepted my offer to study this week (Tuesday), and I’m still getting it into my head that this is really happening. Don’t get me wrong, I’m very excited and quite eager to get going – in fact, I’m not waiting to begin reviewing the current literature as you will see later. However, as I’m very familiar with the mountain climb that is a PhD (given my friendship with many colleagues who have made the climb), there is a certain sense of awareness about the sheer volume of work required and the toll it will take on one’s life.

Part of the requirements of the programme are regular progress updates on how the research is going. As a result, it got me thinking back to the blog here and what purpose it might serve as I go forward. I have decided to use it as a tool to document and communicate the journey to anybody interested in pursuing a similar endeavour.

As for the subject of the PhD, I have proposed to focus on what I, in the preliminary, refer to as an evolutionary approach to understanding the function of self-determination. I will be examining the legal relationship between ‘peoples’ and the State, the concept of sovereignty and legitimate authority, and the exclusive legal personality of statehood to which some sub-state groups aspire. This is borne out of previous research I have done regarding the Québécois and Scottish independence referendums. I am seeking to test the validity of restrictions on the exercise of the right of self-determination insofar as it may affect the territorial integrity of a democratically-inclusive rights-adhering nation-state. As such, there may be some terminology issues from time to time, and I hope to offer some clarity where I can. At present, a number of recent events have also contributed to the international legal and political landscapes, in particular the recent advisory opinion by the International Court of Justice on Kosovo (referred to the Court by Serbia).

The format will be fairly simple: every title will reference the day of the PhD, and the content will reflect two themes. The first will be some observations based on the previous day(s)’s research – specifically on the topic of the PhD itself. This is for the legally-curious who are into the material. The second half will consist of what my partner refers to as ‘life admin’ – the human cost of the project, where my head is at, and how pursuing this doctorate is affecting my personal life. Each post will conclude with a reference to one or two articles/treaties/documents that I will be reading and reviewing in the next post, along with any benchmark events that are of interest.

So, the blog is shifting slightly towards what one might call a bit of a ‘vanity project’, albeit an important facet to the PhD experience overall. I welcome all questions, criticisms, comments, and concerns that you might leave for me in the (moderated) comments section below.

One last point: I will also audio record these posts allowing for a more accessible format should you wish to give your eyes a rest.

Today’s article: Katherine Del Mar, ‘The Myth of Remedial Secession’ in Duncan French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (CUP 2013), pp 79-108.

Conventions/Treaties:
Charter of the United Nations
International Covenant on Civil and Political Rights (1966), Article 1
International Covenant on Economic, Social, and Cultural Rights (1966), Article 1
UN General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970) (A/Res/25/2625)

and in honour of my American cousins…
The Declaration of Independence (4 July 1776)

That’s it from me today, and I’ll see you in the next post…

It’s 1… 2… 3… I’m still none the wiser.

I’m going to keep this post brief. Along with millions of others, I tuned into the US Presidential debate in Las Vegas last night to see what would come of (borrowing from The Daily Show) Democalypse 2016’s showdown between a deep fried Cheeto versus the singularly most qualified American to run for office – with the exception of incumbent Presidents. It’s already clear which way I see this match-up, but that doesn’t necessarily mean I’m a happy lawyer this morning.

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The next US President will appoint 2-3 Supreme Court Justices; affect next 25 years of American legal development

Sure, Hillary wiped the democracy floor with Donald: one came over-prepared, the other with over prepped hair. It was not much of a contest as we were swiftly reminded of how factually stuffy the Democratic candidate can be (see Q1. Literal vs Living Constitutional interpretation; Q2. 2nd Amendment & the Heller decision/Roe v Wade), and how the guy with R beside his name could make any question about his ‘bigly greatness’ (‘Supreme Court nominees? I have made a list of 20!‘). It was clear which of these two individuals is fit, ready, and competent to be the commander-in-chief, as well as America’s First Diplomat. It was like visiting the slaughterhouse and finding out how sausages are made – on the same day.

However, we’ve all focused so much on the personality of the candidates on both sides that we have forgotten what these debates really are: a glimpse into the next 4 years of geopolitics and international relations.

rare-vintage-rolling-stones-concert-snapback-baseball-hat-cap-0696a32d31c62b27a29b9ef1c011ec89I am not an American. I have Americans in my immediate family who reside in the continental 48, and have great admiration for the idea of America and the American dream – both which are sadly faded like a Rolling Stones ball cap you refuse to offer up to the moth gods.

all_over_the_map_anim_500_clr_13636The US Presidential debates are a crucial platform that we here in the UK and elsewhere in the world, particularly in Russia, observe with great attention knowing that this is the 50/50 split options in foreign policy that will be affecting all of us in coming years. The only thing I can glean from the debate is what I already knew: Trump will repeat praise from any source, including a warmongering Kremlin, right up until somebody with better sense leans in and whispers to him “You are running for the US Presidency, not the Russian.”

