Banalisation of communications surveillance in the debate on Finnish intelligence legislation

Abstract

A case study of both public and non-public debate on civil and military intelligence laws in Finland examined policy documents, news coverage, and interviews with key elite stakeholders to reveal various political and media actors’ connections with the banalisation of communications surveillance. The analysis suggests that debate on Finnish intelligence legislation has been conditioned by governmentalities that have anchored communications surveillance as (1) control of the population for preventing or limiting hybrid threats, (2) care in legitimating trust in the authorities and their oversight, and (3) authorities’ empowerment in control over confidential communication and freedom of the press. Empirical analysis shed light also on how new surveillance powers become difficult to challenge once policymakers and state authorities have obtained consent for communications surveillance. Once banalised in policymaking and mediated debate on civil and military intelligence, that surveillance becomes a commonplace, taken-for-granted, banal aspect of everyday life.

Introduction

In 2013, National Security Agency (NSA) contractor Edward Snowden's revelations about intelligence agencies’ capacity to monitor everything and everyone on the Internet wrought serious disruption to state surveillance: policy processes aimed at bringing national intelligence authorities back into check commenced, particularly in countries that Snowden's leaks put in the limelight. Yet heated debate in the United States after these disclosures (e.g. Russell and Waisbord, 2017) did not prevent the 2015 ratification of the Freedom Act, predominantly a modified version of the USA PATRIOT Act, the infamous legal arrangement prepared soon after the 9/11 terrorist attacks. The same year, in the aftermath of the Charlie Hebdo shooting in Paris, France implemented a new Intelligence Act to secure a legal basis for communications surveillance (e.g. Baisnée and Nicolas, 2017; Tréguer, 2017). In the United Kingdom, meanwhile, the Investigatory Powers Act, also known as the Snooper's Charter, entered force in 2016 (e.g. Hintz and Brown, 2017; Hintz and Dencik, 2016).

The Snowden disclosures have not led to elimination or even limitation of state-led communications surveillance (e.g. Dencik and Cable, 2017; Steiger et al., 2017). Instead, many countries in Europe have strengthened the surveillance powers and operation capabilities of their intelligence agencies, with The Guardian concluding that the new intelligence legislation in the United Kingdom ‘extends the reach of state surveillance even further’ (Travis, 2016). Although transparency of intelligence authorities’ actions has expanded with the new surveillance powers, Hintz and Brown (2017: 797) note that state mandates for communications surveillance have grown irrespective of the fact that most public contributions and commission findings that preceded the relevant legislation were critical of the proposed legal framework for communications surveillance.

In Finland, the connections articulated between the NSA revelations and intelligence authorities have been rather thin and implicit. With those revelations not presenting any role of Finland, the associated events were framed as foreign news. Much of the ensuing news coverage was critical of communications surveillance and questioned its legitimacy. Also, Finland's ‘post-Snowden’ reporting tended to lack normalisation of surveillance, seen elsewhere, wherein communications surveillance was justified in the name of national security (see Russell and Waisbord, 2017; Wahl-Jorgensen and Jones, 2017; Wahl-Jorgensen et al., 2017a, 2017b).

Previous studies of the NSA revelations have focused primarily on surveillance powers in a liberal system. This article, in contrast, examines the debate on intelligence laws in Finland in aims of broadening the scope of empirically grounded analysis (e.g. Kunelius et al., 2017; see also Tiainen, 2020). The case study addresses a Nordic country that, situated between Scandinavia and Russia, is becoming the new frontline for the NATO alliance. Finland also was among the last countries in the region to draft pro-intelligence laws, whereas in Sweden the law on the National Defence Radio Establishment (Försvarets radioanstalt, FRA) entered force after an impassioned debate in 2009. While discussion of state-led communications intelligence was spurred also among the Finnish political elite at that time, it did not percolate into public arenas until 2017's bills for intelligence laws emerged.

This article analyses the debate on the intelligence laws that the government has pursued in three of its key branches (the ministries of justice, defence, and interior affairs) and in parliamentary working groups and committees. Our case study was informed by a systematic analysis of (1) strategic-policy documents and stakeholder statements; (2) interviews with key stakeholders; and (3) news coverage of the legislation in Finland's leading newspaper, Helsingin Sanomat (HS). Building on triangulation from these sources of research data, the article addresses both the public and the non-public debate on Finnish intelligence legislation to lay bare the governmentalities that have banalised communications surveillance. It asks how policymaking and mediated debate on civil and military intelligence have secured the public legitimacy of Finnish authorities’ new surveillance powers and how communications surveillance has grown banalised in the debate on Finland's civil and military intelligence.

