As part of the government’s plan to develop a mass surveillance system of social media, private conversations and messages, the Ministry of Interior (MOI) has called for a limited tender to provide and operate software that monitors Internet activities. Titled the “Social Networks Security Hazard Monitoring Operation (public opinion measurement system),” the project was first revealed in a report published by the Egyptian newspaper Al-Watan on June 1, 2014.
Far from denying the newspaper’s report, an official from the MOI has confirmed the news in a phone call with one television channel, insisting, however, that this system is not an encroachment on privacy and freedoms of information and expression.
“Unlike the traditional rules of criminal investigation, the surveillance system announced by the MOI will collect information and spy on the data and activity of all Internet users, whether suspects or not. This surveillance is also not limited to a certain time frame, and does not require a judicial order, and may be performed regardless of necessity.”
Revealed shortly after the end of the presidential elections, and before the announcement of the final results, news about this project stirred outrage and alarm among Egyptian activists. They responded in a sarcastic manner as usual, using the “We’re being watched” hashtag on Facebook and Twitter.
Some activists and rights organizations decided to litigate against the Interior Ministry, filing court case (number 63055, judicial year 68) at the Administrative Court, which is currently pending its first hearing.
On September 17, 2014, newspapers reported that the Ministry of Interior had already contracted with Systems Engineering of Egypt (SEE), allegedly the company which won the bid, and an affiliate of an American company specialized in cyber surveillance and spying called Blue Coat. The Egyptian company has a history of cooperating with Egypt’s State Security apparatus. After the publishing of this news story, the company temporarily took down its website, while other newspapers reported statements by MOI officials confirming the contract.
Censorship and surveillance
What we are witnessing today is not the first incident of cyber censorship in Egypt. According to a court ruling issued by the administrative court in 2011, in the case dealing with the mass communications blackout during the 25 January uprising, surveillance attempts started in 2008 at the latest, as experiments to that effect were performed by the ministries of interior, communication and information, with the cooperation of cell phone service providers. One of those attempts took place in April 2008, and another on October 10, 2010 – both incidents tested shutting down communications in Egypt, taking down certain websites, denying Internet access for “a city, a governorate, or a number of governorates,” as well as slowing down certain websites. They also included a plan to quickly access the history of Internet users for over three months or more.
In 2010, the same court also issued a ruling in a case related to monitoring bulk SMS services. The ruling cancelled a decree that was issued earlier by the National Telecommunication Regulatory Authority to subject bulk SMS services to preliminary and/or subsequent control. The ruling also nullified the need for companies to be granted prior approval from authorities before sending bulk SMS, a requirement which was meant to “censor the SMS content.”
After State Security offices were stormed by citizens in the aftermath of the January uprising, some leaked documents revealed the Egyptian government’s attempts to purchase technologies that would help it cyber-spy on users’ data and activities. This technology was to be provided by a company specialized in this line of software called Gamma International.
Apart from the aforementioned cases, the Egyptian authorities’ attempts to control cyberspace, before 2008 and until now, were limited only to the prosecution of activists. Such litigations proceeded on activists’ use of social media, like blogs, Twitter, Facebook, etc. They mostly relied on sparse legal provisions in the Egyptian Penal Code that were chiefly drafted to combat so-called “publishing crimes.” While the laws did not explicitly refer to digital publishing as a means of publishing, they were vague enough to subject digital publishing to the law.
A considerable number of activists paid the price for the government’s censorship of digital platforms. In February 2007, blogger Karim Amer was sentenced to four years in prison for blasphemy and insulting the president, based on content he had posted on his personal blog. Al-Azhar University, Amer’s school at that time, accused him of violating the law.
In 2010, Facebook user Ahmed Hassan Bassiouny was sentenced to six months in prison for starting a Facebook page that provided general information for new army recruits. Having completed his mandatory military service in the Administration of Recruitment and Mobilization, Bassiouny decided to share the general information he acquired with new recruits. He aggregated information that was also available on many other sites. The information included details on the required documents, when to visit the recruitment office for application, the consequences of missing the application deadlines, and the conditions for postponement and exemption. Although all the information posted by Bassiouny had already been available on many sites, including the State Information Service website, the military court ruled that this was classified information, which cannot be published without a written permission from the minister of defense.
