Can Democracies Survive the State of Surveillance?
The Pegasus Project — a collaborative investigation into the NSO Group’s surveillance software coordinated by the Forbidden Stories consortium and Amnesty International — has revealed that over 50,000 phone numbers were under illegal surveillance by various governments around the world. The report has detailed that at least 180 journalists, human rights defenders, academics, businesspersons, lawyers, doctors, union leaders, diplomats, politicians and several heads of state, have been targeted for surveillance by governments using the spyware known as Pegasus.
It has further revealed how the use of targeted surveillance technology by states has threatened individuals’ human rights, violated their right to privacy, and enabled “Big Brother is Watching You”-style Orwellian states all over the world. Therefore, it is worth examining what states hope to achieve by employing surveillance technology, as well as the role democracies should play in limiting uncensored state surveillance.
Pegasus Spyware: How does it work?
In its 2016 article, The New York Times had analyzed the NSO Group’s proposal to governments. The NSO Group prices its “surveillance tools by the number of targets, starting with a flat $500,000 installation fee.” The Group charges government agencies $650,000 to spy on 10 iPhone users; $650,000 for 10 Android users; $500,000 for five BlackBerry users — along with the installation charges.
Pegasus, as NSO claims, captures data from target individuals’ mobile devices who are suspected of being involved in serious crimes and terrorism. However, as it is reported, spyware is brazenly used by governments worldwide to snoop on their civil society. Pegasus infections can be achieved through “zero-click” attacks, which do not require any interaction from the device’s owner. These attacks exploit the so-called “zero-day” vulnerabilities, which are flaws or bugs in a device’s operating system that have not yet been discovered and hence cannot be fixed.
The spyware can be deployed remotely on a smartphone without the owner’s knowledge. Once installed, the spyware enables its clients to take complete control of the device. It can read messages sent through encrypted messaging apps like WhatsApp and Signal. It can also capture keystrokes, intercept communications, track the device, and turn on the microphone and camera to spy on the target. Amnesty International’s Security Lab has published a meticulously detailed technical paper on how they were able to identify the Pegasus-targeted mobile phones. They have also detailed how one could use the Mobile Verification Toolkit (MVT) to see if their phones have been infected with spyware.
Who Are The Targets?
NSO Group, which is under the radar of the investigation, has asserted its rationale for existence to “provide technology to licensed government intelligence and law enforcement agencies to help fight terrorism and serious crime.” But, for many years, this tool was used against civil society in many countries in violation of international human rights. The Washington Post report reveals that three sitting Presidents, France’s Emmanuel Macron, Iraq’s Barham Salih, and South Africa’s Cyril Ramaphosa; three current Prime Ministers, Pakistan’s Imran Khan, Egypt’s Mostafa Madbouly, and Morocco’s Saad-Eddine El Othmani; and one king Morocco’s Mohammed VI were on the list of targets of NSO’s spyware.
Members of the Arab royal family, politicians, journalists, corporate leaders, and human rights activists were among the targets of state surveillance. Mexico has reported a rampant abuse of Pegasus, with over 15,000 Mexican phone numbers being found on the list, including that of former president Felipe Calderon. In India, the members of civil society, ranging from opposition leaders to human rights campaigners, journalists, academics, lawyers, retired judges, and student activists, have been the targets of Pegasus. The list also includes the family members, friends and associates of Jamal Khashoggi, a journalist who was murdered by the Saudi regime in 2018.
The NSO Group’s spyware has enabled the states to target those who are critical of the establishment. Target’s most sensitive information — physical location, video content, individual contacts, personal photos, and private chats — has been captured and turned against them, with no option to challenge such state surveillance. Amnesty’s report notes: “Pegasus software is designed to be an extraordinarily severe interference with the right to privacy.” Despite this, there are several cracks in the legal and regulatory frameworks in place to keep state surveillance under control at both the national and international levels.
Big Brother is Watching You
The demand for surveillance technologies has increased as governments around the world strive to control the “public sphere.” Jürgen Habermas, a German philosopher, coined the term to describe how private people convened as public and articulated the needs of society with the state. The public sphere, in this case, refers to the ability of individuals to share their ideas and opinions, both publicly and privately.
Surveillance technologies have been used to create a fear of expressing your opinions even in the private sphere. You cannot message someone something without the fear of being under the scrutiny of the state mechanism. The Foucauldian sense of disciplinary power — the panopticon, a system of design that enables systematic ordering and controlling of human populations through subtle and often unseen forces — is clear in state surveillance.
In his 1975 work Discipline & Punish: The Birth of the Prison, Michel Foucault used the analogy of Jeremy Bentham’s Panopticon (a prison structure that enabled prisoners to be watched constantly) to show how modern-day surveillance state’s work. He wrote:
“Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So arranging things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfect of power should render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers. To achieve this, it is at once too much and too little that the prisoner should be constantly over-served by an inspector: too little for what matters is that he knows himself to be observed; too much because he does not need in fact of being so.”