According to the scholars who introduced the notion of banalisation to surveillance studies (see Bellanova et al., 2010):

By ‘banalisation’, we mean making surveillance commonplace (banal), so that […] we [as a society] become acclimatised or accustomed to surveillance in general, even if we [as a society] are not always aware of […] the increasing pervasiveness of surveillance, right down to the level of the individual. (Wright et al., 2010: 343)

Banalisation of surveillance renders it increasingly difficult to imagine mass communication without all-pervading and automatic capture of private data. On the shores of day-to-day life, previously discrete data flows are sources of ‘behavioural surplus’ (Zuboff, 2019), which circulates not only to media outlets and advertisers but also to other institutions, varied interest groups, and state authorities – all with an interest in ‘conducting the conduct’ of people (i.e. governing them). Rather than treat it as a trivial notion, we adopt the concept of banality for a critical vantage point on the banalisation of communications surveillance, as it aids in grasping ‘what surveillance is today’. ¹

A governmentality approach to banalisation of surveillance

The introduction of ‘banalisation’ with specific reference to surveillance was anchored in a dictionary of the French language (Le Nouveau Petit Robert) that, offering four definitions, illustrates the multiple meanings of the word (see Robert, 2002: 217; for further discussion, in French, see Bellanova et al., 2010: 46–54). Providing valuable grounding, these can be outlined thus:

Action to make or become commonplace or ordinary, to enter customs and conventions (norms)

Removal of all distinctive marks (for instance, on a police car)

Action to bring an administration (e.g. edifice) under state governance

Reversible working of a railway track that can be used for both directions (via a signalling system)

Etymologically, the word has the same source as ‘banished’ and ‘banned’, connected with a feudal lord's sovereign power over serfs and his territory, which builds on ‘the [sovereign's] right to take life or let live’ (Foucault, 2003: 241). In states of exception, sovereign power has indeed augmented ‘the evils of banality’ (see Arendt, 1963). The legitimising acts of highly ranked Nazi bureaucrat Adolf Eichmann form a case in point, the evils of concentration camps, rendered banal, were condemned as a crime against humanity only under a new power, in the Nuremberg trials. Likewise, the ‘bare life’ of the banished in today's detention camps (e.g. in Guantánamo Bay) is characterised by a ban by the sovereign, who keeps the banished under surveillance within a specific territory, where the subjects operate under various disciplinary mechanisms (see Agamben, 1998; Foucault, 1995).

While such discussion offers a significant point of departure, the banalisation of surveillance brings in forms of power other than the sovereign. After the French Revolution, a new right or power emerged: that ‘to make live and to let die’ (Foucault, 2003: 241). Rather than being repressive in the mould of sovereign power built on disciplinary mechanisms, biopower is productive in ‘generating forces, making them grow, and ordering them’ (Foucault, 1978: 136). At stake with the application of biopower, which ‘exerts a positive influence on life, that endeavors to administer, optimize, and multiply [human life], subjecting it to precise controls and comprehensive regulations’, is not oversight but ‘the existence of population’ (Foucault, 1978: 137).

In Security, Territory, Population, Foucault calls for yet another form of power, termed ‘biopolitics of the population’ or ‘governmentality’, which is ‘formed by institutions, procedures, analyses and reflections, calculations, and tactics that allow the exercise of this very specific, albeit very complex, power’ (2004: 139, 144). Here, Foucault traces the genealogy of governmentality to the Christian pastorate, specifically the pastoral power of caring. From the early days of Christianity to the Middle Ages, the target of pastoral power was a specific territory, with its inhabitants, and that power was embodied in the figure of the pastor, a Good Shepherd, who was supposed to look after his ‘flock’ and every individual sheep in it. In nation-states, the role of the shepherd was allocated to the king, and then, to the lawmakers, which turned politicians into shepherds of the nation (2004: 187–188; 191). Pastoral power also called for knowledge (savoir) and constant monitoring of the flock. Since the pastor must take charge of the security, guidance, and teaching of his flock, he must keep a constant eye ‘on all and on each’, omnes et singulatim (2004: 173).

