(THIS ARTICLE IS MACHINE TRANSLATED by Google from Norwegian)
[avatar user = ”jonwesselaas” /]
It happened again, in Brussels at Easter. It's going to happen again, somewhere else, in a slightly different way, with new perpetrators. It is in practice impossible to guard against. Each time, however, someone will demand that the political authorities do something to prevent it from happening again.
Politicians will want to meet such utopian expectations. Then the politically cheapest way of demonstrating action is chosen: to expand the powers of the police and security authorities to monitor the population, hoping that the next terrorist will be able to weed out before he becomes a terrorist.
When I write "cheapest", I mean that it does not cost more than any pen strokes adopted by law by the Storting. It apparently costs nothing, and it can be implemented overnight – and the majority of voters are satisfied. At least until the next time similar crime is committed, despite the legislation that would prevent it. Measures such as longer-term and resource-demanding prevention – whether in social conditions in one's own country or social and (geo) political conditions elsewhere in the world – are not as salable.
Free reins for monitoring. In the post-terrorist era in the United States in 2001, this logic has dominated our Western political systems. In Norway, through constant, piecemeal and shared law changes, it has led us to the fact that today the Police Security Service (PST) has what one of our leading criminal justice professors, Erling Johannes Husabø, has described as carte blanche to monitor large sections of the population at all times.
Already in 2004, we abandoned the requirement of suspected criminal activity as minimum conditions for conducting secret surveillance of someone's private communications. Since 2013, the PST has been authorized to conduct secret surveillance of individuals' private communications when there is reason to investigate whether someone is "preparing to prepare" for a future terrorist act. Simply put, it involves the monitoring of individuals who have not even decided in their own head to commit anything – to investigate if they can be about to develop such an intention. A hunt for potential intentions, or a hunt for thought. Can you go so much further than this without actually carte blanche?
Preventive data hacking. Yes, according to many. Including the Government, which on Friday before Easter presented another bill with proposals for further expansions. Now it is proposed, among other things, that the authorities in this hunt for thought should be able to hack into people's computers to monitor what they write there – for purely preventive purposes, before there is a suspicion of criminal activity. This has so far been considered to be contrary to the Constitution's prohibition against "house searches […], except in criminal cases", in the same way as room interception of private homes. To achieve this, the Government has made a mildly fresh reinterpretation of the Constitution. While the term "criminal cases" has so far been understood as a requirement that there is good reason to suspect a criminal offense, the Government now believes that the police will prevent future "criminal cases". At this point, the Constitution has set up a counter that separates the rule of law from the police state. The Government is now asking the Storting to remove this counter.
Now it is proposed, among other things, that the authorities in this hunt should be able to hack into people's computers to monitor what they write there – for purely preventive purposes.
In the service of terror. How did we get here? My experience is that it is due to a combination of at least two factors. The driving factor is the logic described in the introduction. To this extent, this logic has also been observed in European research in the field. The media also includes the dynamics of that logic, because the nature of terror contains a dramaturgy – the spectacular and the frightening – which is as created for media coverage. It is by far an inevitable "symbiosis" which, although not the media's motive, reinforces one of the main goals of terror: to create fear and panic. The inherent populism of elected political authorities makes it difficult for them to say no to proposals from police and security authorities that extended powers will be able to make the population safer. "Nobody" will be responsible for saying no on the day it slams again.
Lack of wholeness. The second factor, which is most prevalent in Norway, is that most people – including most Storting politicians – do not actually know or have an overview of how far-reaching the powers of the police and security authorities are in the first place. This is due to several things: partly that one must read and understand the content of and the connection between several legal provisions that are in several different laws, if one is to gain insight into these things. This is also due to the fact that amendments to these laws are often passed separately and uncoordinated, even though they are interrelated. During the period after 2001 – when all the decisive enlargements have been adopted piecemeal and divided – for example, there has never been a complete, public assessment of the overall picture, and what consequences it has for fundamental democratic values such as freedom of expression, privacy and general rule of law.
This means that people, including politicians, are constantly prescribing more of the same medicine, without knowing what doses are already effective, and without having investigated whether the medicine works or what its side effects are. It is simply not rational.
Builds down democracy. The latest proposal from the Government on data hacking is another example of this. It is presented without any prior public report that could have been the subject of public consultation and debate. Ironically, the bill was presented on the same day as the consultation deadline for the government-appointed Vulnerability Committee's report expired. The Vulnerability Committee just warned against promoting such bills without a thorough public inquiry and public debate.
This is how we are building down the same democracy that anti-terrorism legislation is claimed to protect. It must be possible to describe it as democratic self-harm.
Wessel-Aas is a lawyer, partner in Bing Hodneland law firm and chairman of the board of the International Law Commission, Norwegian department.
