Name: Allison Battoni Student n: S2577380 Supervisor: Dr. James Shires Second Reader: Dr. T. Tropina
Words: 18376 Date: 14/06/2020
To What Extent Are Private Digital Surveillance Companies
Complicit in Human Rights Violations Carried Out by the Consumer
Government?
The Case of the Italian Hacking Team and the Government of Sudan and the language of
complicity.
1 Abstract
This research aims at analyzing the notion of complicity of private digital surveillance companies in human rights violations carried out by the consumer government. It does so by looking at the case study of the Italian company Hacking Team and the government of Sudan. Within the wider academic debate between proponents and opponents of targeted surveillance technology, little attention has been given to the notion of complicity. Furthermore, Hacking Team’s continuous claims of non-involvement with Sudan, constitute the main purposes for the focus on complicity. Regarding complicity, two main theoretical frameworks are presented, a legal perspective and a moral view. The analysis of Hacking Team’s complicity with human rights violations in Sudan is therefore examined in relation to both perspectives. Both the international and the domestic Sudanese legal environments are studied through legal analysis. The outcome of such analysis presents a lack of complicity from the legal standpoint, at best an unclear understanding. On the other hand, the moral framework understands complicity as based on a moral spectrum, with differing levels and degrees of complicity. To tackle Hacking Team’s moral complicity, the discourse of the documents of company officials and surrounding actors is analyzed in relation to the five levels on the moral spectrum. The outcome demonstrates that the notion of complicity is present in both discourses by company officials and by the surrounding actors. As expected, the higher-level conceptualization of complicity is espoused by NGOs and activists whereas, the lowest level is espoused by company officials. However, the discourse analysis showcases how higher levels are also presented by company officials and lower levels by surrounding actors. This presents an original finding which sees complicity as a changing notion within the moral spectrum. This change is analyzed in relation to verbal and written answers by company officials and surrounding actors to various events and publications.
2 TABLE OF CONTENTS
Abstract ... 1
Introduction ... 3
Chapter 1: Theoretical Framework ... 7
Theoretical Framework of Complicity ... 9
Theoretical Framework Applied to the Responsibilities of Private Companies in Targeted Surveillance Sharing. ... 12
Chapter 2: Research Design and Methodological Framework ... 14
Chapter 3: Details of the Case ... 21
Chapter 4: Legal Analysis ... 25
International Legal Framework Analysis ... 26
Domestic Sudanese Legal Framework Analysis ... 28
Findings and Conclusion ... 30
Chapter 5: Moral Analysis ... 30
Legal Complicity ... 32
Collusion ... 34
Commission or Coercion ... 36
Assistance Without Knowledge and/or Questioning of Intentions ... 36
Benefit... 39
Bystander ... 41
Analysis of Change ... 43
Findings and Conclusion ... 45
Conclusion ... 46
Bibliography... 51
3 Introduction
Nowadays, the idea of being continuously closely surveilled and monitored is not only the subject of science fiction anymore. Governments do in fact have access to affordable and precise technologies that allow for broad programs of surveillance. The rise of the surveillant state can be seen as a product of various political and technological developments such as the rise of the Internet, computer interconnectivity, wireless technology, and the increased focus towards the fight against terror.1
A big role in the current surveillant society is played by private companies that develop and sell targeted surveillance technology to government agencies around the world. The use of these systems sold ranges from identification, tracking, monitoring individuals and their communications, spying, and policing.2 What is sold consists of a wide range of continuously developing sophisticated systems which are usually kept secret. Examples are equipment used to monitor internet communications on a national scale, malware that can turn one’s computer or phone’s camera on, phone monitoring, and many more. The buyers of such equipment are usually kept secret and exposed only by journalists, NGOs, and some expert data published by governments. The secrecy surrounding this topic stems from its controversial nature. Surveillance technology has been indeed developed in the name of security however, such technology gives the agent using it unprecedented ability to monitor activities of their subjects. It is easy to see how such “power” can be misused and give way to privacy and data protection violations. This secrecy is then aided by the weak regulatory and legal oversight in place. Private companies dealing with digital surveillance usually hide behind the notion of “national security consideration” and “confidentiality clauses” leading to little information reaching the public domain.3
With the rise of the surveillant state, concerns over the moral aspects of how surveillance is used, better known as ethics of surveillance, become more pressing.4 This research will indeed deal with this dimension of digital surveillance, more specifically the ethical concerns of selling and buying offensive intrusion and surveillance spyware and the notion of complicity. With the term offensive intrusion and surveillance spyware, it is meant a form of surveillance that is targeted
1 James Waldo, Herbert Lin, and Lynette I. Millett, Engaging Privacy and Information Technology in a Digital Age
(Washington, D.C.: National Academies Press, 2007): p. 349.