In a ‘datafied welfare state’ (Dencik and Kaun, 2020), an individualising form of pastoral power builds on the monitoring of people in everyday settings. While disciplinary and normative mechanisms of governance are intended for control of the population, ‘security apparatuses’ assess possible threats and probabilities of events from a distance. In the neoliberal ‘social-democratic regime’ of a Nordic welfare state, the social-security system is among the most distinctive security apparatuses, one that relies heavily on automated decision-making and on information and communications technology. From the perspective of security apparatuses, the ‘object of empowerment is [instead] to act upon another's interests […] by getting them to act in their own interest’ (Cruikshank, 1999: 68–9, emphasis added). On the terms of this neoliberal governmentality, then, the security apparatuses govern people's interests in so banal a manner that communications surveillance may lose its specificity and become accepted as non-problematic oversight without interfering immediately in people's life. The pastoral power of care can also manifest itself as exercise of sovereign power for those who rely on the social-security system, in what exemplifies ‘reversible working’ of banalisation of communications surveillance.

The empirical analysis below draws methodologically from the Foucauldian examination of governmentality and from our research on the ‘mundane mechanisms of governance’, in which the latter framework is discussed methodologically in relation to banal surveillance through some preliminary findings from the case study examined here (Lehmuskallio et al., 2020). Informed by our empirical case study, the detailed presentation below represents the first scholarly attempt to address the debate on Finnish intelligence laws in its entirety in relation to banalisation in policymaking and to the mediated debate on communications surveillance.

The research data and methods

For analysing the public and non-public debate on Finnish intelligence laws, we began by charting policy documents and stakeholder statements from publicly available electronic databases to identify key stakeholders and the major shifts in the discussion of the laws in question. This entailed coding the policy measures related to Finnish civil and military intelligence laws for their date, name, description, and main source(s). Next, we collected news on communications surveillance and intelligence laws in HS, which is the daily newspaper with the widest reach in the Nordic region (its average daily circulation was 339,437 in 2019). Helsingin Sanomat demonstrates liberal and pro-NATO political inclinations, and it contributed to the discussion of Finnish intelligence legislation more than any other media entity in Finland. We collected the items from HS's digital archive with the search terms ‘tiedustelulaki’ (intelligence law) and ‘verkkotiedustelu’ (communications intelligence) for the span between the disclosures of June 2013 and the intelligence laws’ entry into force, in June 2019 (330 news pieces in total). The news material was coded for its date, the headline, relevance, its authorship, source details, and the main news content, to support categorisation of relevant themes, key events, and relationships between stakeholders.

Our final step was to conduct 15 semi-structured interviews, lasting 1–1.5 h each, with key actors who were among the policy elite having privileged access to the information involved in the legislation when the government reviewed and produced the bills for parliamentary discussion. The aim behind these interviews was to gain access to non-public debate on intelligence legislation, with questions addressing both the legislation process itself and other actors involved in policymaking. This set of interviews covered public- and private-sector entities within the government, public agencies, NGOs, the ICT domain, and intelligence services. The interviewees, many of whom possessed an academic background and competence in policymaking, were anonymised in preparation for coding the transcripts by means of thematic analysis.

Systematic analysis of policy documents, news items, and interviews pinpointed four key actors participating in policymaking and mediated debate on intelligence laws. The first is journalistic media: journalists participating in the mediated debate and pro­ducing news items that cite other media and actors in civil society – NGOs, academics, the technology industry, policy experts, and other stakeholders – who participated in a debate on communications intelligence. The research material drew the analytical gaze also to the government and politicians, who expressed their views in interviews, statements, decisions, rules, and regulations. The final set of actors consists of state authorities, including the president and both high-ranked military officials and security authorities in the military and law-enforcement sector. These participated the least in a public debate but exercised the most power to exert an influence on policymaking.

In conjunction with the analysis, the following timeline summarises the main shifts in policymaking and mediated debate on Finnish intelligence legislation:

The preparation phase (2013–2015): After the NSA revelations, media revealed (on 31 October 2013) that Sweden's intelligence authority had informed Finland's government of the Ministry of Foreign Affairs having been hacked. A working group began work to prepare a ‘data retention law’ (on 13 December 2013), and stakeholder statements criticised the law (on 15 February 2014). The group produced not a bill but a government report (on 14 January 2015) recommending intelligence legislation to the government.

