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Archive for July, 2014

Lawyers Who Don’t Use Encryption When Suing Government Entities With Access to Intercepted Material (Mass Surveillance)

And why every law school should teach everyone about encryption before any other “IT skills”


THERE IS a disturbing trend which is shared among pretty much all lawyers and other ‘legal’ professionals. I know because I checked. I also know because I saw how my friend, Pamela Jones (the paralegal behind Groklaw), got spooked by the spooks and stopped writing online after she had rejected my offer to use encryption about 8 years ago (saying it would only attract more attention). These are smart people who seem to be ignoring the threat of surveillance even when the threat is out there in the open, thanks to people like Edward Snowden. A lot of what Snowden showed had been known to me for years, but now there is undeniable truth which even the NSA’s chronic lies cannot cover up and shed uncertainty on. Ignorance is no longer a valid excuse.

I currently have a very strong case against a decision from the British government. I am sure I’ll win, the only question is when and at what cost (I have already spent thousands of pounds on it). I am not going to elaborate on it until the case is over, whereupon I will also release sensibly redacted papers (removing personal information) and explain the abuses which I have become aware of and personally suffered from. These abuses have impacted at least 4 people that my solicitor alone (an activist against torture) is working with. Nationwide, therefore, there may be thousands of such victims. It’s hard to say for sure how widespread this type of abuse has become, but one can estimate by extrapolation. In the future I will also file a formal complaint about it, then pressure my Member of Parliament to take action (not just yet).

Now, let’s deal with the key issue — or ‘beef’ — of this post. As in any legal case, papers are being sent back and forth, often electronically. It’s a practical thing to do because of speed (instantaneous for images and text). The stuff which the solicitor and I have already exchanged over E-mail is known about to the respondent, which has copies (this includes a request for appeal). Some stuff does not necessarily need to stay under the table, especially when it is accessible to both sides. Just as one requires no anonymity when purchasing a flight ticket (because the ticket itself already eliminates any chances of anonymity), for some documents it is fine to be visible to the opponent. There is not much to lose there.

But then there’s more sensitive stuff, like strategy.

Lawyers and barristers should always send sensitive stuff encrypted and sent over securely (to secure client-solicitor privacy/privileges). E-mail is one of the least secure methods of transferring data. It’s almost as thought it was designed for surveillance and profiling/linking people, but in reality it just got exploited by spooks and the protocols never adapted to counter these inherent deficiencies (encrypted mail still exposes the identity of the sender and recipient/s). Face-to-face or snail mail are better because bugging is hard and in the latter case it’s hard to achieve un-obtrusively, e.g. opening envelopes and re-sealing them. Since GCHQ and some government departments (e.g. Home Office) work together on increasing surveillance, right now under the guise of ‘emergency’ as if we’re in wartime, we can assume — pessimistically — that they may be studying the cases against them based on interception and preparing themselves based on this prior knowledge, or increased awareness. This is of course not acceptable, but then again, we already know that obeying the law is not our government’s best strength. That’s a debate for another day. In another circumstance one could probably chat or write about these issues (I know that my solicitor too advocates human rights at some capacity), but this is not the subject of this post.

As one who write prolifically on issues of national security, I have good reasons to suspect I have no privacy, unless technical measures are taken to protect it. I encrypt mail where possible. But I depend on others doing the same. Encryption is not a one-end preference, it needs to be agreed on and embraced by both ends.

People don’t want to jeopardise a case by unnecessarily giving away strategic arguments to the opposing side; I have seen people (usually in the US, some of whom I know online) on whom subversive means were used (illegal actions by those in power) to intimidate, harass, libel, etc. Completely bogus charges can be made up and hyped up in the media, framing of a person is very common (digitally too), and drainage of one’s resources through legal fees is also a common tactic of vendetta.

Any solicitor who wants to take on the government of his/her country absolutely must learn to encrypt. But this should not be limited to cases like these. Several months ago it turned out that the US government had spied on a US law firm which was working to advise a foreign nation on trade negotiations (this is a corporate matter). We know these types of abuses do happen in the West, so lawyers must learn to protect themselves. Unless they can sue to stop these practices (illegal actions by their government), they will need to adopt technical means of overcoming these dangers.

Perhaps I have become too cynical or too pessimistic when it comes to my government obeying the rule of law, but based on some recent revelations, the record supports me. We are living at times of lawlessness for the rich and powerful and oppression (through tyrannical laws and overreach) for the rest.

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