The NSA, Tor, Vodafone and LIBE Committee Meet To Chat

Imagine the NSA, European Parliament, Tor and Vodafone having a civilized conversation about privacy. Considering that the ricochets from the Snowden affair are still reverberating on both sides of the Atlantic, this may seem implausible. But you better believe it: The IAPP Europe Data Protection Congress 2013 is featuring a panel discussion among representatives of all of the above, which I look forward to moderating.

On one side of the table, fresh from a keynote speech at the IAPP Privacy Academy where he called Louis Brandeis an old fogey, you have Stewart Baker. Baker, a partner at Steptoe and Johnson and former general counsel for the NSA, is no softie when it comes to privacy. He thinks the NSA is right to deploy whatever powers it has to fulfill its mission gathering foreign intelligence and fighting against terrorism. Last month, he proposed “a ‘no hostage-taking’ provision that bars negotiations—and counterterrorism intelligence-sharing—with any European Union member if the European Union … takes action to punish U.S. companies in an effort to regulate U.S. intelligence or law enforcement agencies.”

This week, he blamed the FISA courts for undermining national security pre-9/11, arguing that the court “built a ‘wall’ between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001. In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.” Harsh words no doubt.

On the other side of the table will be Jacob Appelbaum, a hacker and one of the drivers of Tor. Applebaum, an American currently living in Berlin, was recently involved in breaking out the Spiegel story unearthing the NSA’s tapping of Chancellor Angela Merkel’s private cellphone. He is an active member of the Cult of the Dead Cow hacker collective, who argues that every individual is entitled to a zone of communications privacy free from government surveillance.

Tor is by far the most robust privacy enhancing technology (PET). It is used daily by more than half a million users to anonymously browse the web, circumvent censorship and communicate with confidentiality. To achieve strong anonymity, Tor routes user connections through a series of Tor relays (three relays by default), with each relay operated by an individual or organization, including multiple universities and the Chaos Computer Club.

Privacy advocates argue that Tor is essential for the activities of freedom fighters and human rights activists from China to Iran. National security and law enforcement agencies portray Tor as the hub of the “darknet,” harboring activity such as child pornography, human trafficking and international terrorism. The recent NSA revelations have shown that powerful national security agencies, including the NSA and British GCHQ, have invested significant effort in trying to undermine Tor. The leaked NSA presentation entitled “Tor Stinks” states that the NSA and GCHQ are operating some nodes in the Tor network in order to collect surveillance information and undermine the privacy protections afforded by the system.

A third panelist is Ralf Bendrath, a privacy researcher, activist and senior policy advisor for Jan Philip Albrecht, the EU Parliament rapporteur for the General Data Protection Regulation (GDPR). Bendrath deserves credit for the massive undertaking accomplished by the 30-year-old, soft-spoken MEP from the Green party—producing a counterproposal to the EU Commission’s January 2012 GDPR draft and then taking on no less than 3,999 comments to deliver a consolidated compromise text a few weeks ago. Regardless of POV, this herculean achievement places Bendrath and Albrecht as authoritative voices on anything privacy related. Indeed, over the past few weeks the LIBE committee conducted an investigation into mass surveillance practices not only in the U.S. but also in EU member states, resulting in interesting findings.

Notably, Bendrath and Albrecht are responsible for inserting back into the GDPR a provision taken out from the commission draft, probably in light of intensive lobbying, concerning data flows from Europe to countries whose law enforcement authorities express an interest in such data (query if this does not apply to EU member states themselves). Specifically, Article 43a of the draft GDPR, provides: “Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer or disclosure by the supervisory authority.”

Article 43a will no doubt place companies such as Vodafone, represented on the panel by its CPO Stephen Deadman, between a rock and a hard place. On the one hand, such companies receive court orders and government requests for access to data, often coming pre-packed with a gag order. On the other hand, those companies will become subject to fines and penalties in an amount up to 100 million euros (or five percent of annual turnover, whichever is greater) for failing to obtain EU DPA authorization to comply with these requests.

The problems faced by Deadman’s Vodafone, which is the world's second largest mobile operator (behind China Mobile), with more than a half-billion subscribers worldwide, are common to the companies you probably work for. Addressing them is one of the goals of what promises to be a fascinating debate.

Written By

Omer Tene


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

We Need You! Call for Volunteers is Now Open!

Is 2017 your year? Advisory Board Leader and KnowledgeNet Chapter Chair opportunities abound! Learn more.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

NEW! Raise Staff Awareness

Equip all your data-handling staff to reduce privacy risk, with Privacy Core™ e-learning essentials.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

NEW! FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

IAPP-OneTrust PIA Platform

Simplify privacy impact assessments with this cloud-based customizable platform - free to IAPP members!

72% say privacy is now a board-level concern

Find out more about privacy governance in the IAPP-EY Annual Privacy Governance Report 2016.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

More Resources »

Time to Get to Work at the Congress

It's almost here! Thought leadership, a thriving community and unrivaled education...the Congress prepares you for the challenges ahead. Register now!

Plan for the Summit

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities. Registration opens December 19!

Intensive Education at the Practical Privacy Series

The Series is returning to DC, this year spotlighting Data Breach, FTC and Consumer Privacy, GDPR and Government privacy issues. It’s the education you need now!

Speak at the Symposium

The call for speakers is open! The Symposium returns to Toronto this Spring and programming is now underway. Looking to share your privacy prowess? Submit by November 20!

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»