That’s not to say that I wouldn’t like better relations between NATO and Russia – though I fear war is coming, I absolutely would encourage the avoidance of such a conflict brimming with the possibility of a nuclear exchange. Trump mentioned that he thinks Putin has outplayed Hillary. He’s half-right. Putin’s long game is legendary, and he is currently exercising his realpolitik muscles to their fullest. However, the suggestion that Trump is a suitable adversary is laughable – Hillary may face a credible opposition from the Kremlin, but Trump is little more than slight speed bump at the office car park to Putin – the former KGB operative wouldn’t even think about Trump 5 seconds after he rolled over him in the geopolitical arena.

The economic discussions about global trade were also abysmal. All we heard was ‘Hillary is for TPP, Hillary is not for TPP’. Despite popular opposition based on hypothetical risks to special interests in the USA, greater trade relationships are applaudable. Sorry anti-globalisation folks, the liberalisation of markets around the world have been the largest single contributor to peace and security throughout the world.

2016-07-02
Hardly a ‘decisive’ or ‘overwhelming’ result considering 17.4 million votes represents 34% of all eligible voters in the Brexit Referendum (38% of registered voters). But we’re doing it anyways, because… democracy.

Not saying it’s perfect – 70 million refugees and still eye-watering levels of poverty around the world suggest there’s still massive work to be done. But TPP, much like the TTIP agreement between the EU & America, actually increases value in these countries. We, in Europe (esp. UK) and the US are haemmoraging economic opportunities based on populist opposition informed by a YouTube video they watched after binge watching Homeland on Netflix. Say what you will of Donald Trump and his followers, we have our own skeletons in Europe that are coming around to air themselves as they may from time to time.shaking_head_in_disgust_anim_500_wht_14992

Will Hillary win on November 8? Yes, very very likely.

Am I confident that I have a clear understanding of the international and military policies that will impact globally for the next four years? No more than I was when this circus pitched its democratic tent. And for that reason, I’m concerned. There needs to be clarity, and hopefully (and despite destroying her Republican rival) she will continue to reach out with information to inform both the US electorate and the rest of the planet as we march inexorably towards the conclusion of this dark, dismal chapter in the tale of democracy. I’m not in a rush to test whether 2020 promises more of the same or worse…

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Call for A Few Good Academics & Lawyers

To my friends and colleagues in international law around the world,

I am looking for some of you good people to volunteer some of your time and grey matter towards an analysis project reviewing the UK’s Iraq (Chilcot) Inquiry. It is without doubt that many of us have waited a very long time for the report to be released. Indeed, some of you may have been involved in matters directly related to representations before the Chilcot Inquiry. I know many of you will be interested in reading the report for personal and/or professional reasons. As somebody who lectures on War Crimes, I anticipate my students will be keen to raise the matter in the autumn.

Here is the thrust of the project:

I’m asking for us to come together and share our insights amongst ourselves, and to put out our review to media outlets for their use in the future. No matter where you are in the world, if you are able to hunker down with a PDF section of the report, provide annotations, and be able to write a review of the key information, we are looking to collaborate on a sort of international legal Cliffs/Coles notes to Chilcot, followed by a summary of possible implications the report might have. This may include providing interviews to television news, radio, and newspapers in your various locations – the wider the spread of academics and lawyers, the wider we will offer the final review.

Please get in touch if you are interested in participating. I’m hoping to get this project going rather soon, with the aim of having a completed publication by the early autumn 2016. You can either get in touch be responding to this post, or if you have my personal details get in touch directly.

You will require internet access, Adobe Acrobat Reader (free), and access to Google Docs. Ideally, you should be able to also participate in either Skype or Google Hangouts audio/video conferences too. I will provide technical support as needed.

I look forward to hearing from you all. I’m certain many others are as well.

Best,
George

Canada’s Last Chance? Truth, Reconciliation, Identity, and the Way Forward

A former high school teacher and now friend, Rex Taylor (@RexFTaylor) , posted to Facebook an article by John Ralston Saul ( (novelist, essayist and co-chair of  The Institute for Canadian Citizenship) regarding the conclusions of the Truth and Reconciliation (“Truth and Reconciliation is Canada’s last chance to get it right” Globe and Mail, 5 June 2015)  looking into the nightmarish ‘Indian Residential Schools’ system that rightfully should be a shameful and condemned chapter in Canadian history. Rex had asked for my opinion on this article, and due to the limits of commenting in-line on Facebook, I thought this would be a more effective medium.