Content censorship did not end with the 25 January uprising, though. In the period following the uprising a number of activists were prosecuted in connection with content published on social media. Among them was Alber Saber, who was sentenced to three years in prison in December 2012, for posting texts and videos on Facebook and YouTube, as well as on his personal blog where he expressed his opinions on some religious issues, which the Egyptian court found blasphemous.
During the investigation in Saber’s case, the public prosecutor asked a committee from the Ministry of Interior to log on to his accounts on the social networks, and check the digital items confiscated while searching his home. The technical report concluded, after checking private messages Saber exchanged with his Facebook friends, that he had another Facebook account, and that he is one of the administrators of a page called Egyptian Atheists. Messages with his friends also contained phrases that were allegedly in contempt of Islam.
Authorities here did not only investigate material—in this case online content—that was presented to the court in relation to the alleged criminal charge, but has undertaken a process of “surveillance,” inspection, and scrutiny of all the online activity of the defendant, in pursuance of new charges and finding evidence for the original charges.
In general, charges against online users expanded to include commenting on court rulings and calls for protests without permission, yet this did not restrain activists’ use of virtual space. They continued to exchange thoughts, even shockingly controversial ones, spread and receive knowledge, as well as call for political events, which presented a challenge for the Egyptian authorities, especially in 2011 and 2012. Consequently, the Egyptian authorities were forced to reconsider their strategies, looking for alternative monitoring methods, which went beyond investigating specific content published by defendants in an investigation or a criminal trial. The regime’s old strategy seemed to have failed in serving the authorities’ crackdown on the public and political spheres.
This is why they announced the “Social Networks Security Hazard Monitoring operation,” or the “public opinion measurement system,” in a strategy that relies on constant mass Internet surveillance of digital activism, instead of interfering only in case of a criminal act or upon a judicial request for investigative purposes.
Privacy and spying
Traditional methods of censorship have indeed been an encroachment on the individuals’ right of privacy, yet the violations it entailed are not comparable with the amount of violations resulting from applying the government’s plans for mass surveillance.
According to the bid requirements announced by the ministry, the desired technology should create a system that can constantly check the overall digital activity, whether there was suspicion of using cyberspace for illegal activity or not. This in fact is in contradiction with Egyptian laws regulating investigation or finding evidence of a criminal activity or an illicit act. The investigation officer’s authority, as stated in Provision 21 of the Criminal Procedure Law, should be limited to investigating crimes, arresting offenders and collecting evidence for the investigation or the prosecution.
This means that the investigation officer’s authority to collect evidence depends on the existence of information related to the occurrence of a certain crime committed by one person or more. In pursuant provisions, the law detailed how investigation officers can investigate and collect such evidence through various measures, including: requesting clarification and performing examination in the course of investigating reported crimes; or arresting the defendant in the act of committing a crime or a felony, which would call for three months’ imprisonment or more as punishment; or, if the defendant was not caught in the act, getting a warrant of arrest from the public prosecutor. This applies to searching individuals and homes, too, since the law granted the investigation officers the right to search individuals only if they can be lawfully arrested.
On February 2, 1984, the Supreme Constitutional Court had ruled that Provision 47 of the Criminal Procedure Law was unconstitutional (case 5, judicial year 4). This provision had allowed the investigation officers to search the defendant’s home, if caught in the act of committing a crime or a felony, and confiscate items and documents that may reveal information based on what was termed “substantial indications.” The court found the phrase “substantial indications” rather equivocal, and that it could result in misuse of the search authority, and thereof a violation of privacy.
In addition, Provision 50 of the Criminal Procedure Law stated that the search should only be limited to items related to the crime being investigated. The provision also grants the officers responsible for the search an exception, however, whereby they are allowed to confiscate items, which were not specified by the public prosecutor, only if the possession of such an item is illegal, or if the item is relevant to another crime being investigated.