2 “The Global Surveillance Industry,” Privacy International, accessed December 6, 2019,
https://privacyinternational.org/explainer/1632/global-surveillance-industry
3 Likhita Banerji, “A Dangerous Alliance: Governments Collaborate with Surveillance Companies to Shrink the Space
for Human Rights Work,” Common Dreams, August 19, 2019,
https://www.commondreams.org/views/2019/08/19/dangerous-alliance-governments-collaborate-surveillance-companies-shrink-space
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towards a specific person of interest or group of interest. An example of such technology is Hacking Team’s Remote-Control System (RCS). Such technology enables the consumer to monitor the communications of the targeted internet user, decipher files and emails, record communications, and remotely activate the camera on various devices. The buying and selling of such technology are then the subject of this research.
Cases such as mass surveillance carried out in Xinjiang China targeted towards its Turkic Muslim minority, and the use of a malware technology made by the Israeli company NSO and used by the Mexican government to target dissident journalists, showcase how such technology has been used to conduct human rights violations. In the case of China, the government has employed the use of a mobile app that collects extensive data about the people in Xinjiang. This information is then used to identify behavior that is deemed suspicious. Research conducted by Human Rights Watch presents how such information collected on the lawful behavior of its citizens is then turned against them.5 By employing such targeted surveillance, the government has been accused of violating various human rights such as freedom of speech and expression. In the case of Mexico, after the murder of Mexican journalist Javier Valdez, spyware from the NSO has been used to target Valdez’s colleagues and wife. 6 The Mexican government has been accused of using this targeted spyware to repress investigative journalism, anti-corruption advocates, and forms of political dissent.
This research will thus discuss the topic of human rights violations conducted through targeted surveillance specifically in authoritarian and non-democratic countries. A wide extent of literature is nowadays available on the spread of surveillance technologies and practices by western democracies and how these contribute to a decline in democracy and the rise of authoritarian tendencies.78 This debate usually deals with issues of mass surveillance and not with targeted surveillance technology used as a tool for political repression. Therefore, the issues and debates concerning democracies and mass surveillance will not be discussed as it is outside of the scope of this research.
However, it is necessary, to generalize the topic, to take a quick look into the relationship between surveillance and human rights in democratic countries. A deeper insight into this link will
5 “China: How Mass Surveillance Works in Xinjiang,” Human Rights Watch, June 6, 2019,
https://www.hrw.org/video-photos/interactive/2019/05/02/china-how-mass-surveillance-works-xinjiang
6 John Scott-Railton et al., “Reckless VI: Mexican Journalists Investigating Cartels Targeted with NSO Spyware
Following Assassination of Colleague,” The Citizen Lab, April 29, 2019, https://citizenlab.ca/2018/11/mexican-journalists-investigating-cartels-targeted-nso-spyware-following-assassination-colleague/
7Marcus Michaelsen, Marlies Glasius and Transnational Configurations, Conflict Governance, "Authoritarian Practices
in the Digital Age: Introduction," International Journal of Communication: IJoC 12 (2018): pp. 3788-794.
8 Luke Harding, “Mass Surveillance Is Fundamental Threat to Human Rights, Says European Report,” The Guardian
(Guardian News and Media, January 26, 2015), https://www.theguardian.com/world/2015/jan/26/mass-surveillance-threat-human-rights-council-europe
5
be presented in the next chapter. In sum, human rights and democracy have a fundamental connection and intrinsic relationship. Therefore, the standards for upholding human rights can be considered different than in non-democratic countries where this intrinsic relationship is lacking. Surveillance technology sold to authoritarian governments can then lead and facilitate human rights violations, political oppression, and infringement of privacy. The use of such surveillance technology has a more disastrous effect in such countries as the government depends on political repression for their survival as opposed to democratic establishments. The abuse of such technology by certain governmental institutions subsequentially leads to the moral and ethical concern of such private surveillance sharing.9
On July 2015, a hack into the Italian Hacking Team (HT) database revealed that this company, an information technology company that sells surveillance capabilities to governments, had been selling RCS (remote control system) to Sudan’s National Intelligence and Security Service (NISS).10 As Privacy International states in its “Briefing for the Italian Government on Hacking Team”, the Association of Progressive Communications has observed how Sudan has used these surveillance and censorship technologies to suppress non-Islamic norms and government opposition.11 HT technologies have been used by the Sudanese government’s “Cyber Jihadist Unit” to target government opponents, journalists, human rights activists, and various youth groups. The Italian company did not directly inflict harm against anyone; however, its program was allegedly used by the NISS in various illegal activities and human rights violations.