Canada: A Nation in its Spring

First thing first: Canada is multi-cultural nation unique in my opinion amongst other States in the international community. (Mea culpa: I am a mixed-race Canadian citizen, as well as being a British citizen – currently living in London, UK) Growing up in Toronto, I was immersed in a diverse community where the word different did not necessarily mean bad. In contrast, my experiences in the UK have many a time included statements such as “if they’re going to come to our country, then they should accept the way things are here…”, often times whilst tucking into a tasty curry. (I’ll return to the concept of ‘the Other’ later…)

It was a period of transition, however, whereupon a culturally European-centric domination within Canada was being replaced by a more reflective and inclusive system of tolerance, exploration, and camaraderie. Certain stalwart and entrenched attitudes sounded off about this departure from their self-styled vision of historic privilege (and no, I’m loathe to go around accusing all of inherent expressions of privilege) wherein their homogenous vision of Canada was relegated to the waste bin of history. These growing pains are inevitable, particularly given a difficult existential question posed to most students in Canada: What is a Canadian?

“…No constitution, no Charter of Rights and Freedoms, no sharing of powers can be a substitute for the willingness to share the risks and grandeur of the Canadian adventure. Without the collective act of the will, our Constitution would be a dead letter, and our country would wither away.”

Prime Minister Trudeau, 17 April 1982

I suspect that such a question’s elusive answer depends greatly upon one’s self-identity, their surrounding community, and their experiences within the Canadian context. The lack of a single definition can be both traumatic and exciting – much of our identity comes from certain historical (genealogical) linkages that provide relational sets of rules and expectations of conduct, and where these do not sound in a national identity, one may begin to question the value of a society where expectations and rules may differ from one person to the next, from one to community to another. On the other hand, there exists a freedom to carve out a truly unique identity for Canada, one distinct from our colonial past and its cultural homogeneity. Canada is still in its ‘spring’ – though a process started in 1867, we only truly separated completely from Britain in 1982 with the Constitution Act (Canada) / Canada Act (UK) repatriating the Constitution and establishing our Charter of Rights and Freedoms. In a positive light, it is perhaps enlightening to remember the spirit of the nation when it became a truly sovereign and independent State:

However, in order to pursue the freedom of that Canadian identity (what PM Trudeau referred to as a “fresh start”), we must confront our past treatment of disenfranchisement of Canadians who suffered greatly from discriminatory policies and continue to experience the generational effects of those transgressions. This includes, inter alia, the horrific legacy of the so-called ‘Indian Residential Schools’, as well as our troubled relationship with the indigenous peoples of Canada.

(Dis-)Honouring the Treaties: Rediscovering our Canadian Legacy

By very brief means of a history, the nature of the relationship between the indigenous communities in Canada and the European nations that settled there were established by treaties, such as the Great Peace (1701), the Peace and Friendship Treaties (1725-1749), the Royal Proclamation (1763), and the Numbered Treaties (1871-1921). Most of these treaties meant land acquisition rights for Europeans in exchange for material goods thereto unseen amongst the First Nations peoples. Alliances were forged that ultimately lead the British domination of North America, and subsequently the repelling of American attempts to seize Canada after the US Independence from Great Britain. In short, there would have been no Canada without our First Nations brothers and sisters – settlers would have succumbed to the harsh winters and lack of geographic knowledge would have meant defeat at the hands of the USA.

Interestingly, from my perspective as a public international lawyer, is how these treaties are in essence international covenants between sovereign peoples. In fact, the Truth and Reconciliation Commission frequently refers to these agreements in the recommendations (Calls to Action). However, it is clear that this treaty-based relationship has deteriorated over the centuries, with many of the treaty provisions being ignored, unilaterally rescinded, or forgotten. The conditions of living for the First Nations indigenous peoples have been repeatedly subject to interventions due to public health and welfare concerns – often without consulting the people themselves.

One of these interventions was the Indian Residential School system. Originally conceived as a means of ensuring education for subsequent generations of Native people, the schools (typically run by the Church with the approval of the Canadian government) sought to assimilate children by preventing them from exploring their First Nations identities. The federal police, the RCMP, were authorised by law to remove Native children from their families by force and relocate them into the residential schools. These children were made to dress in non-Native clothing, and set a curriculum intended to create industrial workers – farming for the boys, and seamstresses for the girls. Religious indoctrination was part and parcel of this ‘education’, where the spiritual aspects of the children’s heritage was sacrificed for Christian worship. As funding became an issue for these schools, the work carried out as ‘education’ was typically used to subsidise the running costs of the school – in essence, these were Canada’s sweatshops run with child labour.

And if that were not enough, the children were subject to extreme physical and sexual abuses at the hands of their Church-provided teachers. The emotional and psychological traumas suffered by these people continue to present in generational challenges regarding their relationships with family and community. Alcohol and substance abuse amongst these victims is both common and tragic. It is unsurprising that Canada’s highest ranked jurist, the Rt Hon Beverley McLachlin (Chief Justice of the Canadian Supreme Court), has agreed with many that this dark Canadian legacy should be considered as ‘Cultural Genocide’.

We as Canadians, both indigenous and non-indigenous, must turn our attention to this matter that deeply affects such core community within our lands. We owe it not only to the victims of this legacy, but also to ourselves as Canadians who must understand how our relationship with the First Nations is perhaps the first and foremost aspect of answering the question of What is a Canadian?