Foucault adds, “the Panopticon is a machine for dissociating the see/being seen dyad: in the peripheral right, one is totally seen, without ever seeing; in the central tower, one sees everything without ever being seen.” In Foucault’s opinion, the belief that there are surveillance mechanisms that constantly observe our private conversation is enough to discipline us, our behaviours and actions. Even as you read this, some government agency can record, store, and process your data, somewhere! It is this fear that the governments instil within their civil society with surveillance technology.
The Pegasus project shows us the governments that rule us could know everything about us, while we know nothing about them. George Orwell captures this subtle form of disciplinary power in his quote: “Big Brother is Watching You.” The dystopian novel 1984, in most parts, offers an eloquent critique of present-day society — mired by surveillance and authoritarian regime. Orwell writes: “You had to live — did live from habit that became instinct — in the assumption that every sound you made was overheard, and except in darkness, every moment scrutinized.”
Writing in the late 1940s, Orwell discussed doublethink, memory hole, thoughtcrime, Newspeak, Thought Police, Room 101, and Big Brother — as they would appear in the nightmares of future societies. Orwell once forewarned about the world we live today in.
If you haven’t already, READ Orwell’s 1984!
The Rise of Illiberal Democracies
The NSO Group, an Israeli cyber-surveillance firm, sells its flagship product Pegasus, a spying software, to “vetted governments” worldwide. Forbidden Stories has identified potential NSO clients in 11 countries: India, Azerbaijan, Bahrain, Hungary, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo and the United Arab Emirates (UAE).
We can classify these countries as “not free” or “partly free” in terms of their political structures. (For the sake of this article, I’ve used Freedom in the World 2021 report on political rights and civil liberties published by Freedom House, a U.S. based think-tank.) The countries that are considered “not free” lack a functioning democracy, restrict civil and political liberties, and/or oppress their citizens. And the countries that are identified as “partly free” are slowly drifting towards not-so-free societies, but are not quite there yet.
The countries that Freedom House has classed as “not free” are Azerbaijan, Bahrain, Kazakhstan, Saudi Arabia, Rwanda, and the United Arab Emirates. Azerbaijan and Kazakhstan were part of the erstwhile Soviet Union. The sudden disintegration of the Soviet Union between 1989 and 1991 resulted in the emergence of new autocrats in the region that Moscow’s communist elites had previously ruled.
Since 1993, both under the authoritarian rule of Heydar Aliyev and his son Ilham Aliyev, Azerbaijan has been marred by pervasive corruption, endangered civil liberties, rigged elections, and curtailed press freedom. In Kazakhstan, President Nursultan Nazarbayev ruled the country between 1990 and 2019, and he continues to have a significant influence on the country’s politics. Kazakhstan’s elections are neither free nor fair, with most opposition leaders imprisoned and pro-government oligarchs controlling the media.
Bahrain, Saudi Arabia, and the United Arab Emirates, on the other hand, are motivated by the desire to surveil their population to repress any — and all — dissent towards their regimes. These Sunni-led monarchies fear the emergence of democratic uprisings that could depose them, as happened during the Arab Spring in the early 2010s. While state surveillance is not new to the region, it has revamped this old autocratic impulse to suppress opposition and monitor civilians using technology.
Rwanda, a small landlocked country in East-Central Africa, operates as an authoritarian state with tightly centralized power. President Paul Kagame of Rwanda has used widespread surveillance, intimidation, torture, and alleged killings to stifle political dissent since 1994. Given the political structures of these “not free” states, it is unsurprising that they would use surveillance to maintain power. However, what is most intriguing is why and how the “partly free” states are justifying their use of state surveillance.
Among the states that are classified by Freedom House as “partly free” are Hungary, India, Mexico, Morocco, and Togo. The most common characteristics of these “party-free” states are the loss of credibility in democratic institutions and the rising intolerance towards dissent. There is a growing rise of what I prefer to call as, “illiberal democracies.” The term first found its prominence in Fareed Zakaria’s 1997 article ‘The Rise of Illiberal Democracy’ in the Foreign Affairs. In a nutshell, Zakaria contends illiberal democracies are on the rise around the world, limiting the liberties of the people they represent.
Democracy has always been synonymously used to represent a system that allows freedom of assembly and speech, inclusiveness, equality, rule of law, consent, right to life and minority rights. Zakaria points out that when countries adopt elections without protecting liberty, they give rise to “illiberal democracies.” They are neither ‘free’ nor ‘not free’, but are ‘probably free’, falling between democratic and nondemocratic regimes. To discuss the nature of the illiberal states, I take the case of Hungary and India since 2010.
After rising to power in the 2010 elections, Prime Minister Viktor Orbán of Hungary openly preached for “illiberalism” as a state character, distinct from Western liberal democracy. In his speech of 2014, Orban declared his intention to build “an illiberal new state based on national values.” The speech was intriguing for two reasons: first, it was the first time illiberalism had been embraced by a democratic state; and second, it was the first time in the EU that a European country rejected Western liberal democracy. Since then, Orban has been pushing for constitutional and legislative changes that allow him to consolidate control over democratic institutions.
