By Cindy Cohn
People all around the world deserve the right to have a private conversation. Communication privacy is a human right, a civil liberty and one of the centerpieces of a free society. And while we all deserve basic communications privacy, the journalists, NGO workers and human rights and democracy activists among us are especially at risk, since they are often at odds with powerful governments.
So it is no surprise that people around the world are angry to learn that surveillance software sold by NSO Group to governments has been found on cellphones worldwide. Thousands of NGOs, human rights and democracy activists, along with government employees and many others have been targeted and spied upon. We agree and we are thankful for the work done by Amnesty International, the countless journalists at Forbidden Stories, along with Citizen Lab, to bring this awful situation to light.
Like many others, EFF has warned for years of the danger of the misuse of powerful state-sponsored malware. Yet the stories just keep coming about malware being used to surveil and track journalists and human rights defenders who are then murdered —including the murders of Jamal Khashoggi or Cecilio Pineda-Birto. Yet we have failed to ensure real accountability for the governments and companies responsible.
What can be done to prevent this? How do we create accountability and ensure redress? It’s heartening that both South Africa and Germany have recently banned dragnet communications surveillance, in part because there was no way to protect the essential private communications of journalists and privileged communications of lawyers. All of us deserve privacy, but lawyers, journalists and human rights defenders are at special risk because of their often adversarial relationship with powerful governments. Of course, the dual-use nature of targeted surveillance like the malware that NSO sells is trickier, since it is allowable under human rights law when it is deployed under proper “necessary and proportionate” limits. But that doesn’t mean we are helpless. In fact, we have suggestions on both prevention and accountability.
First, and beyond question, we need real device security. While all software can be buggy and malware often takes advantage of those bugs, we can do much better. To do better, we need the full support of our governments. It’s just shameful that in 2021 the U.S. government as well as many foreign governments in the Five Eyes and elsewhere are more interested in their own easy, surreptitious access to our devices than they are in the actual security of our devices. A commitment to giving their own citizens strong security is the true test of a country’s commitment to cybersecurity. By this measure, the countries of the world, especially those who view themselves as leaders in cybersecurity, are currently failing.
It now seems painfully obvious that we need international cooperation in support of strong encryption and device security. Countries should be holding themselves and each other to account when they pressure device manufacturers to dumb down or back door our devices and when they hoard zero days and other attacks rather than ensuring that those security holes are promptly fixed. We also need governments to hold each other to the “necessary and proportionate” requirement of international human rights law for evaluating surveillance and these limits must apply whether that surveillance is done for law enforcement or national security purposes. And the US, EU, and others must put diplomatic pressure on the countries where these immoral spyware companies are are headquartered in to stop selling hacking gear to countries who use them to commit human rights abuses. At this point, many of these companies — Cellebrite, NSO Group, and Candiru/Saitu—are headquartered in Israel and it’s time that both governments and civil society focus attention there.
Second, we can create real accountability by bringing laws and remedies around the world up to date to ensure that those impacted by state-sponsored malware have the ability to bring suit or otherwise obtain a remedy. Those who have been spied upon must be able to get redress from both the governments who do the illegal spying and the companies that knowingly provide them with the specific tools to do so. The companies whose good name are tarnished by this malware deserve to be able to stop it too. EFF has supported all of these efforts, but more is needed. Specifically:
We supported WhatsApp’s litigation against NSO Group to stop it from spoofing WhatsApp as a strategy for infecting unsuspecting victims. The Ninth Circuit is currently considering NSO’s appeal.
We sought direct accountability for foreign governments who spy on Americans in the U.S. in Kidane v. Ethiopia. We argued that foreign countries who install malware on Americans’ devices should be held to account, just as the U.S. government would be if it violated the Wiretap Act or any of the other many applicable laws. We were stymied by a cramped reading of the law in the D.C. Circuit — the court wrongly decided that the fact that the malware was sent from Ethiopia rather than from inside the U.S. triggered sovereign immunity. That dangerous ruling should be corrected by other courts or Congress should clarify that foreign governments don’t have a free pass to spy on people in America. NSO Group says that U.S. telephone numbers (that start with +1) are not allowed to be tracked by its service, but Americans can and do have foreign-based telephones and regardless, everyone in the world deserves human rights and redress. Countries around the world should step up to make sure their laws cover state sponsored malware attacks that occur in their jurisdiction.
We also have supported those who are seeking accountability from companies directly, including the Chinese religious minority who have been targeted using a specially-built part of the Great Firewall of China created by American tech giant Cisco.
Third, we must increase the pressure on these companies to make sure they are not selling to repressive regimes and continue naming and shaming those that do. EFF’s Know Your Customer framework is a good place to start, as was the State Department’s draft guidance (that apparently was never finalized). And these promises must have real teeth. Apparently we were right in 2019 that NSO Group’s unenforceable announcement that it was holding itself to the “highest standards of ethical business,” was largely a toothless public relations move. Yet while NSO is rightfully on the hot seat now, they are not the only player in this immoral market. Companies who sell dangerous equipment of all kinds must take steps to understand and limit misuse and these surveillance. Malware tools used by governments are no different.
Fourth, we support former United Nations Special Rapporteur for Freedom of Expression David Kaye in calling for a moratorium on the governmental use of these malware technologies. While this is a longshot, we agree that the long history of misuse, and the growing list of resulting extrajudicial killings of journalists and human rights defenders, along with other human rights abuses, justifies a full moratorium.
These are just the start of possible remedies and accountability strategies. Other approaches may be reasonable too, but each must recognize that, at least right now, the intelligence and law enforcement communities of many countries are not defining “cybersecurity” to include actually protecting us, much less the journalists and NGOs and activists that do the risky work to keep us informed and protect our rights. We also have to understand that unless done carefully, regulatory responses like further triggering U.S. export restrictions could result in less security for the rest of us while not really addressing the problem. The NSO Group was reportedly able to sell to the Saudi regime with the permission and encouragement of the Israeli government under that country’s export regime. The truth is, too many democratic or democratic-leaning countries are facilitating the spread of this malware because they want to be able to use it against their own enemies.
Until governments around the world get out of the way and actually support security for all of us, including accountability and redress for victims, these outrages will continue. Governments must recognize that intelligence agency and law enforcement hostility to device security is dangerous for their own citizens because a device cannot tell if the malware infecting it is from the good guys or the bad guys. This fact is just not going to go away.
We must have strong security at the start, and strong accountability after the fact if we want to get to a world where all of us can enjoy communications security. Only then will our journalists, human rights defenders and NGOs be able to do their work without fear of being tracked, watched and potentially murdered simply because they use a mobile device.
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