This research aims then to answer the following question: To what extent are private digital surveillance companies complicit in human rights violations carried out by the consumer government? In order to study such a topic, this research will analyze the case study of the Italian Hacking Team and the government of Sudan, looking into the language of complicity surrounding such case.
Even if the technology used in this case is quite advanced and new, the principle of complicity is quite ancient and common, though without controversy either historically or contemporarily. Despite the actions of HT being widely criticized and discussed, few reports have focused on the
9 Adam Henschke, Ethics in an Age of Surveillance: Personal Information and Virtual Identities (Cambridge, United
Kingdom: Cambridge University Press, 2018).
10 David Gilbert, “Hacking Team Hacked: Spy Tools Sold to Oppressive Regimes Sudan, Bahrain and Kazakhstan,”
International Business Times UK, July 6, 2015, https://www.ibtimes.co.uk/hacking-team-hacked-spy-tools-sold-oppressive-regimes-sudan-bahrain-kazakhstan-1509460
11 Privacy International, Report: Briefing for the Italian Government on Hacking Team, April 15, 2015, available from:
https://privacyinternational.org/sites/default/files/2018-02/Briefing%20for%20the%20Italian%20Government%20on%20Hacking%20Team%27s%20surveillance%20exports. pdf
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issue of complicity itself and whether the company is deemed so in regard to the actions carried out by the Sudanese government. However, the reason why this research focuses on complicity is that the company did not claim any sort of responsibility or fault towards the actions carried out with the RCS technology by the consumer government of Sudan. On the contrary, initially, it claimed to not be selling at all to this country. The Italian HT presented itself dismissive towards concerns on human rights and privacy, generally viewing the legal frameworks for the product’s use as the responsibility of the consumer government. It is because of these claims of non-involvement that this research will focus on complicity. With the analysis of such notion, this research will assess indeed the extent of the company’s involvement and complicity.
Even if dealing with an ethical concept such as complicity, this research is not normative as it does not seek to find out if this is good or bad. This positive research aims at analyzing the relationship between the notion of complicity (theory) and the human rights violations conducted with the help of surveillance technology sold by the Italian company (empirical phenomenon).12 This will be further discussed in the research design and methodology chapter.
By looking into the notion of complicity and private digital surveillance sharing, this research falls within a wider academic debate between proponents and opponents of such activity. On one side, the proponents of surveillance technology and its sharing argue that it increases security while, on the other side, opponents decry its invasion of privacy and abuse. Despite the ever-increasing use of digital surveillance and a commercial surveillance system through the Internet of Things, little attention has been given to the notion of complicity in private digital surveillance sharing. This research then aims at shedding light on the topic which is relevant not only academically but also socially. More importantly, however, by using the concept of complicity, this paper aims at scrutinizing HT’s claim of non-involvement concerning Sudan’s human rights violations.
This research will start by introducing the theoretical framework used. In this chapter, the notion of complicity will be analyzed and explained, firstly, reviewing various pieces of literature that deal with the broader notion of complicity by looking at the legal and moral frameworks surrounding such concept. Then, in this chapter, a second section will go further and discuss the theoretical framework concerning specifically, the ethics of targeted surveillance sharing and the legal and moral frameworks surrounding such measures. The second chapter discusses the research design and methodological framework used to conduct this research. This section will focus more in depth on the case selection, data collection, analysis, and operationalization. The third chapter documents
12 Dimiter Toshkov, Research Design in Political Science, Political Analysis (New York, NY: Palgrave Macmillan,
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the details of the case presenting the various facts concerning HT’s business with Sudan and this country’s political and historical background. The fourth chapter concerns itself with the legal analysis of HT’s complicity. This chapter is subdivided into an international legal framework and a Sudanese domestic legal framework. The fifth chapter then focuses on the moral analysis of HT’s complicity by using discourse analysis. This chapter is divided into seven subchapters. The first one analyzes the notion of discursive legal complicity; the following five subchapters then analyze the different moral levels of complicity and lastly, a subchapter on the analysis of the notion’s change. Finally, the conclusion sums up the findings, delineates the broader implications of this research, its limitations and, further work.
