The head of The Norwegian Police Security Service (PSS), Benedicte Bjørneland, in a keynote speech at The Nordic Conference of Law Practitioners, stated that analyses based on big data are necessary to safeguard national security. This entails the storage of all communication data of certain types about all people in Norway.
The EU Data Retention Directive was ruled unconstitutional by several national constitutional and supreme courts, and was therefore scrapped by the EU commission, because it was incompatible with the civil liberty that is the foundation of liberal democracies. In the Norwegian debate on the directive, several examples were put forward to illustrate how even banal data can be highly sensitive.
The Norwegian data retention law, passed to comply with the EU directive before it was scrapped, was, however, not nearly as far-reaching as what Bjørneland has advocated. It would mean a system where police services could be given access to an archive with a limited time scope, if they managed to secure a court ruling on a case by case basis. The PSS head, on the other hand, appears to want real-time access to data streams and an all-encompassing database, as is known from the disclosures of Edward Snowden.
Security Service overreach is not something with a pretty history: The Norwegian Lund Commission, Guantánamo and the rendition system, Abu Ghraib, the Five Eyes-cooperation’s opportunistic circumvention of national privacy laws and Snowden’s disclosures about NSA operators considering nude pictures which they happen upon as «fringe benefits». Taken together, these cases show that neither a specific, Norwegian kindness-syndrome nor a history of liberal, transatlantic democracy can rein in a relentless craving for information.
No, it appears that some of the most crucial features of the rule of law, is the limitations that the state places upon itself. The executive branch shouldn’t attempt to influence the judicial. The police doesn’t investigate nor collect evidence against citizens, unless it has a suspicion that can be defended in court. Security services shouldn’t be given a carte blanche, but should continuously be made to justify their aims and measures to civilian, laymen supervisors.
Professional ethics, politicians who refrain from commenting court procedures, judges who choose not to have lunch with security service prosecutors – these are simple measures to enforce such principles, not substitutions for them. When Bjørneland wants to abolish the presumption of innocence, and as consequence acquire a capacity that far exceeds anything the STASI of GDR ever disposed of, we all know that the PSS of tomorrow or the day after that will be an institution that is superior to any of the dicatorships that we fear, when it comes to respecting human rights and privacy.
Still, we know just as well that errors will happen. The professional culture will slip in some cliques. The chair of the Intelligence and Security Supervisory Board (ISSB, no. EOS-utvalget) could be injured in a car accident and become addicted to opiates. That is why we draw lines in the sand, lines that we can’t accept that waves of security hubris erase.
With Snowden’s disclosures, we were once again reminded of how easy it is to let things slip, if we don’t keep up some absolute limits for lawful conduct. In this perspective, Bjørneland’s statement has proven twice that security services need to be kept under independent supervision: Both because it appears so simple to forget, and be enticed by the importance of knowing everything. The PSS head, has lost her head! And because this has become sufficiently mainstream within the PSS that its head could make such a statement in the service’s name, without anyone stopping her.
It would probably be wise if the leader of the ISSB, rather than being a former Minister of Defence, were a former Amnesty Lawyer or mass media editor. At least until the public has been convinced that the lessons from the surveillance and intelligence scandals of the last decade have been learned.
