Rick Falkvinge, pirate

More on the Ubiquitous Wiretapping Bill

There is a lot of debate in Sweden right now. My exposing a very senior intelligence official this Saturday, who stated – on tape – that the Ubiquitous Wiretapping Bill legalized the agency’s existing mission, caused the Swedish blogosphere to detonate like a barrel of overheated thermite. Print media, though, hasn’t said anything apart from brief mentions in a few editorials. I’ve never seen a discrepancy like it.

Unfortunately, there’s very few posts in English on the matter. So I thought I’d provide a comprehensive summary.

Key points of the Ubiquitous Wiretapping Bill

The bill’s name is en anpassad försvarsunderrättelseverksamhet, translating roughly to a better adapted military intelligence gathering. Key points of the bill:

• At about 20 points in the national information infrastructure network, all traffic is spliced off and fed into the Försvarets Radioanstalt (FRA) agency. These points are placed as to catch all traffic entering and leaving the Swedish borders, but will catch much – if not most – domestic traffic too, for technical routing reasons. Electronic traffic, in particular, always takes the scenic route.
• This affects all Internet traffic and all telephony traffic, meaning web surfing, e-mail, phone, and fax are affected, to mention but a few.
• The FRA will scan all traffic in real time according to about 250,000 search criteria. The traffic that matches will be automatically saved for manual intelligence analysis. This obviously takes a lot of computing power. We don’t know the exact extent of FRA’s computing power, but we do know that they have the world’s fifth most powerful computer, in competition mostly with nuclear physics labs.
• “Customers” that will be able to place requests for searches include all authorities (all some 500 of them including Department of Transportation, Department of Agriculture, etc., but notably the police, secret service and customs).
• The political administration may order (not request, but order) a political wiretapping to catch communications they are interested in.
• Major businesses will also get access to the wiretapping grid, but will have to go through an authority.
• The bill specifically allows for singling out Swedish people for specific wiretapping, although only under certain qualifiers.
• The mandate for the agency’s own intelligence gathering is broadened from “external military threats” to “external threats”, which are exemplified as international crime; trafficking in drugs, weapons, or people; migration movements; religious or cultural conflicts; environmental imbalances and threats; raw materials shortages; and currency speculation. More examples are listed.

I’ve listed some of the proponents’ rhetoric in my previous post.

What this does is change the default from “you have a right to privacy” to “you are always, everywhere, wiretapped.”

Timeline of the bill

This bill has its origin in a report from the then-commander-in-chief Owe Wiktorin, who published a report in 2003. It became a bill from the Department of Defense under the previous administration, in 2005, but was stopped by the Department of Justice.

This is remarkable as the Minister of Justice in the previous administration, Thomas Bodström, had given rise to a new Swedish term — Bodströmsamhället — meaning Big Brother Society. He had introduced more repressive and privacy violating laws than anybody before him. People wrote songs about him. We issued pamphlets with the title “The Worst of Bodström’s” listing the most egregious bills. Et cetera. In that light, it is even more remarkable that even he shelved the bill in February of 2006.

In September of 2006, there were general elections, resulting in a change of administrations. The new Minister of Defense, Mikael Odenberg, decided to blow the dust off the bill and re-introduce it.

It is important to understand here that bills in Sweden can originate in one of two ways. They can either come from a Member of Parliament, in which case that member will have to work with other MPs in order to build support for the bill. Most people are familiar with this model. However, they can also come from the administration formed by the majority coalition, in which case the bill already enjoys majority support in parliament. This bill is the latter kind.

The first vote on the bill was on June 14, 2007. Votes were strictly along party lines (with just one exception who abstained), and so the bill passed. However, a minority in parliament were able to trigger a constitutional safeguard to postpone the bill for one year. This safeguard can be triggered when citizens’ privacy is threatened. It doesn’t protect against law text as such, only against rush-throughs.

The next vote on the since-unchanged bill is due June 17, 2008. From the talk of the MPs, votes are going to be strictly along party lines again, and the bill thus currently has a majority support. However, MPs are extremely edgy about this bill and many simply do not want it to pass, but are under immense pressure from their respective parties. In the 14 days remaining, the right catalyzing event can trigger a massive defection from party lines. I thought my revealing that the FRA had fully knowingly ignored the constitution in its existing wiretapping would be such an event, but it was not enough — print media didn’t cover it. It takes media pressure. Politicians are extremely sensitive to media pressure, especially the international kind.

It only takes one international reporter to start a flood. It’s quite possible that you are that reporter.

Responses to the bill

How did the bureaucrats respond? In unusually plain language, actually.

The Department of Justice, among other similar comments, simply called the bill “completely alien to our form of government”.

The Police Board said that the bill “indicates a frightening lack of understanding for the requirements regarding the protection of citizens’ privacy that follow from our Constitution and the European Convention on Human Rights”.

The National Registry Authority replied that this bill “is compatible with neither the Swedish Constitution nor the European Convention on Human Rights. Such an immense expansion of wiretapping of telephony and other forms of communication cannot be legislated under any circumstance.”

And so on, and so on.

It should also be noted that the administration sent out the bill for comments between December 22, 2006, and January 4, 2007. That’s right, it was deliberately sent out when everybody was home for Christmas and New Year’s.

It should also be noted that courts don’t have the power to strike down laws in Sweden, not even unconstitutional ones, unless in extreme cases — so extreme that even this one won’t trigger the necessary prerequisites. In general, if a majority of lawmakers want to create a law that counters the constitution, there’s nothing stopping them because there’s no counterpower.

My exposing of an official this Saturday

I noted in my last post that I had an official on tape stating that the FRA was already acting in violation of the constitution. The official in question was none other than Anders Wik, former second-in-command (överdirektör) of the FRA, now retired (but wasn’t retired when the recording was made).

Here’s a translation of a transcript:

Falkvinge: But, with regards to that… there was something you said first time we met that I’ve given some thought, and that was how the FRA eavesdrops into radio vs. wire. You mention at some occasion that the eavesdropping on wireless traffic that FRA has done for several years violates the European Convention on Human Rights? I checked article 8, and it leaves lots of room for national surveillance by security agencies and so on?

Wik: Yes, but… It does, but what’s not… what there… what’s also some… kind of legal precedent for, is that you need… positive law support. It’s not enough that, that it’s not forbidden.

Falkvinge: Mhm-hm.

Wik: So it must be explicitly legal, it must be explicitly said that this, this particular authority is to do this task.

Falkvinge: Ok, so that’s what…

Wik: The intrusion of privacy must be specified.

Falkvinge: Ok, so that’s what being changed with the new surveillance bill where it’s said that –

Wik: Yes.

Falkvinge: …the FRA is to carry out these duties? And the duties have not been there before, and that’s what you mean –

Wik: No, they [the duties] have been there before, but in this way they will become legal. Or… eh… you can… or I would say that… the lawyers sug- won’t agree to…

“The duties have been there before, but in this way they will become legal.” Those are the words on tape of the second highest intelligence official in Sweden. I had expected this to cause major detonations in print media, but it has only exploded among blogs (my posting about that was the #1 read post for a while in the Swedish political blogosphere).

Swedish IDG picked up the story immediately and professionally. No print media or TV did.

The recording is here (in Swedish).