The drafting phase (2015–2017): The new government initiated the drafting process for intelligence laws in three key ministries (on 1 October 2015). Hearing the Schrems case, the European Court of Justice ruled against mass surveillance (on 6 October 2015), not long before the refugee crisis in Europe and the terrorist attacks in Paris (of 13 November 2015). The Ministry of Justice proposed a Constitutional amendment (on 11 October 2016), and working groups published draft bills for civil and military intelligence laws (on 19 April 2017).

The review phase (2017–2019): A ‘terrorist’ stabbing occurred in Turku (on 18 August 2017). The Defence Forces filed a criminal complaint over journalistic disclosure of leaked documents on military intelligence in ‘HS-gate’ (on 16 December 2017). After the parliamentary debate (on 20 February 2018), Parliament approved the Constitutional amendment (on 3 October 2018). The civil and military intelligence laws, however, were returned to the parliamentary committee (on 13 February 2019), after which Parliament approved them without a vote (on 11 March 2019).

Results

Systematic analysis of the public and non-public debate on Finnish intelligence laws via our methodological framework led us to identify the following governmental aspects of anchoring communications surveillance as banal: (1) control of the population in connection with preventing or limiting hybrid threats, (2) articulations of care in legitimating trust in the authorities and their oversight, and (3) the authorities’ empowerment in controlling confidential communication and press freedom. We consider each, in turn, before discussing their combined influence as illuminated by the empirical analysis.

Control of the population for preventing or limiting hybrid threats

Finland's public debate on foreign and communications surveillance was sparked by a cyber-attack: a newscast on a commercial television channel run at the time by Bonnier Broadcasting (MTV3, 2013) reported that the Swedish intelligence authority, the FRA, had informed the Finnish government that its foreign ministry had been hacked by ‘an unidentified and unfriendly foreign actor’. The vulnerability brought cyberthreats under discussion, and it constituted an event that was deemed news­worthy and came to public attention through the media. The government's inability to detect phishing directed at its networks and its incapacity for self-protection from a cyber-attack became a scoop, forming a framework for public statements about communications surveillance.

After the news broke about the ministry suffering intrusion, Helsingin Sanomat wrote that the government planned to start preparing a ‘snooping act for Finnish civil and military intelligence’ (Huhta, 2013). In civil society, the critical front was extensive, stretching from trade unions and employer organisations to NGOs, telecom operators, and network providers. Critical stakeholder statements questioned intelligence legislation by pointing out potential harmful effects on cybersecurity. Stake­holders advocated reassessing the proposed legislation's effects on a rapidly digitalising communications environment, with the chair of the national network-operators’ association stating: ‘It is nonsense that the law would prevent a cyber-attack on the ministry for foreign affairs or distributed denials of services [DDoS]. Such attacks would be prevented only by improving information security and not by weakening it by unnecessary intelligence law’ (Sajari, 2014).

After a preliminary round of political bargaining among ministries, officials, and key stakeholders, in 2015 the data-retention-law working group submitted its report Guidelines for Developing Finnish Legislation on Conducting Intelligence (Finnish Government, 2015a) to the Ministry of Defence, suggesting legislation on foreign and communications intelligence while presenting the dissenting opinion of the Ministry of Transport and Communications. One fact demonstrating a split within the government in the preparation phase was the latter ministry's refusal to accept the term ‘communications intelligence’ for the policy proposal and its insistence on speaking of ‘surveillance’ instead. The ministry's director even identified a colonel involved in military intelligence as a troll on Twitter, after which a member of Parliament who had participated in the policymaking tweeted: ‘(1) Finally! This topic has received its fair share of attention. (2) This is the worst clash between ministries that I have seen in public’ (Kasvi, 2015).

The public dispute over whether communications intelligence constitutes mass surveillance produced conflict among Finland's policy elite. In the news, a professor of international law argued that the anticipated interception cuts to the core of privacy and that the 2015 EU court decision on the Schrems case should guide policymaking behind Finnish intelligence laws (Sajari, 2015). In the same news item, the new minister of transport and communications argued that the court decision does not imply that communications intelligence is prohibited; rather, Finland's lawmaking process for civil and military intelligence merely needed to be refined in light of the new rulings. In so doing, the lawmaker normalised communications surveillance as intrinsic to the law, while legal experts attempted to resist the banalisation of surveillance in public.

