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< | The Rapidly Evolving Global Private Market of Cyber Surveillance |
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> | The Rapidly Evolving Global Private Market of Cyber-Surveillance |
| | -- By DonnaZamir - 11 Oct 2019 |
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< | In recent years, every so often we are provided with high-profile reports, normally using quite vague descriptions, about another private entity who has offered its expensive and cutting-edge surveillance services to a different wealthy entity, for a different purpose. Thus, an area which was once dominated by countries and government officials, is now comprised of private actors as well, which constantly act in this highly lucrative global industry. |
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> | In recent years, we are occasionally provided with high-profile reports describing private entities who offer their cutting-edge cyber-surveillance services to other wealthy entities, for varied purposes. An area once dominated by countries and government officials, is now becoming a highly lucrative global industry, eminently comprised of private actors. |
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< | Some of the prominent names who gained much attention in the global media are Dark Matter, the NSO group, Black Cube, Hacking Team, and Gamma Group; yet, it seems that there are many more less-known private companies, as well as individuals, who are also deeply involved in the cyber-spying global market. |
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> | Among the prominent names gained much attention in the global media are Dark Matter, NSO group, Hacking Team, and Gamma Group; yet, there are many other less-known private companies and individuals, who are also deeply involved in the cyber-spying global market. |
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< | The work of these private entities is described in various terms, such as cyber surveillance; cyber spying; lawful interception; spy businesses; competitive or business intelligence; and more of the like. Thus, while the conduct of these entities is of high interest, most of their activity remains unknown to the general public. |
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> | These private entities engage in activities described by various terms, such as cyber-surveillance; cyber-spying; competitive or business intelligence. While the conduct of these entities is of high interest, most of their activity remains unknown to the general public. |
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< | Some Features of the Private Cyber Surveillance Market |
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> | Some Features of the Private Cyber-Surveillance Market |
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< | The private cyber surveillance market provides services to both private, as well as public entities. |
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> | The private cyber-surveillance market provides services to both private as well as public entities. |
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< | Private customers may include organizations and individuals who are looking to gather information about their business competitors or other rivalries. Government and other states' officials are typically interested in using cyber surveillance for fighting terrorism and other types of criminal conduct; however, as we are every so often informed, state actors are also using these services for surveilling human rights activists, journalists, political opponents and even "ordinary" citizens and other individuals. The process of hiring these private cyber-spies is usually done "under the radar", without any official tenders or some other type of public process. |
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> | Private customers include organizations and individuals who are seeking information about their business competitors or other rivalries. |
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< | Another aspect of this rapidly emerging industry is that it is highly comprised of former military and other national security officials. Thus, people who obtained their technological knowledge and expertise while serving their country, subsequently might use the acquired knowledge in the global private market. |
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> | Government and other state officials are typically interested in using cyber-surveillance for fighting terrorism and other types of criminal conduct. However, as we are every so often informed, state actors may also apply these services for surveilling human rights activists, journalists, political opponents and even "ordinary" individuals. The hiring procedures of these private cyber-spies are usually conducted "under the radar", without any official tenders or other type of public process.
Furthermore, this rapidly emerging industry is highly comprised of former military and other national security officials. Thus, people who obtained the utmost advanced technological knowledge and expertise while serving their country, subsequently might use this acquired knowledge in the global private market. |
| | Concerns of Massive Human Rights Infringements |
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< | It can certainly be argued, that this is not a new phenomenon – the sale of weapons and technologies by private actors, even by former national security figures, is a long-standing and well-known routine. |
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> | It can certainly be argued that this is not a new phenomenon – the sale of weapons and technologies by private actors, including former national security figures, is a long-standing and well-known routine.
Nonetheless, contrary to other warfare means, the global distribution of cyber-surveillance technologies can be done much quicker; can be more far reaching; and is conducted under substantial confidentially. Thus, in a world with inadequate restrictions and regulations on the cyber-surveillance market, it is now technically possible for to surveil entire populations over-night, without (nearly) anyone knowing.
This situation clearly creates serious concerns regarding massive infringements of fundamental human and civil rights, such as the rights to privacy; free speech; assemble; movement; and even life and bodily integrity. Various human rights organizations are constantly seeking to raise awareness to the matter and initiate change, albeit without much success.
Who Should be Held Accountable?
In light of the aforesaid, one should ask: what is being done about this? The answer is, in short, not much.
In his recent report on the Surveillance Industry and its Interference with Human Rights, the UN Special Rapporteur on freedom of opinion and expression indicated that the cyber-surveillance industry is currently not subject to any effective global or national control. He therefore called for an immediate moratorium on the sale, transfer and use of surveillance technology, until human rights-compliant regulatory frameworks are in place.
