Terrorism and the Proportionality of Internet Surveillance
| Author | Douwe Korff,Ian Brown |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| DOI | http://doi.org/10.1177/1477370808100541 |
| Subject Matter | Articles |
Terrorism and the Proportionality of
Internet Surveillance
Ian Brown
University of Oxford, UK
Douwe Korff
London Metropolitan University, UK
ABSTRACT
As the Internet has become a mainstream communications mechanism, law
enforcement and intelligence agencies have developed new surveillance capabil-
ities and been given new legal powers to monitor its users. These capabilities
have been particularly targeted toward terrorism suspects and organizations
that have been observed using the Internet for communication, propaganda,
research, planning, publicity, fundraising and creating a distributed sense of com-
munity. Policing has become increasingly pre-emptive, with a range of activities
criminalized as ‘supporting’ or ‘apologizing for’ terrorism. The privacy and non-
discrimination rights that are core to the European legal framework are being
challenged by the increased surveillance and profiling of terrorism suspects. We
argue that their disproportionate nature is problematic for democracy and the
rule of law, and will lead to practical difficulties for cross-border cooperation
between law enforcement agencies.
KEY WORDS
Correspondence / Electronic Communications / Human Rights / Privacy /
Surveillance.
Introduction
Over the last 15 years the Internet has developed from a specialist network
of academic researchers into a mainstream communications mechanism.
Around 60 per cent of the UK population are now regular Internet users,
most commonly for email and Web browsing (Dutton and Helsper 2007).
Volume 6 (2): 119–134: 1477-3708
DOI: 10.1177/1477370808100541
Copyright © 2009 European Society of
Criminology and SAGE Publications
Los Angeles, London, New Delhi, Singapore and Washington DC
www.sagepublications.com
ARTICLES
120 European Journal of Criminology 6(2)
As might be expected of any such widespread technology, law enforce-
ment agencies have paid increasing attention to the use of the Internet for
criminal purposes, especially by terrorism suspects. Terrorist groups such
as Hezbollah have been observed using the Internet for communication,
propaganda, research, planning, publicity, fundraising and creating a
distributed sense of community. Email and Web discussion forums have
been used to plan operations, while websites are commonly used to bypass
media editorial controls and communicate directly with groups’ supporters
and potential recruits (Bird 2006; Labi 2006).
In response to this activity, policing and intelligence agencies have
developed new capabilities and successfully lobbied for new legal powers to
put Internet users under surveillance. These have included requirements for
Internet service providers (ISPs) to facilitate wiretaps and to store information
about their customers’ communications and Web browsing activities (Brown
and Korff 2004; Schjolberg 2007). However, these new powers have caused
significant concern that the private lives of Internet users with no connection
to terrorism or serious crime are being disproportionately invaded, and are
one reason that UK Information Commissioner Richard Thomas believes
we are ‘sleepwalking into a surveillance society’ (Ford 2004).
The right to privacy relates to the right to respect for private life,
guaranteed by Article 8 of the European Convention on Human Rights
(ECHR), but is also shorthand for a more specific right, usually referred to
in terms of ‘data protection’. This is increasingly recognized as a right sui
generis (e.g. in Article 8 of the EU Charter on Fundamental Rights) and is
not only concerned with protecting individuals from intrusions into their
privacy or private life, but more broadly against the improper collecting,
storing, sharing and use of their data. It addresses the central issue in the
‘information society’ of the extent of control by ‘data controllers’ over
individuals – tellingly referred to as ‘data subjects’ – through possession of
their data.
The proportionality of Internet surveillance touches on fundamental
values of a democratic society, raising serious constitutional questions in
many states. However, it relates to a phenomenon – terrorism – in response
to which states feel obliged to take the most drastic action, if needs be in
derogation of their usual human rights obligations applicable in ‘ordinary’
times. Yet terrorism (however defined) is not a passing phenomenon. While
wars or other public emergencies generally have a more-or-less clear end
(even if this can be much-delayed), there is no end in sight in the fight
against terrorism. Even at the national level, anti-terrorism legislation tends
to become semi-permanent (Walker and Akdeniz 2003).
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