As an expert on security threats stated in summarising the need for new surveillance powers in non-public debate, among ‘the key things for avoiding a catastrophe is preventive work, where the role of intelligence services is quite central’ (interview, research director, 2 February 2018). An expert in international law pointed out, in contrast, that allowing interference in confidential communications without an assumed criminal charge would represent a major shift in investigative powers: ‘In Finland, traditionally, powers in criminal investigation start when there is a crime and a person who is a suspect. This [power] has shifted to concrete crime prevention to stop crimes even before they are committed’ (interview, academic, 25 February 2018).

Care in legitimating trust in the authorities and their oversight

In 2015, Finland's new centre-right government made implicit reference to civil and military intelligence laws and listed ‘internal and external security’ among the central policy issues to be resolved in its strategic programme (Finnish Government, 2015b). These laws exemplified policy elites’ interest in taking care of the safety of the population as pastors of the nation by means of communications intelligence. The Ministry of Defence dedicated itself to drafting a law on military intelligence so that the defence forces would hold electronic surveillance powers. The Ministry of the Interior meanwhile focused on civil intelligence, though the police were already empowered to intercept communication under the Coercive Measures Act. Finally, the Ministry of Justice looked into revising the Constitution and preparing a law on oversight.

The objective of the respective working groups was to provide a legal basis for intelligence laws, since such laws did not yet exist in Finland. The main task was to solve the dilemma pertaining to bulk collection of metadata and to allowing targeted interception of private communication. The ministries noted, for instance, that international law on human rights prohibited ‘arbitrary’ and ‘unlawful’ interference with privacy (per Article 17 of the ICCPR, cited by the Finnish Government, 2017b: 67–8). With regard to communications intelligence, however, the interference may be relatively extensive if taking place within the limits of the European Convention on Human Rights. From the critical perspective of a legal representative, ‘the task of the EU Court of Human Rights is only to assess whether the ECHR is respected, which mandates the Member States to use discretion […]. If intelligence works in roughly the manner ratified, [communications] surveillance is usually also permitted’ (interview, legal expert, 10 January 2018).

In the drafting phase, legislators were able to portray communications intelligence as compliant with international conventions, which made the law much more difficult to resist. In the policymaking, both routine corporatist consensus politics and hearing of several stakeholders contributed further to consensus (Vesa et al., 2018). This consent brought another layer to the banalisation of communications surveillance as concerns over mass surveillance were removed from public and non-public discussion. As the compromise unfolded, state authorities’ interests in pastoral care and safeguarding national security gradually came to overshadow the resistance. According to a civil intelligence authority,

[n]o-one has changed position entirely, but compromises have been made along the way. The time of the first working group was more critical, when there were doubts about the motives of the security authorities and their powers. Then, when we moved to the second phase [drafting phase], we began to talk about the rationale for the law, why the law is necessary. It is more constructive to understand why the law is necessary and then reflect on the [surveillance] powers. (Interview, civil intelligence authority, 21 December 2017)

After a year's routine corporatist consensus politics, the Ministry of Justice proposed an amendment to the Constitution. Adjusting Section 10, on the right to privacy (Constitution of Finland, 2000), would permit limiting the confidentiality of private communications, provided that a serious national-security threat is assumed. Half a year later, in April 2017, the ministries of defence and the interior introduced their detailed proposals for the corresponding government bills. According to the proposals, weighing in at nearly a thousand pages, the bills’ purpose was to provide legal means whereby intelligence authorities may intercept information about serious threats to national security in support of the decision-making of the highest-ranking state authorities through bringing communication cables under state surveillance. The latter is yet another definition for banalisation of communications surveillance.

Our analysis of policy documents identified three proposals as forming the core of the bills (see Finnish Government, 2017a, 2017b, 2017c):

Broader scope for security authorities’ screening of hazards – a licence to spy abroad and extended rights to intercept metadata from the targeted communication cables.

Establishment of a system of democratic oversight – a designated data ombudsman and regulatory supervision of intelligence activities.

Urgent amendment to the Constitution – access to confidential communications in cases of serious threat to national security.