Chapter 1: Theoretical Framework
To carry out the research analyzing the extent of HT’s complicity in human rights violations in Sudan, the theoretical framework of complicity and research into the ethics of private surveillance literature will be presented, helping define the main key concepts.
The ethical and moral concerns over private digital surveillance technology and sharing seem to grow together with the advancements in this field.13 With national security and protection being important state goals, questions and, concerns over the ethics and morals surrounding the private companies’ surveillance technology development and sales, remain strong in both the academic and societal realms. On one side, government and other actors claim such technology essential in issues such as the fight against terrorism, not overly intrusive, and a just price to pay for security. On the other side, opponents such as author David Reisman in his book “The Lonely Crowd”, suggest that surveillance technology does not increase security, rather provides the potential for injustice, invasion of privacy and societal division.14
Surveillance sharing agreements do not necessarily entail clear guidelines and there are no common and clear rules governing the arrangement of such sharing especially in the realm of targeted surveillance. Therefore, it is not surprising that new controversies have arisen in this field. A challenging notion that then is inherently linked to the ethics of targeted surveillance technology sharing is the notion of complicity, aiding harm. Even if instances of complicity have been many, a framework discussing complicity in the private digital surveillance sharing field is hard to come
13 Answers Ltd, “Ethical and Moral Issues in Surveillance Technology,” UK Essays (UK Essays, March 18, 2019),
https://www.ukessays.com/essays/security/ethical-moral-issues-surveillance-7571.php
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across. Therefore, in order to start defining a framework, a better grasp of the broader term complicity is needed.
It is firstly necessary, however, to define and demarcate some concepts such as human rights violations. According to the UN Charter and the Universal Declaration of Human Rights, human rights include the right of life, liberty and security of person, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, the right to privacy and many more.15 These are basic rights and freedoms that everyone is entitled to, based on their common humanity. In this paper, with the term human rights violations it is meant the infringement of such rights by officials and agents of the state, in this case, the government of Sudan and its agencies such as the NISS. More specifically, since this paper deals with targeted surveillance technology sharing and usage, the focus will be placed mainly on the violation of human rights such as freedom of opinion and expression, security of person, and the right to privacy.
It is also necessary, to generalize this research, to define the relationship between democracy and human rights versus the relationship between authoritarian states and human rights. Democracies and human rights have important conceptual and practical affinities. International human rights norms in fact require a democratic government. Art. 21 of the Universal Declaration states that “the will of the people shall be the basis of the authority of government.”16 Furthermore, as stated in the Discussion Paper published in 2013 by the Institute for Democracy and Electoral Assistance (IDEA), “Successful democratic governance must inevitably focus on promotion and protection of human rights and fundamental freedoms. For without this protection there can be no democracy in any meaningful sense.”17 Democracy and human rights share a commitment to the ideal of equal political dignity for all.18 As expressed in the work of David Beetham: “Linking Democracy and Human Rights”, the nation’s political system directly influences the standard of human rights enjoyed by the people.19 Democracy and human rights are then linked together. “Democracy relies on both distinctive political institutions and on the basic civil and political components of the human rights agenda. Human rights constitute an intrinsic, rather than extrinsic, component of democracy”.20
15 United Nations, The Universal Declaration of Human Rights, 1948-1998, (New York: United Nations Dept. of Public
Information, 1998), available from: https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
16 Ibid.
17 Kendra Collins and Zdzisław Kędzia, Democracy and Human Rights: The Role of the UN, United Nations:
International IDEA, September 2013, accessed April 14, 2020,
https://www.idea.int/sites/default/files/publications/democracy-and-human-rights-the-role-of-the-united-nations.pdf
18 Jack Donnelly, "Human Rights, Democracy, and Development," Human Rights Quarterly 21, no. 3 (1999): p. 619. 19 David Beetham, "Linking Democracy and Human Rights," Peace Review 9, no. 3 (1997): p. 351.
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However, the rights of democratic participation are but a small set of internationally recognized human rights, the struggle for human rights is much more than the struggle for democracy.