Beginning Again, Remembering the Past

Over the past 33 years, the relationship between the Canadian federal government and the First Nations reads like a dysfunctional family history. The Oka standoff in Quebec, numerous blockades – notably the one I witnessed personally just outside of the Six Nations of the Grand River reserve in Caledonia, Ontario (this dispute began in February 2006 and continues today), and numerous failings regarding quality of life on the reserves across Canada. One cannot help but feel frustration and anger that such a situation exists in a country that is typically viewed by the world as a beacon for tolerance and understanding in a multi-cultural population.

We have, of late, seen a much more politically engaged Native population, eager to address these concerns and to seek constructive methods for building a new and positive relationship. Here is a video by John Ralston Saul from October 2014 addressing this very point:

However, as with any Truth and Reconciliation process, we should begin with a certain ethical foundation:

  • Our intentions should always drive towards a strong, dignified, and respectful pan-Canadian relationship with each other going forward.
  • We are all Canadians – any approach that aims to create an ‘us and them’ division ultimately will fail. Canada should never have two-tier citizenship, in attitudes or in practice.
  • Inclusion and consultation with affected persons should be the bedrock of any policies, whether specifically dealing with indigenous peoples or non-indigenous groups.
  • We must recognise the failings of our past: there is not a light under which the current treatment of the Aboriginal peoples of Canada can appear to be positive. For instance, the current system of land claims settlements based on the Treaties is a violation of our principles of law, namely to have legal redress in a timely manner. The current system typically takes over 20 years to consider each claim, and that is simply unacceptable.
  • Equally, mutual respect between all the peoples of Canada requires that we individually do the heavy lifting of changing, what Trudeau referred to as the ‘willingness to share the risks and grandeur’. Ralston Saul suggests that it is the non-Natives of Canada that are the only ones that must change. I disagree – change must come of us all, and we must together embrace the effort to begin again, to have ‘failed and to try again’.

McLachlin CJ (in her speech of 28 May 2015) points out three principles that apply not only to the TRC, but overall to the relationships of Canadians throughout the land, what she refers to as essential to the ‘norm of tolerance’: “first, insisting on respect for the human dignity of each person; second, fostering inclusive institutions and cultural attitudes in civil society; and third, maintaining the rule of law.

“Living together in the ethic of tolerance is not easy. But it is worth the effort.”

Rt Hon Beverley McLachlin, Chief Justice of Canada

While the first two of the Chief Justice’s points are relatively undeniable, it is the third point that should be scrutinised by both sides of this situation. Certainly, the legal obligations undertaken in the past by Britain and France, now inherited by Canada, have been treated with a declining sense of importance by provincial and federal authorities – in certain circumstances completely violating what amounts to international law. This too is not typically the vision of Canada that most citizens wish to see as their identity. Equally, however, both Native and non-Native participants in reconciliation must submit to the precept that it is the law that treats us all as equals, and we all must commit to adhering to the law whilst moving forward towards a mutually beneficial process of re-establishing normal and positive relations between all Canadians. It is this commitment to the legal and social equality of its citizens that takes us further into the realm of answering the question of our collective Canadian identity, non-Native and Native citizens alike.

Asymmetric Citizenship: How the Canadian adventure may end in disaster

While accepting the premise of Chief Justice McLachlin, and (personally) finding much to admire in PM Pierre Trudeau’s 1982 vision of the ‘Canadian adventure’, there is one more aspect that truly ought to concern all Canadians: Canada must be for all of us, equally and simultaneously.

Much of the Constitution of Canada is predicated upon a collective system of resource sharing and power sharing in order to offset the various means of fluctuating circumstances that can befall one community or another from time to time. The financial relationship between the provinces was conceived as a means of equalising the Canadian quality of life in a manner that no Canadian would be left behind.

Sadly, this Constitutional premise has been sorely neglected in relation to the sharing of Canadian resources with the indigenous peoples to whom we owe our nation’s existence. All one has to do is pay attention to the plight of Natives living on certain reserves where there has been a complete collapse of social welfare and infrastructure. It is a difficult thing to realise standing at the intersection of Bay and King Sts in Toronto that there are entire communities without adequate sanitation, running water, or even shelter against our notoriously unforgiving winters. It is difficult perhaps due to a lack of active consideration, or worse, complete ignorance. As a society, we should be able to stand in the most advanced of cosmopolitan metropolises and still feel a kinship with the East Coast fisher, the Prairies farmer, the Inuit hunter. A Canadian is a Canadian is a Canadian – we must equally “share in the risk and the grandeur”.

When we can allow our fellow Canadians to be treated less than equally, I would be remiss to neglect Shakespeare’s sage wisdom in the Merchant of Venice:

“If you prick us with a pin, don’t we bleed? If you tickle us, don’t we laugh? If you poison us, don’t we die? And if you treat us badly, won’t we try to get revenge? If we’re like you in everything else, we’ll resemble you in that respect.” – Shylock, Act 3 Scene 1

While I have suggested that the future of the Canadian citizen must be grounded in the rule of law, we must also accept that, much like Shylock, the turbulent response of the Native peoples was warranted given the abhorrent history of treatment by the colonial and post-colonial governments of the country. As mentioned in the TRC’s Call to Action recommendations, the history of the residential schools ought to form a part of the factual background when dealing with those persons who have taken up acts of civil disobedience and action to draw attention to this plight.