Since Finland's communications intelligence would build on targeting and intercepting existing data from communication cables, destroying caches of irrelevant data, and exchanging relevant data with intelligence authorities, after authorisation its ultimate foundations would consist of trust in the security authorities (e.g. the police and military intelligence), and Finland held the EU's strongest trust in these entities at the time. A veteran of Finnish politics identified this rather banal trust in the security authorities to serve as pastors of the nation as having grown over time: ‘Finnish security culture has never collapsed; its tradition has been strong’. The government proposed to handle the remaining trust issues via parliamentary oversight: ‘It is the duty of a member of the intelligence-oversight committee [of Parliament] to examine whether what the legislator meant when implementing the law is realised and whether human rights are implemented in a proportionate way but also, from the other direction, that this system works as it should – that is, providing intelligence’ (interview, politician, 13 March 2018). This reasoning illustrates the reversible workings of banalisation of communications surveillance, both legitimating trust in monitoring by the authorities and assuring that the population's safety will be safeguarded.

The authorities’ empowerment in control over confidential communication and press freedom

After lengthy routine corporatist policymaking, the public review took place in the lead-up to Finland's presidential election, just as the intelligence bills were moving forward to the parliamentary discussion. At this juncture, Halminen and Pietiläinen (2017) wrote a news story for HS about military intelligence that was based on leaks of classified information, including images of documents with Top Secret stamps. This caused a minor public scandal, ‘HS-gate’ (see Kortesoja et al., 2019; see also Koivunen and Vuorelma, 2022). Written to raise questions about the new surveillance powers that the government was to give the intelligence authorities, the article emphasised the lack of debate, under a headline declaring that hardly anyone knows what the Defences Forces intelligence research establishment is doing and that the documents received by HS ‘open the mystery’. The journalists identified the matter as important for every citizen because this ‘secret unit would intercept your e-mails’ by rendering confidential communications of everyone with an Internet connection a surveillance target (Halminen and Pietiläinen, 2017).

The news story provoked a rapid response from state authorities. The defence command [Pääesikunta, military headquarters] requested that the national bureau of investigation [Keskusrikospoliisi] investigate whether HS was guilty of exposing a state secret, and the police conducted a search in the home of one journalist involved. At the same time, President Niinistö issued a public statement in which he said: ‘Exposing the content of highly classified documents is a critical security issue and could result in serious damage’ (Office of the President of the Republic, 2017). The defence minister, another politician surnamed Niinistö, tweeted his own warning: ‘From abuse of the freedom of speech there is a short step to lack of patriotism’ (Niinistö, 2017). The official state­ments and social-media posts fuelled indignation at journalistic disclosure (see Kortesoja et al., 2019).

In the press-freedom domain, the question was bound up with not only the matter of publishing top-secret documents but also the right of journalists to obtain leaked information and to make some of the data public without endangering their sources (e.g. Reporters without Borders, 2017). The editor-in-chief of HS gave assurances that the leaked documents had been obtained by legal means. Also, HS pointed out that the process of publishing the leaked material included source criticism and journalistic reflexivity. Moreover, in the intelligence realm, journalists had no official sources at their disposal: all documents on military intelligence were classified, and the officials were bound by secrecy. From the perspective of the journalistic media, then, to classify two-decade-old documents as top secret was ‘a decision made by authorities, which was to be viewed critically’ (Mukka, 2017). Moreover, citizens had not had an opportunity to assess the new surveillance powers in public. Accordingly, the managing editor of HS justified publishing the news piece by reference to transparency, stating that ‘readers need to have sufficient and truthful information about what is happening in society’ (Mäkinen, 2017).

After a few days of media uproar, the Finnish policy elite restored consensus via banal nationalistic references to ‘the Winter War Spirit’ (see Koivunen and Vuorelma, 2022; see also Billig, 1995). A few months later, the parliament demonstrated national unity and loyalty by accepting the amendment of the Constitution as urgent (with 178 in favour and 13 against). After the change in the Constitution, the constitutional-law committee of the parliament issued an opinion on the government bills, stating that, while the bills were ‘generally acceptable’, the members found certain provisions of the proposals to be unconstitutional. According to an external review by constitutional-law experts (Scheinin, 2018), the intelligence laws were not acceptable at all. The bills contained 30 articles (out of a total of 250) with provisions that the experts considered unconstitutional, even though the Constitution itself had already been amended for the purpose of intelligence legislation.

The experts’ challenge to the parliamentary review process provoked yet another banal intervention from state authorities. This time, defence minister Niinistö stated that ‘the parliament must get a grip’ on ‘the constitutional-law Taliban […] who engage in tweeting, among other things’, and who use ‘extra-parliamentary means to influence policymaking’ (Hartikainen, 2019; Niinistö, 2019). Notwithstanding the resistance of a few constitutional-law experts, whom the defence minister portrayed as political terrorists, Parliament passed the intelligence bills into law about a week before the government ended its four-year term in 2019.