In opposition, human rights violations define authoritarianism. In authoritarian countries, the regime depends on the repression of political opponents for their survival. In fact, repression and violation of human rights are practices employed by authoritarian regimes to extend political and social control, with violations of human rights viewed as a coercive measure to achieve their goal. In such systems, surveillance technology can be used to carry out human rights abuse and undermine democratic development and privacy. There is no intrinsic relationship between non-democratic regimes and human rights. Now that these definitional necessities have been discussed, the theoretical framework of complicity will be presented.
Theoretical Framework of Complicity
Firstly, it is important to differentiate between two different perspectives (or school of thoughts) on the notion of complicity. On one side there is the legal definition of complicity which, according to the U.S. Legal Dictionary is the following: “Complicity in criminal law refers to a situation when someone is legally accountable or liable for a criminal offense, based upon the behavior of another.”21 This definition is relatively straightforward and is based on two main notions: the execution of an illegal act and distance. As Mary Manjikian discusses in her work “But My Hands Are Clean: The Ethics of Intelligence Sharing and the Problem of Complicity,” the legal definition then gives rise to a typology with three different legal perspectives of complicity: “(1) situations where Party A induces or causes someone else to commit an offense; (2) situations where Party A helps the other person to commit the offense; and (3) situations where Party A fails to prevent another party from committing an offense when legally required to do so.”22 Understanding the notion of complicity as something wrong and embedded within a legal framework, has been referred to as the traditional view.23 The methodology used to investigate cases of complicity within this legal framework is traditionally juridical inquiry.24 The basic assumption here is that complicity results from the involvement in acts of wrongdoing. This legal framework has quite a narrow understanding of such concept and a limited scope in understanding how to avoid it.
21 US Legal, Inc, “Complicity Law and Legal Definition,” Complicity Law and Legal Definition | USLegal, Inc.,
accessed December 8, 2019, https://definitions.uslegal.com/c/complicity/
22 Mary Manjikian, “But My Hands Are Clean: The Ethics of Intelligence Sharing and the Problem of Complicity,”
International Journal of Intelligence and CounterIntelligence 28, no. 4 (May 2015): p. 696.
23 Afxentis Afxentiou, Robin Dunford, and Michael Neu, Exploring Complicity: Concept, Cases and Critique (London:
Rowman & Littlefield International, 2017): pp. 66-68.
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The notion of a legal framework on complicity is also discussed in the book “On Complicity and Compromise” by Lepora and Gooding. 25 They describe the commentators of the legal perspective of complicity as mainly focused on the criminals themselves and their accomplices. The discourse surrounding the legal notion of complicity is then concerned with the accomplices acting “together with” and “sharing the purpose” of the criminal offenders.26 However, in their book, Lepora and Gooding are proponents of the second perspective or framework used to understand complicity, the moral framework. Here, the situation is more complex than the simple linear relation between complicity and wrongdoing that the legal framework implies.
In fact, on the other side, the notion of complicity is slightly different in the realm of philosophy and ethics. In the moral realm, the given definition of complicity is the participation of an agent in the morally wrongful act of another person, by encouraging or enhancing actions that violate basic moral standards and norms.27 The philosopher Gregory Mellema states how complicity revolves around the notion of enabling harm. Mellema writes how the primary actors in the wrongdoing are enabled to succeed by those complicit in such action. To then say that such an actor enabled the primary actor means that the production of harm could not have been carried out without the actions of the enabler and, that such person is aware that his or her actions might have this effect.28 This means that the actions of the enabler are a necessary condition for the act of wrongdoing carried out by the primary actor. However, according to Melemma’s work, not all cases of complicity are cases of enabling harm but can also be instances where the actor is facilitating harm or even condoning it.29 This perspective consequentially gives rise to a typology based on degrees of complicity, ranging from someone pressuring or forcing someone else to do something illegal (highly complicit) to someone failing to report an illegal action (passively complicit). It is based on a sliding scale and therefore, not all actions are equally serious. This perspective of a spectrum was originated by Thomas Aquinas in the thirteenth century and, still today maintains a significant relevance in the field of ethics. What all forms of complicity have then in common, according to the moral framework defined in Leopora and Gooding’s work, is that they are at least potential causal contributors to the wrongdoing of others.30 The amount and extent of the contribution then depend on various factors. This framework differs as it does not frame the world as a static binary (wrong or right) world but
25Chiara Lepora and Robert Goodin, On Complicity and Compromise (Oxford: Oxford University Press, 2013). 26 Ibid., p. 9.