However, if we are to move forward together, we must not simply be aware of the tragedy of the residential schools as events that affected only the indigenous people of Canada. I have been aware of public attitudes when discussing similar events that traditionally fulfill the international legal definition of genocide, e.g. the Holocaust, the Rwandan Genocide, the conflict in the territories of the former Yugoslavia. Most of the perception is that these crimes were committed against a particular group who were the identified victims. I am often concerned that, while indeed the targeted protected group are the primary victims of these crimes, the path towards eradicating actions conceived in genocide (in the present case, the aforementioned cultural genocide) must rely upon the larger humanity recognising that these crimes are crimes against all of us. The diversity of humankind is its strength – linguistically, socially, culturally, ethnically, genetically – and attempts to reduce this diversity injures the human condition for us all. In Canada, the heritage of the Native peoples in Canada is as much a part of their identity as it is ours. We collectively must work to alleviate the injustice and inequality between Native and non-Native citizens because in the final sum, each of our individual identities can only truly be conveyed in relation to all of our fellow Canadians. Understanding the place of the residential schools requires us all to employ, in a word, empathy.

Is this Canada’s last chance?

John Ralston Saul has employed the rhetoric of this moment being the proverbial gun-to-the-head for any conception of Canadian identity being one of compassion, tolerance, and inclusiveness. While most of his discourse is agreeable and well-considered, I’m afraid I cannot agree with the terminal diagnosis that he has determined for Canada.

This is not a country defined by last chances, but moments of reckoning whereupon we are called upon to recognise our history, reconsider our direction, and reinvest ourselves in pursuit of our principles as a nation. Saul himself states: “The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.” Agreeing with this, it follows that we can never assume that we have perfected the Canadian formula. Indeed, even if we could fully implement the recommendations of the TRC, we must be brave enough to realise that other challenges may arise in the future.

What makes us all Canadian is a commitment to ourselves and each other that we will come together in these moments of reckoning with the entirety of our community’s will to deliver on the promise of Canada for all of her citizens. The Constitution provides us a very robust and principled framework for engaging these challenges. However, as noted by PM Trudeau, it is the people who breathe life into this country, no matter what hurdles come our way.

While it is right and overdue that the dishonourable legacy of the residential schools be openly addressed and rectified, it is important for all Canadians that we maintain our commitment to each other, conceived in dogged determination and hope for our nation’s future. We must, in our uniquely magnificent multi-cultural diversity, empathise with each other in a manner consistent with tolerance and admiration for our differences, and to truly feel the tragedy of the few is a tragedy for us all. This is not only a moment of healing for the indigenous peoples of Canada, it is a moment for us all to come together in strength and support for all Canadians. We must move forward together, or the dream of Canada shall wither on the vine.

Is this Canada’s last chance? No, it is not. However, answering the question ‘What is a Canadian‘ will greatly depend on how we deal with our past and work towards ensuring a bright and inclusive future for all people in Canada.

I wish to take the opportunity to dedicate this post to my friend and teacher Mr Rex Taylor. You opened the eyes of many of your students and imparted the skills of critical thinking and compassion. I could not possibly have begun to answer the question had it not been for teachers like you.

Down the Digital Rabbit Hole: Public Expectations of Internet Privacy

black_laptop_spy_watching_500_clr_4398By way of an introduction, HBO’s Last Week Tonight with John Oliver pulled off quite a coup when bringing the issue of state surveillance back to America’s attention. Oliver appropriately highlighted the public’s waning interest regarding the NSA’s sweeping information program PRISM and its analogues, revelations that came to light when an NSA sub-contractor’s employee, Edward Snowden, fled the US with thousands of classified documents which he has illegally disclosed to journalists around the world. Using the format of ‘streeter’ interviews, we are afforded a glimpse of relative unfamiliarity with the subject by a sampling of people on the streets of New York City. However, as has become expected of HBO’s humourous current events show, Last Week Tonight takes the opportunity to drive forward from a simple satirical piece and had its host, John Oliver, travel to Moscow to meet with Snowden to discuss the impact of his actions two years on. Here’s the interview as broadcast on HBO:

In the interests of full disclosure, I am a huge fan of John Oliver, and this piece reinforced my position. Unlike a number of appearances by Snowden in the media in the past, Oliver packed in some serious questions and assertions that have been absent in those other interviews. Perhaps most provocative on a personal level was when the previous streeter footage was shown to Snowden with, amongst other errata, some wrongly identifying him as Julian Assange, the WikiLeaks founder currently under asylum in the Ecuadorian embassy in London.