India’s Prime Minister Narendra Modi and his Hindu nationalist party, the BJP, have stoked rising religious violence, dissent suppression, and persecution of minorities since 2014. India is becoming an illiberal democracy under Narendra Modi’s leadership. In both states, the ruling elites have embraced illiberalism to consolidate and sustain power. These states sustain — and sustain on — pervasive surveillance, ethno-religious violence, minority and gender-based discrimination, and exploitative laws.
Securitization of Surveillance
The political elites of these illiberal democracies perceive certain sections of civil society as threats to national security. They employ surveillance technology to monitor their citizens, citing “threat to national security” as justification. To understand this phenomenon, we need to revisit the securitization theory of Ole Waever.
In his 1995 essay Securitization and Desecuritization, Waever shows us that “security” is a speech act. By uttering the term “security,” a state representative moves a certain issue into the security sphere, and claim special rights to do whatever it takes to resolve it. Waever writes, “In naming a certain development a security problem, the ‘state’ can claim a special right, one that will, in the final instance, always be defined by the state and its elites.” According to securitization theory, states determine national security threats based on subjective rather than objective assessments of perceived danger. Therefore, those in power can always try to use the instrument of securitization of an issue to gain control over it.
Using this security framework provided by the Copenhagen School of Security Studies, we can examine how political elites justify their use of surveillance technologies as a measure of national security. In Orban’s Hungary, civil society activists have been categorized as the paid political activists who are trying to help foreign interests. The Hungarian government securitizes NGOs as “foreign agents” working against national interests. The Orban government has forced NGOs receiving over 24,000 euros a year from foreign sources would have to re-register as “civic organizations funded from abroad,” adopt that label in all their public and media appearances, and disclose a list of foreign donors. Pegasus investigations have also shown us that Orban’s government is suspected to have deployed the spyware to hack phones of investigative journalists and independent media owners.
In Modi’s India, from college students to journalists, intellectuals, politicians, and human rights advocates, everyone who dissents has been labelled as “anti-nationals.” Dissent against government policies has been securitized as an act against the state by Hindu nationalist political elites. In its bid to suppress this dissent, the Indian state is suspected to have resorted to surveillance. Opposition politicians, students, journalists, academics, ministers, business executives, a Supreme Court judge who has not been named yet, and the woman who accused the then Chief Justice of India (CJI), Ranjan Gogoi, of sexual harassment are among those who have been targeted by the state surveillance. Its goal — to curtail all efforts at independent political mobilization against the government.
The Way Forward
Edward Snowden, barely in his 30s had prophesied: “The technology cannot be rolled back, technology is not going anywhere… it is going to be cheaper, it is going to be more effective, it is going to be more available. If we do nothing, we sort of sleepwalk into a total surveillance state where we have both a superstate that has unlimited capacity to apply force with unlimited ability to know and target force — and that is a very dangerous combination… This is the direction of the future.” So, how can we counter the unchecked use of surveillance technology?
First, it’s critical to separate good technology from adverse technology to solve the security surveillance paradox. Here, I define adverse technology as anything that impedes humanity’s progress, aids in the curtailment of civil and political rights, and promotes fear in society. Pegasus spyware, going by this definition, is an adverse technology as it fits all three criteria — governments have used it to curb press freedom, privacy, and threaten freedom of expression and association.
As David Kaye and Marietje Schaake suggest in their recent essay, “governments should implement a moratorium on the sale and transfer of spyware technology until a global export regime can identify and place these tools under global restraint.” Using surveillance technologies on civilians must be accepted as a global security threat.
Second, anticipating a coordinated international action against the misuse of surveillance technology is essentially unrealistic. In many circumstances, this is also unthinkable, as many authoritarian regimes rely on the use of espionage technologies to survive and thrive. Therefore, like-minded democratic states must work together to establish norms that help in regulating adverse technologies. They must aim to blacklist corporations that manufacture such technologies as a process of norm-setting.
On that note, Biden’s upcoming Summit for Democracy, which aims to galvanize support for combating authoritarianism and advancing human rights, must provide an important opportunity for participating democratic states to commit to not deploying or exporting surveillance technologies.
Third, there is an urgency to establish an independent international agency to monitor and blacklist businesses that develop adverse technologies. This should further facilitate in adopting a legal framework requiring transparency in the use and acquisition of surveillance technology. Targeted sanctions against individuals and entities responsible for the sale of surveillance technology to regimes that are likely to misuse the technology will ensure accountability by entities and individuals.
Finally, individual countries must impose permanent restrictions on corporations that manufacture and sell surveillance equipment to authoritarian regimes. They must also implement policies and procedures that ensure more corporate accountability for product use, as well as clear human rights due diligence. It is time for democracies to band together and set global norms to prevent the abuse of surveillance technologies. How these democracies respond to the challenges posed by the surveillance technology will determine if they will survive or perish.
Cover Image: MEDIANAMA