27 Herlinde Pauer‐Studer, "Complicity and Conditions of Agency," Journal of Applied Philosophy 35, no. 4 (2018): p.
643.
28 Gregory Mellema, “Professional Ethics and Complicity in Wrongdoing,” Journal of Markets & Morality 11, no. 1
(2008): p. 94.
29 Ibid., p. 94.
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rather a dynamic social context in which to understand complicity, the surrounding contexts need to be taken into consideration.
Finally, when dealing with complicity, a challenging notion is that of intention. Some researchers argue that complicity can be attributed only if intentionally contributing to the illegal act.31 Therefore, if there is a lack of intention, it can be said that the second party, has misused the said good or service and is the sole bearer of the consequences. However, other scholars argue that it is possible to hold people accountable for how their products will be used and that you should be at least suspicious of the intentions of the recipient. This reasoning has its roots in biology, chemistry, and journalism, where researchers and journalists have to take into consideration how their work will be used by others.32
This moral framework is then, as previously mentioned, a spectrum with differing levels of complicity. By looking into literature such as Mary Manjikian’s article, Lepora and Goodwin’s book and, Cameron and Chetail’s book, five main theoretically derived categories can be defined within this spectrum.33 These categories are the following, moving from highly complicit to passively complicit: collusion, commission or coercion, assistance without the knowledge and/or questioning of intention, benefits, and bystander. Firstly, the highest level of complicity deals with collusion. In this case, both parties are fully knowledgeable of each other’s intentions and actions. They are equal players and engage in the wrongdoing together. Both are fully complicit. Secondly, one party commissions or coerces a second party to carry out the wrongdoing. In this case, the first party has more power over the second and can be classified as more guilty. However, the fact that the second party was coerced or commissioned does not absolve them of their complicity. Thirdly, there is the assistance of an actor without the knowledge or questioning of the primary actor’s intentions. The assistance provided by the actor enables the wrongdoing however, they were not aware of the intentions of the wrongdoer. This still makes the actor complicit in the wrongdoing, however, to a lesser extent than in collusion and commission. The same goes for a lack of questioning of the intentions of the wrongdoer. Fourthly, this level deals with the situation when a party does not participate or assist in the wrongdoing however, it enjoys the benefits and results of such action. Therefore, this party is still considered complicit by the enjoyment of the benefits received. Lastly, there is the bystander. In this case, an actor fails to report a wrongdoing and does nothing about it.
31 Christopher Kutz, Complicity Ethics and Law for a Collective Age, Cambridge Studies in Philosophy and Law
(Cambridge; New York: Cambridge University Press, 2000): p. 122.
32 Hans-Jörg Ehni, "Dual Use and the Ethical Responsibility of Scientists," Archivum Immunologiae Et Therapiae
Experimentalis 56, no. 3 (2008): pp. 147-52.
33 Lindsey Cameron and Vincent Chetail, Privatising War Private Military and Security Companies under Public
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The actor is then considered passively complicit. This categorization of the moral spectrum will be the base for the discourse analysis that will be carried out in Chapter 5.
Theoretical Framework Applied to the Responsibilities of Private Companies in Targeted Surveillance Sharing.
The two frameworks previously mentioned are fundamental in defining an analytical account of complicity. Therefore, this subchapter will identify more specifically the legal and moral frameworks surrounding the responsibilities of private companies in targeted surveillance sharing.
When discussing the legal framework, it is necessary to first address the inefficiency of international law as a source of regulation on issues concerning surveillance and more specifically, targeted surveillance. The international community does indeed find itself in between two developments. On one side, the past decade has seen an increase in electronic communications and technological advancements that enhance such online and electronic communication all around the world. On the other hand, the ability of institutions and actors, through further technological development, to trace such communications.34 Further, with the developing discourse on the war on terror and the rise in non-state actors posing as security threats, the use of surveillance and targeted surveillance as a counter-terrorism tool has been employed by governments worldwide. Surveillance sharing has then flourished seamlessly across borders, with the selling of such technologies by private actors becoming a profitable and secretive market.35 The role of international law is then critical but, because of the complexity of such an environment, it has proven quite inefficient.36
A valid source that defines the terms of legal responsibility and complicity of a company in human rights violations is the Report by the International Commission of Jurists. In this report, the authors offer a legal framework under which companies can be deemed legally responsible under criminal and/or civil law when complicit with human rights violations and provide pointers on actions and situations to avoid.37 Furthermore, from a legal standpoint, the General Assembly in Resolutions 68/167 and 71/199 have condemned unlawful or arbitrary surveillance and interception of
34 Ashley S. Deeks, "An International Legal Framework for Surveillance," Virginia Journal of International Law 55,
no. 2 (2015): p. 367.