Although Finland is among the leading countries in indices for freedom of the press, a few constitutional-law experts appeared to be the only opponents to the policy elite after the HS-gate incident. According to an Internet-rights advocate, this chilling effect on public debate meant a problem for democracy, because ‘[it] is not a healthy social situation if a few professors are the only obstacle in relation to many issues who can look after civil rights and bring up the Constitution in public debate. Civil society, investigative journalism, the parties, et cetera should all have this task’ (interview, activist, 23 November 2017).

Discussion

The banalisation of communications surveillance in the debate on Finnish intelligence laws stemmed from a growing conflict between politics and media outlets in relation to the most shrouded of legal processes, that connected with civil and military intelligence. In the preparation phase, the NSA revelations dominated the debate, while politicians and state authorities remained silent on communications surveillance. The media supplied political bargaining power to those actors in civil society who criticised communications intelligence as mass surveillance. Meanwhile, non-public debate on Finnish intelligence legislation concentrated mainly on ‘routine, everyday [even banal] preparatory consultations and bargaining taking place in policy networks, largely outside media attention’ (Reunanen et al., 2010: 302). In the routine corporatist policymaking, state authorities legitimated communications surveillance as control of the population for preventing or limiting hybrid threats so as to bring Internet and other digital communications under state surveillance.

Then, in the drafting phase, routine corporatist consensus politics contributed to consent for intelligence legislation. While journalists assessed and located struggles for consensus on one hand, they still depended on official sources of information. The associated inability to resist the normalising and legitimating voice of politicians and state authorities as ostensible pastors of the nation assisted the latter actors, alongside other stakeholders, in gaining consent to intelligence legislation via (banal) appeals to care in legitimating trust in the authorities and their oversight. While terms such as ‘digital resignation’ (Draper and Turow, 2019) and ‘surveillance realism’ (Dencik and Cable, 2017) have accurately captured the essence of a shared sense of helplessness and of the erasure of any viable alternatives to communications surveillance, the facet of banal trust in the authorities and their oversight draws attention to consent in a ‘democratic-corporative system’ wherein disagreements have faded and the argument that ‘it is better to have some sort of law rather than not have one at all’ has become widely accepted, thanks to the banalisation of communications surveillance.

In the review phase, few journalists and policy experts challenged the consensus through the journalistic media. As a watchdog, journalistic media can call attention to political tensions and conflicts that routine corporatist policymaking conceals. A mediated public sphere is, hence, a somewhat unpredictable arena for policymakers. When critical voices are not latent and silent, the journalistic media can ‘disturb’ policymaking (e.g. Marcinkowski and Steiner, 2014). This is precisely what ensued when HS's journalistic disclosure of the classified information on military intelligence led to public conflict between state authorities and journalists. The disturbance stirred unprecedented public debate in hybrid media. In the wake of HS-gate, two journalists and their supervisor were charged with treason for revealing top-secret and other classified information to the public, with their case now being under investigation at District Court of Helsinki. The government intervention in the journalistic disclosure led to journalists’ exclusion from the public debate and to the authorities’ empowerment in control over confidential communication and freedom of the press, which further eroded resistance to the banalisation of communications surveillance in both the journalistic media and civil society.

Overall, analysis of the governmentalities in the debate on Finnish intelligence laws shows that consent is difficult to challenge once surveillance has been rendered banal. Should the new powers get challenged, state authorities can exercise regulatory power over journalists and policy experts by casting their voice to the periphery of public debate, thereby exerting a chilling effect on both politics and the media in addition to further imposing confidentiality of communications. On one hand, communications surveillance did enter public debate also in Finland, and state authorities, therefore, needed to defend the new surveillance powers in public, bringing democratic-corporative policymaking and mediated debate on communications intelligence a step closer to the liberal model's ideal. On the other hand, though, routine corporatist consensus politics has maintained its dominance in Finland, shielding policymakers and policymaking itself from public debate, which has echoes in the consensus recently arrived at with regard to NATO. This should be investigated in further research. Moreover, with state authorities having gained new surveillance powers and international intelligence cooperation in response to new uncertainties, surveillance may grow even more banal. This is all the more true if those powers extend to normal circumstances in the manner suggested in the debate on Finland's intelligence laws.