The Ministry of Interior is applying criminal procedure legislation, approved by the Egyptian judiciary for criminal investigations, to control all kinds of digital activity, while breaking away from privacy rights and the freedom of expression and information stipulated in the legal corpus.
Unlike the traditional rules of criminal investigation, the surveillance system announced by the MOI will collect information and spy on the data and activity of all Internet users, whether suspects or not. This surveillance is also not limited to a certain time frame, and does not require a judicial order, and may be performed regardless of necessity.
Monitoring the public and private spheres
In defense of its project, the MOI claims that this system would not violate the individuals’ privacy or freedom of expression and information. It allegedly only monitors information published on the “public” virtual sphere, which anyone can access without spying technologies or invading someone’s privacy. Supposedly, the objective is to fight terrorism and other forms of criminal acts. On one hand, these arguments are entirely divorced from the terms of the bid for the surveillance project, and on the other hand, they raise questions regarding the individuals’ right to privacy in the digital public sphere.
Arguing that privacy is irrelevant in the context of publicly published information—for example, tweets on Twitter—indicates either ignorance of the meaning of privacy, or an attempt to circumvent the concept. A user consciously chooses to share certain content with others, who choose to share certain content in return. But if a security apparatus monitors every single detail on the social networks, this will definitely be against the users’ will, which makes it a serious violation of privacy. One obvious example for this is Facebook, where users share public content with a list of friends or followers. Anyone who is not on this list cannot access the content, unless the user allows it. Thereby, if anyone who is not on this list attempts to access the content the user shares, without the user’s permission, they would be invading privacy.
Protecting privacy in the public sphere is not a novel issue in the sphere of legal rights. According to Provision 309(a) of the Egyptian Penal Code, it is prohibited to use any content, public or private, without the permission of the owner. And if a public officer performs such act, it leads to his or her imprisonment. This provision serves to prevent the abuse of the state’s power to spy on individuals. Spying, as defined by the aforementioned law, includes eavesdropping, recording or copying conversations, and taking or copying photos. This asserts the individuals’ privacy rights in both the public and the private spheres, unlike the MOI officials’ claims that privacy doesn’t exist in the public sphere.
As for invading the private sphere, the terms of the bid determined by the MOI gave priority to offers that help monitor social networks, like Whatsapp and Viber, which are used for private messaging, and Instagram, which is used for saving and editing photos. This proves that the government is trying to spy on the users’ private conversations and messages, contrary to the claim that the monitoring will include public content only.
The terms of the bid also include a feature that allows identifying influential people in certain geographical areas and their connection to one another through monitoring social networks’ content. This entails targeting and monitoring the activity of individuals who are influential in the public and/or political spheres.
It is also worth noting that this social networks monitoring project, introduced by the MOI, violates international principles of human rights with regards to communications surveillance. Among those is the principal of “proportionality,” by which “decisions about communications surveillance must be taken after weighing the benefit sought to be achieved against the harm that would be caused to the individual’s rights and to other competing interests, and should involve a consideration of the sensitivity of the information and the severity of the infringement on the right to privacy.”
The second principal violated herein is the principal of “necessity,” which states the following: “Laws permitting communications surveillance by the state must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.”
In conclusion, by implementing this mass surveillance project, the Egyptian government is not only violating Egyptian laws concerning privacy, it is actually violating the Constitution itself.
Officers performing surveillance will no longer require a judicial warrant to monitor individuals and invade their privacy, and the surveillance will not be limited to a timeframe or a necessity. This poses a serious threat to personal rights and freedoms, a threat that cannot be eliminated only by developing anti-spying technologies, but rather by changing the state policy, which aims to restrain the digital activism platforms.
This surveillance project is chiefly political, and it illustrates the state’s obsessions and fears regarding virtual interaction. Therefore, action against this project has to be of a political nature, as well.
Published by Mada Masr, September 29, 2014.