35 “The Global Surveillance Industry,” Privacy International, accessed March 13, 2020,
https://privacyinternational.org/explainer/1632/global-surveillance-industry
36 “How Governments Collaborate with Surveillance Companies to Shrink the Space for Human Rights Work,”
Amnesty International, accessed April 13, 2020, https://www.amnesty.org/en/latest/research/2019/08/a-dangerous-alliance-governments-collaborate-with-surveillance-companies-to-shrink-the-space-for-human-rights-work/
37 International Commission of Jurists (ICJ), Report of the ICJ Expert Legal Panel on Corporate Complicity in
International Crimes: Corporate Complicity & Legal Accountability. Volume 3: Civil Remedies, Vol. 3, 2008: p. 8, available at: https://www.refworld.org/docid/4a7842a32.html
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communications as acts that infringe upon our fundamental human rights.3839 These Resolutions indeed express deep concern over the negative impact that surveillance and interception of communications have on human rights. People’s rights must be guaranteed offline and online.40 Such Resolutions call upon the States to protect the right to privacy in digital communication. However, actions such as carrying out targeted surveillance and violating the rights to privacy of certain individuals are still carried out without constraint, aided by the secretive nature of such operations. Another legal framework used to address issues dealing with the private surveillance industry is export controls, an area of regulation that concerns the export of goods, software, and technology. An important agreement that defines then the legal background of targeted surveillance is the Wassenaar Agreement which expects member states to apply export controls to all items that are considered dual-use goods and technologies.41 Formally established in 1996, it aims at promoting greater responsibility among its members and was created to be an open and transparent system based on cooperation and trust. External assessments have however found this Agreement to be minimally effective, with economic factors motivating countries to exploit such Agreement.42
In regards to the moral framework, the targeted surveillance industry can be seen in relation to the war on terrorism and defended by some as a price to pay for confronting terrorism. These justifications and changing environments influence the moral authority to conduct targeted surveillance and complicity. These developments have challenged the fundamental right of privacy, essential for living in dignity and security. Many of these surveillance measures grant more power to the security services to intrude in people’s daily lives and centralize power in the hands of the executive.43 As discussed previously, this framework sees complicity as a spectrum based on the notion of enabling harm. However, the logic of war and prevention which dominate the security discourse since 9/11, has led to a normalization of problematic practices such as the use of spyware and surveillance technologies, changing the measure of what is considered acceptable in the name of
38 General Assembly Resolution 68/167, The right to privacy in the digital age, A/RES/68/167 (21 January 2014),
available from https://undocs.org/A/RES/68/167
39 General Assembly Resolution 71/199, The right to privacy in the digital age, A/RES/71/199 (25 January 2017),
available from https://undocs.org/en/A/RES/71/199
40 “Right to Privacy in the Digital Age,” OHCHR, accessed April 13, 2020,
https://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx.
41 “About Us,” The Wassenaar Arrangement, accessed March 4, 2020, https://www.wassenaar.org/about-us/
42 Austin Lewis, “The Effectiveness of the Wassenaar Arrangement as the Non-Proliferation Regime for Conventional
Weapons,” Center for International Security and Cooperation, Sandford University, 2015: p. 52.
43 “Human Rights in Europe Should Not Buckle under Mass Surveillance,” Commissioner for Human Rights, accessed
April 14, 2020, https://www.coe.int/en/web/commissioner/-/human-rights-in-europe-should-not-buckle-under-mass-surveillance
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security and challenging moral norms such as the respect of human rights.44 In fact, policies for combating terrorism have changed, embracing also drastic measures due to the shift in what is perceived as legitimate in this “fight”. Furthermore, with the justification of conducting counterterrorism measures, some actors, have been able to carry out human rights violations and the prosecution of political opponents. These controversial measures such as indiscriminate and targeted surveillance have been, even if not publicly, tolerated even by European democracies.45 This worldwide campaign of the war on terror has led to a normalization of traditionally problematic practices. Unfortunately, this current conception of the war on terror is still ongoing and not likely to end soon, leading to a systematic erosion of human and civil rights. The moral authority to conduct such targeted surveillance practices and complicity is then linked to these various changing environments surrounding surveillance.
