Abstract
The tussle to ensure essential liberty is not eroded by catch-all “national security” measures is ongoing, argues
Since 9/11, liberal democracies have increasingly implemented laws in the name of protecting the population against the threat of terrorism, but which have simultaneously undermined the rights of all citizens. From the Patriot Act, passed just 45 days after the attacks on the Twin Towers in New York in 2001, and which vastly expanded the ability of the US government to spy on ordinary citizens, to the recently approved Investigatory Powers Act in the UK, governments worldwide are engaged in a seemingly never-ending expansion of state power.
As is evidenced in recent proposals by the UK Law Commission, and in the conversation surrounding the UK general election after the London and Manchester attacks, security, rather than the protection of fundamental values and freedoms, is rapidly becoming the global goal. The Law Commission, which undertook a review of the country’s outmoded spying laws, suggested that the current law, which protects the “safety or interests of the state”, should be replaced with the term “national security”.
Governments justify these fresh incursions into the lives of law-abiding individuals by arguing there are new terrorist threats, and, in particular, that the internet is being used to spread and enable terrorism.
This is where the nebulous formulation “national security” becomes highly problematic, as the definition of what constitutes a threat to such security grows ever wider.
Recent attempts by governments to deal with content online are a case in point.
Take the example of Pakistan’s Prevention of Electronic Crimes Act, passed last year as part of a 20-point National Action Plan against terrorism that Prime Minister Nawaz Sharif announced, after an attack on a school in Peshawar left 141 people dead.
The cyber crimes bill is meant to limit the amount of hate speech online and protect internet users against malicious cybercrimes. A lack of clarity about what speech is, and is not, protected means that government critics and other dissenters have been silenced as a result of the law; few effective moves have yet been made against real malicious threats. For example, as former Index on Censorship Freedom of Expression Award winners Bolo Bhi pointed out, the Khabaristan Times, a satirical media organisation, was recently blocked online under Section 38 of PECA, which allows the government to remove and censor any “objectionable content”.
Criminalisation of political criticism and expression and a tightening environment for journalists are all hallmarks of attempts by government to tackle extremism through measures aimed at restricting speech in the name of national security.
In Turkey, hundreds of journalists have been arrested and jailed in the wake of the failed 2016 coup, many of them because of reporting that is critical of the government, but it has also been alleged that they have damaged the “security of the state”. World-renowned cartoonist Musa Kart, known for his satirical lampooning of President Recep Tayyip Erdogan, is one of those currently detained and faces 29 years in jail if convicted.
In the USA, as our recent report on US media freedom showed (see p. 112), many journalists have found themselves detained at the US border and asked to hand over equipment and notes, threatening the anonymity and safety of sources – a key tenet of a free press. Searches of all travellers’ phones by border agents grew an astonishing fivefold in 2016. In February 2017 alone, some 5,000 devices were searched, as many as in all of 2015.
Journalists (and indeed any US citizen) can legally have their phones and electronic equipment searched at the border without customs officers or Homeland Security officials having to prove any suspicion of wrongdoing. In one incident, Le Monde journalist Kim Badawi was held at Miami International Airport for 10 hours and questioned by Customs and Border Protection agents about his passport stamps for Middle Eastern countries, his political views and religious affiliation. His baggage was searched and he was forced to surrender the password of his phone so agents could go through his contacts, photos and messages, including confidential ones from Syrian refugees.
Increasingly, governments are also devolving responsibility for determining what constitutes unacceptable content to private companies.
Draft law approved by the German cabinet in April, for example, threatens fines on companies that fail to take down content that might contravene some 24 current provisions of the German Criminal Code, including offences as varied as “defamation of the state and its symbols”, “anti-constitutional defamation of constitutional organs” and “defamation of religions, religious and ideological associations”.
The measure effectively outsources decisions on the balance between freedom of expression and other legally protected rights to private companies and so threatens open and democratic discourse at the heart of one of the world’s largest, most stable democracies.
The idea that the threats we face are in some way more acute than those that have gone before – and therefore necessitate a restriction of hard-won freedoms – is not new.
“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety,” argued US founding father Benjamin Franklin, showing the conflict goes back centuries.
Asked what he felt could most usefully be done to protect journalists in the current climate, Stefan Stojanovic, editor of Slovenian investigative news organisation KRIK, said he would reverse the tendency to prioritise national security over civil liberty.
Franklin would have agreed.