However, this post is not necessarily a shot-for-shot analysis of Snowden’s statements or world view, nor is it a review of Oliver’s penetrating questioning of, as he puts it, “the most famous hero and/or traitor in recent American history”. The interview is simply the beginning of a more complex issue facing Americans and the rest of the world: What is the relationship between the technology of the internet, the ability of states to intercept information, and the public (civilian) expectations that they may communicate without unlawful interference?

The Internet as a Communication Medium

Snowden rightly states that it is difficult to synthesize the complexity of the technology into a few seconds that fit nicely into a sound bite. Indeed it is: the internet is nothing short of a silicon marvel that has exponentially moved the global human condition closer together. The good, the bad, the in between. The same network of fibre optics and microprocessors deliver your ‘like’ on an old primary school friend’s Facebook post, connect your Skype call with your parents in another country, and allows us all to get news of world events in near-real time – whether through conventional or new (social) media. The international exchange of information has never been faster, wider or convenient.

Now for the inevitable truth: the internet is a tool. Any moral evaluation of its social value is more appropriately a statement of the user. A similar albeit more difficult question exists about nuclear technology, a conversation also mentioned in Sunday’s LWT with regard to ongoing negotiations with Iran over its nuclear ambitions. Nonetheless, the internet has no inherent value but that for which it is utilised. For the most part, human usage of the internet is relatively innocuous and banal. In the present context, included in that is what may be considered low level domestic criminal activities that may lie outside the scope of legitimate national security interests.

However, the internet has the capacity to provide a means of communication for individuals and groups in coordinating and carrying out acts of terror and international criminal activities. Some of these include logistical support to groups like al Qaeda and Islamic State, or may be used by states to conduct illegal actions, such as the current conflict in Ukraine. It does not help that the sheer volume of data flowing throughout the internet masks the trail left by these subjects, making detection increasingly more difficult and prevention of action more so. It would also be salient to consider the novel means of use that are constantly being employed – in certain circumstances, free email accounts are set up and messages relayed using drafts in order to avoid actually sending a message between two people. Some terrorist groups even utilise the increasingly-prevalent VoIP technology used for in-game voice chat for popular video games as means to communicate via the internet. As access to and use of the internet spreads into every conceivable corner of our lives, those wishing to use this tool for violent acts of terror and criminality will develop new and innovate methods to thwart detection by intelligence and law enforcement agencies.

The Physical Nature of the Internet

I will endeavour to keep this brief: the internet is not a metaphysical concept – it is a physical object consisting of fibre optic cables, computer hardware and various languages of coded software. This reality is psychologically juxtaposed by nature of individual interactions by users of the network – whereas you would previously had to leave your house or invite others in to interact with people, the internet now provides the means of ‘telecommuting’ to work and socialising in 1s and 0s. Moreover, the actual technology we use now to connect obscures the nature of the internet. No more must you be seated in front of a great big desktop tower and screen using dial-up connections over the phone line, as 4G mobile data and WiFi have literally cut the physical cord from our digital devices. In fact, recent statistics have shown that more people access the internet now from their smartphone or tablet device than from a traditional laptop or desktop computer.

Much as a letter in the post sent to another country would travel through multiple locations on its way, the data we send from our phones, tablets, and computers traverses numerous jurisdictions before reaching its destination. In most instances, people cannot state where their information has gone even if they can identify to whom that information was sent. I recall visiting the House of Lords (‘HoL’ – the upper chamber of the UK Parliament) in law school and witnessing a debate over the posting of sensitive information about UK police officers on Facebook. Though I winced more than once at the concept of the internet being misconstrued by HoL peers, I was immediately impressed when one Lord stated that a legislative debate in the UK was pointless as the computer servers hosting the data for Facebook were all located in California, USA.

Therein lies the conundrum.

We may think of the internet as an unbridled worldwide information revolution, but as a physical network it is very much subject to the jurisdiction and governance of domestic laws. However, as data flows from jurisdiction to jurisdiction, there exists the possibility of unknowingly breaking the law of a particular country merely by sending an email via Google.

Consider the Turkish Penal Code Article 301 that has been used repeatedly against any persons suggesting that Turkey’s killing of 30,000 Kurds and more than a million Armenians was a genocide. As such, academic historians, sociologists and lawyers have been banned from Turkey for making reference to the event as a genocide. If I send my genocide conference footage via YouTube to a colleague in Ankara, and that video is routed through a server in Turkey, my next trip to Istanbul may be considerably longer than I may have planned. (The maximum sentence under this law is four years.) Other European countries have similar laws (Italy, Poland, Spain, Germany and Denmark) and collectively there have been over 550 convictions. I may not have intended to cause ‘public denigration’ in any of those nations, but if my communication were relayed through these jurisdictions, my actions may have contravened these laws.

As a general operating principle when using the internet, consider where you are sending your information as much as you might consider what and to whom you are sending material.

What do you consider to be private?

