NSA, exactly what was wrong? : Learning from Korea Case

K.S. ParkProfessor, Korea University Law School

Litigation Director, Open NetAugust 5, 2014, APrIGF

What was exactly wrong with NSA?

• all approved by Foreign Intelligence Surveil-lance Court(FISC), in turn set up by Foreign Intelligence Surveillance Act(FISA), a Democrats’ response to the uncovering of FBI surveillance of human rights activists such as Martin Luther King

• Thoroughly “legal” and politically correct!• At least no mass wiretapping, just mass

metadata acquisition.• Maybe, INDISCRIMINATE NATURE was the

problem

2 Unresolved Issues• ISSUE 1: Isn’t suspicion-less mass surveillance

better than targeted surveillance? – What is more stigmatizing?– What has more infringing consequences? Direct

risk of criminal punishment v. mere risk of further investigation (user unidentified)

• ISSUE 2: What to do with INTRA-EXTRAterrito-rial surveillance? From which court do we ob-tain a warrant? – In-country foreigners : non-discrimination principle– overseas-located targets: MLAT– How about overseas targets’ IN-COUNTRY COM-

MUNICATIONS

Korea Case (Lesson for Issue 1)

• Korea – population of 50 M• In 2011 alone, – 7,167 phone numbers wiretapped (per

capita, 15 times U.S., 287 times Japan)– 37.3 M metadata acquired (Maybe

Snowden has the final data on US )– 5.84 M subscriber identifying data

What is up with Metadata?

• Investigation in Search of a Crime• 98% of metadata for cell tower

search• Why do “cell tower search”? -- when

related communications go a cell tower, e.g., anti-government demon-stration

Implication of metadata for democ-racy

Back to morality of mass surveil-lance

• Non-stigmatizing? Bottom-line is TREATMENT of people like POTENTIAL CRIMINALS

• Non-privacy infringing? Depending on ANONYMITY protection

• In Korea, subscriber data disclosure 6M/yr

• In US, the disclosure is MANDATORY but not as many in Korea

ANONYMITY AND METADATA MASS SURVEILLANCE

• USA, UK, Germany, France (commonality?) very low protection of subscriber identify-ing data metadata becomes more pri-vacy-infringing, more tempting targets

• Protect Anonymity to Stop NSA-like mass surveillance!

• Call for international reforms for sub-scriber-identifying data!

• Recent Canadian Case: R. v. Spencer, 2014 SCC 43 (June 2014)