Yet, the question of who should this regulatory framework address, is highly complex. |
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< | Nonetheless, the impact of globally distributing cyber surveillance means could be much faster and more far reaching, while at the same time done under much confidentiality. Thus, in a world with no adequate restrictions and regulations on the cyber spyware market, it is now technically possible for an entire population to be easily surveilled over night by its government without (nearly) anyone knowing, while using the services of highly professional private entities. |
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> | One option is to hold the private entities accountable for any abuse of the spyware they provide. However, this may pose major difficulties. First, the cyber-surveillance market is inherently highly secretive, thus making it practically impossible to track and enforce. Second, the private spyware providers often present their customers with a disclaimer, by which the purchaser guarantees to use the services provided for legitimate purposes only, thus somewhat "immunizing" the providers. |
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< | This situation clearly creates serious concerns of massive infringements of fundamental human and civil rights, such as the rights to privacy; free speech; assemble; movement; and even life and bodily integrity. Various organizations around the world, including Citizen Lab, Privacy International, and others, are constantly trying to raise awareness to the matter and initiate change, without much success. |
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> | Another option is to hold accountable the countries who allow the sale of cyber-surveillance means from their jurisdiction. Nevertheless, it seems that many countries are quite reluctant (to say the least) to regulate against their own ability to sell and use cyber-surveillance means, for security and commercial objectives. The cyber-surveillance market is a highly profitable and competitive field. It is also an area of mutual development and cooperation between different nations with common interests. Therefore, effective regulation is not expected to emerge from the international community any time soon. |
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< | So What's Next? |
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> | What's Next? |
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< | In light of the aforesaid, one should ask: what is being done about this? The answer is, shortly, not much. |
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> | Considering the above-described picture, it can be anticipated that, in the near future, far more advanced technologies will be accessed by increasingly more people around the world. |
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< | Thus, following his report on the Surveillance Industry and its Interference with Human Rights, the UN Special Rapporteur on freedom of opinion and expression has recently called for an immediate moratorium on the sale, transfer and use of surveillance technology until human rights-compliant regulatory frameworks are in place, while expressly indicating that surveillance tools are currently not subject to any effective global or national control. |
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> | However, there are some current efforts to affect some change in this chaotic market. |
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< | One possible solution could be to hold the private entities accountable for any abuse of the spyware they provide. However, there are major difficulties in this regard. First, as an inherent feature of the cyber surveillance market, it is highly secretive, thus making it almost impossible to track and enforce. Furthermore, the providers of spyware often present their customers with some kind of a disclaimer, according to which the purchaser guarantees to use the equipment or services provided for legitimate purposes only, thus somewhat "immunizing" the provider's accountability. |
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> | Many suggest, and I tend to agree, that certain cyber-surveillance means should be treated and regulated as weapons, with all that it entails. |
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< | Another option is to hold accountable the countries who allow the sale of cyber surveillance means from their territory and jurisdiction. However, it seems that many countries are quite reluctant (to say the least) to legislate and regulate against their own ability to provide and use cyber surveillance means, due to security, as well as commercial, reasons. As reality shows, the cyber surveillance market is a highly profitable and competitive field, as well as an area of mutual development and cooperation between different nations with varying common interests. Thus, the solution should not be expected to come from the international community any time soon. |
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> | One effort in this direction is initiated by the Wassenaar Arrangement (the "WA") – a voluntary international export control regime of conventional arms and dual-use goods and technologies, comprised of 42 state members, including the U.S. In a statement of December 2019, the WA Plenary Chair announced that the participating states have adopted new export controls in several areas, including cyber-warfare software, communications monitoring and digital investigative tools. While, generally, this might be a substantive declarative act by the international community, the WA does not entail powerful enforcement mechanisms, and, in any event, some of the prominent states in the cyber-surveillance market are not members of the WA. |
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< | Conclusion |
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> | A different attempt to apply restrictive measures upon the cyber-surveillance industry stems from ongoing litigation procedures. In recent years, civil organizations and individuals have been bringing lawsuits against both governments and private entities, for violation of privacy and other related laws. Currently, no affirmative judicial decision has been made in this regard. |
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< | Many suggest, and I tend to agree, that certain cyber surveillance means should be treated and regulated as weapons, with all that it entails. |
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> | Another intriguing litigation route is being carried out by the private entities themselves of the cyber-surveillance industry. For instance, in October 2019, WhatsApp? Inc. (owned by Facebook Inc.), filed a complaint against NSO Group in California, asserting that its spyware had been used to surveil communications of WhatsApp? users, including attorneys, journalists and human-rights activists. |
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< | Yet, it seems that at the moment, not much is done nor will be done, while too many powerful factors in the equation are benefiting from the current status. Thus, in accordance with current forecasts of the rise of the global cyber security market, it should be anticipated that in the near future far more advanced technologies will be accessed by increasingly more people around the world. |
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> | Thus, while currently there is no clear solution for the various acute problems incurred by the private cyber-surveillance industry, these regulatory and litigation efforts may be helpful in raising public awareness and promoting the sorely needed change. |
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