There is an irony to groups like WikiLeaks (who provide an outlet for leaking information) and Anonymous (a group who obtains digital information) in that they actually take advantage of an overwhelming general ignorance towards digital security and utilise it to impose their views as to what the internet should be. I’m sure both started out with the best of intentions, but it would be remiss to not consider the rather large Robin Hood complex that allows each to commit lesser crimes supposedly to prevent greater crimes. (It should be noted that in certain narrowly construed circumstances, this is a legitimate defence at law – the so-called choice-of-evils or general defence of necessity.)

So let us ask the question: what is greater crime prevented? In the context of the United States, most of the legal debate surrounds the Fourth Amendment that protects citizens against unreasonable searches by the government. Just over a year ago, the US Supreme Court declined to hear a case (Klayman v Obama) after a federal court justice had ruled that the NSA’s surveillance programme may infringe on the constitutional right. Other courts have come to different conclusions, and as such the question remains open.

What is essential to understand is the nature of such surveillance – the likes of WikiLeaks and Snowden are preoccupied by the state’s ability to collect information on its citizens. What is rarely talked about however is how much information is voluntarily made available by people using the internet. Between 2008 and 2014, Facebook saw the number of subscribers go from 100 million to 1.4 billion users – with most everybody providing a lot of personal data on a day-to-day basis.

Statistic: Number of monthly active Facebook users worldwide as of 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

As for the 140-character medium of Twitter, their user base grew from 30 million in 2010 to 288 million in 2014 (that’s more users than the US population over 15 years old).

Statistic: Number of monthly active Twitter users worldwide from 1st quarter 2010 to 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

All you need to do is to check your feed from either of these services to see your friends and acquaintances posting photographs and comments about events that would have previously remained private. Despite Facebook and Twitter offering varying degrees of protection and privacy, most users are either not aware of these tools, not able to locate them in the interface, or not bothered about what they post. The rise in popularity of people who have massive numbers of followers on Twitter virtually encourages others to open themselves up to the voyeurism of the masses. The ‘next big thing’ is usually touted as being found in social media. The most infamous of unfortunate Canadian exports, Justin Bieber, was discovered on the video-sharing site YouTube at the age of 13 – an age that breaches the terms and conditions (‘T&C’) for YouTube’s usage. (Section 2.3 of the Terms of Service)

It has been the subject of many jokes that nobody has ever truly read the T&C for Apple’s iTunes. Eddie Izzard put it beautifully, “Nobody in the universe has ever read the terms and conditions…”

Despite our collective disdain for anything involving fine print, almost everybody using services on the internet have at some point just clicked ‘I have read and agree with the Terms and Conditions’ and considered the act an annoyance. Consumption of internet services is the very nature of the internet in the first place: it is an information provider and receiver, whether or not that information is true, public, private, salacious, provocative, or even illegal. We are so dependent on this service, it has changed the nature of human interaction irreversibly. Without concern, we post information about ourselves to the internet and then become concerned when strangers come to posses this information. (Ask anybody who has had somebody they met in 2012 reference that trip you took in 2004 in an over familiar way.)

Yet, the numbers of people signing up to social media and moving their memories and experiences online is ever-increasing. Most companies now conduct due diligence searches of employees, background searches of this ‘open information’ for clients, and require contract clauses referencing social media usage policies. All done in an effort to minimise the potential of embarrassing public spectacles, typically reinforced after similar PR disasters for others making the headlines.

It is this dependence on being socially connected with our on-line lives that makes programmes like the NSA’s PRISM both economically and practically feasible – we’re putting it out there, so why shouldn’t the government read what we’ve given freely?

Illegal Interference: When state surveillance goes beyond open-source collection

Certain information is collected by states that the average civilian has no access to – the NSA was collecting the meta-data (an unfortunately vague term for what it represents) of calls made by US citizens. What does the meta-data represent? Put simply, it means the number you call and the duration of the call. In some instances, intelligence agencies can obtain the name of the person or company you call. It should be stressed that the content of the call (the conversation itself) still requires a warrant for authorities to eavesdrop on the call.

However, a recent article regarding the FBI’s usage of a cell intercepting technology called StingRay has been made public after the organisation EPIC (Electronic Privacy Information Center) successfully obtained a FOIA disclosure on its usage, not just by federal authorities, but also local police services. What was concerning was the systematic support that the FBI provided local law enforcement in resisting disclosure of the technology – even going as far as to drop criminal charges rather that have this tool exposed for public scrutiny.

judge_with_robe_1600_clr_12812Where law enforcement circumvents the legal requirements of obtaining warrants (and thus having judicial oversight and accountability for ‘reasonable belief’), such procedural failures result in increased miscarriages of justice. Mere suspicion without reason is insufficient in most democracies to permit such intrusion into our private lives (e.g., listening in on conversations on the telephone, intercepting our communications). However, one must draw a distinction between law enforcement (in the USA, this would include the FBI) and their efforts to thwart criminal actions including terrorism, and the efforts of intelligence agencies in their remit to collect information both domestic and foreign in order to provide risk assessments and responses to national security risks.

How does this fit with the why the public feels aggravated (albeit temporarily…) by this intrusion into their online activities? It comes down to what the public expects the internet to be, both in terms of information provider and open means of communication.

Misconceived Expectations: Not-So-Anonymous?

Anonymity, or the perception that one is anonymous on the internet is more or less a common misconception that people have of their activities online. In fact, in order to access the internet in a manner that may conceal your identity, most people do not even know the first steps. There are tools out there to assist in this, touted to allow users to ‘browse the Web in confidence’ or to circumvent state-based censorship (e.g., the Great Firewall of China, etc.). This may be great if your concern is anybody discovering your love of cute kitten videos or Last Week Tonight’s YouTube postings. However, what if your intentions run significantly darker?

It's what you can't see that gets you...
It’s what you can’t see that gets you…

Most of the internet is obscured from search engines and metacrawlers that index the ‘entirety’ of the visible internet. Consider the metaphor of an iceberg: what you see on the surface cannot prepare you for the enormity of what you cannot see. It is here where criminals, drug dealers, killers-for-hire, terrorists, and their ilk come to ply their trade.

Earlier this year (2015.02.04), Ross Ulbricht, the founder of the Silk Road website – a sort of eBay for crime – was convicted on seven charges, including money laundering. Reflecting on the conviction, the Canadian CBC Radio show The Current interviewed Alex Winter (the director of an upcoming documentary film about Silk Road), as well as Ulbricht’s mother Lyn.

What struck me was the insistence by Lyn Ulbricht that “it is impossible to prove somebody’s identity online”. Ask anybody who works in forensic I.C.T. (I.T.) services, and you will quickly be dispelled of this popular myth. We all leave a digital footprint – it is only the degree of perseverence by an investigator that determines whether you remain anonymous or not. A number of countries are now introducing legislation to aide in combating on-line trolling and stalking, both typically being characterised as criminal harassment in nature. Most local police forces now have in-house experts in forensic I.T., and most regional/national police forces have dedicated task force units to deal with the digital side of crime.

To reiterate: none of us are truly anonymous on-line. Just because you’re holed up in your house in your bathrobe alone does not mean somebody somewhere can’t see what you’re doing, or trace your rants back to the very device you’re using right now.

Time for the Tin Foil Hats? Not quite…

The first step to really being safe on the internet is to understand what it is. Much like most of the modern world, the science behind how the internet works has taken on mythological attributes in place of insisting on its users actually understanding the technology. We do so only at our peril.

Secondly, though it may sound worse than a root canal at the dentist’s office, try reading the terms and conditions, as well as the privacy policies of the websites you use. Most of the populist bleatings of privacy infringement are reduced to a low din upon being informed that consent to disclose information was given at the time the aggrieved party joined the website. Pleading ignorance of such a consent is difficult: why do you think you had to tick the box declaring that you had actually read the T’s & C’s?

Finally, on the overall concern that the government is peeking at your ‘dick picks’ (you’re wishing you watched the LWT Interview at the beginning of this post now…), it’s extremely to remember something important: don’t do anything on-line you wouldn’t consider doing ‘IRL’ (in real life). Why? The internet is the real world, with real people and real consequences. Here are a couple of videos that make the point:

But the government spooks shouldn’t be snooping at photos of my junk! Indeed. Photos of ‘your junk’ are unlikely to trigger DEFCON 1, and there is virtually no reason that the CIA or the NSA should even take notice. They should be focussed on the ‘clear and present dangers’ that exist out there in cyberland. However, the digital toolset necessary for those agencies to prevent terrorism or cybercrime is always powerful enough to dip into your snapchats or vines. And, like any other workplace, there are a couple of people who will abuse their positions by keeping tabs on personal connections without cause. For those people, perhaps you should consider a more appropriate career hosting Jeremy Kyle or Jerry Springer-type shows on daytime TV – the responsibility of safeguarding any nation is clearly beyond your abilities.

However, rather than shouting down the government agencies for being efficient at collecting information that you have freely put out there for the world to see, we should all take a step back and consider how much privacy we have given up on-line in a desire to have the most friends or followers. As 1 June 2015 looms around the corner, and is the date on which the US Congress & President need to renew the PATRIOT Act (where most of the surveillance authority comes from), I welcome a reasoned debate on a point-for-point review of those powers. It is a balance that we must strike: not too much government surveillance, but also not such blind exposure of our personal lives. The government cannot invade your privacy at will, they require authority to do so (judicial or legislative). But you better believe what information you give away freely is infinitely harder to argue later should have remained private.

I’m off to go re-read the iTunes T’s and C’s for gazillionth time… they probably just inserted a comma, but that could make all the difference in the world.

iTunes Conditions have changed. Please review our new Terms and Conditions for Use before continuing...
iTunes Conditions have changed. Please review our new Terms and Conditions for Use before continuing…