Chapter 2: Research Design and Methodological Framework
In this chapter, the research design and methodological framework that will be used in this research are presented. The focus will be placed on the variables, the research design, the case selection, the data collection, data analysis, and operationalization.
By conducting legal analysis and discourse analysis on respectively the legal framework and the moral framework of complicity, this research will measure the involvement of HT in human rights violations in Sudan by the respective government. Even if dealing with an ethical concept such as complicity, this research is not purely normative as it does not seek to find out if this is good or bad. It is normatively grounded but is still positive research as it aims at analyzing the relationship between the notion of complicity (theory) and the human rights violations conducted with the help of surveillance technology sold by the Italian company (empirical phenomenon).46 The term complicity is relevant indeed to a moral norm which is, however, espoused by others such as the activists, the NGO groups, the private company officials, and the international community surrounding the case study. Therefore, the inductive logic of this study provides the opportunity to generate a theory as, starting from our empirical single case at hand, the work will build up to an abstract theoretical proposition involving the notion of complicity.47
44 Johannes Thimm, From Exception to Normalcy: The United States and the War on Terrorism, SWP Research Paper
7, October 2018, available from:
https://www.swp-berlin.org/fileadmin/contents/products/research_papers/2018RP07_tmm.pdf
45 Ibid., p. 5.
46 Toshkov, Dimiter. Research Design in Political Science, pp. 23-24. 47 Ibid., p. 38.
15
To conduct the analyses and reach new theoretical prepositions, this study uses a single case study design. An in-depth study of a single case, as Toshkov states in his book: “Research Design in Political Science”, is indeed a recommended method when dealing with generating novel hypothesis and inductive research.48
The reason for choosing Sudan as the case study instead of other authoritarian countries that have used HT’s product in an unethical manner is that as Chris Soghoian, a privacy activist and lead technologist for the American Civil Liberties Union has said: “Sudan is one of the most strictly embargoed countries in the world. If HT believes they can lawfully sell to Sudan, they believe they can sell to anyone.”49 The atrocious and continuous civil wars (including the Darfur genocide), human rights violations and government oppression that has plagued Sudan since its independence, have led to the globally recognized status of “not free” country.50 This challenging political and historical background of Sudan constitutes central reasons for choosing this HT client as the case study. Furthermore, the continuous denial by the company of involvement and business with Sudan highlights the importance of this research on the concept of complicity. Therefore, this can be seen as an extreme instance case study where the limit of the existing theory can be tested. Furthermore, extreme case sampling is especially appropriate when dealing with research on crime. The findings of this extreme case study could then be used and applied to similar or less extreme case studies. The fact that Sudan is such an extreme case study (being heavily embargoed and being notoriously authoritarian), makes the case a so-called “easy” case in which to then develop the theoretical framework. This means a case study with characteristics that should facilitate as opposed to hinder the generation of said theory.51
The time period that will be analyzed is between and including 2012 and 2014. The reasoning behind this choice is because the contract between HT and the NISS started in June 2012 with the first invoice on the sale of RCS in September of that same year. Then, in 2014 HT’s business with Sudan halted. The reasoning behind this cessation will be discussed more in-depth in Chapter 3. Therefore, between and during 2012 and 2014 HT was actively pursuing business with the NISS, making this time period the focus of the analyses dealing with the company’s complicity.
The world of private surveillance sharing is still very secretive and research into the ethical and moral dimension of such practice is missing. In fact, only after a hack into HT’s database was the
48 Ibid., p. 38.
49 Andy Greenberg, “Hacking Team Breach Shows a Global Spying Firm Run Amok,” Wired (Conde Nast, June 3,
2017), https://www.wired.com/2015/07/hacking-team-breach-shows-global-spying-firm-run-amok/
50 “Sudan,” Freedom House, accessed April 15, 2020, https://freedomhouse.org/country/sudan/freedom-world/2020 51Aaron Rapport, "Hard Thinking about Hard and Easy Cases in Security Studies," Security Studies 24, no. 3 (2015): p.
16
list of recipients of their surveillance technology leaked. This leak almost sent the company in total failure after the proof of selling to governments known to have little regard for human rights and privacy was exposed. These leaked emails are another fundamental reason why HT was chosen as a case study as they are accessible to the public and such information is usually harder to come across in other private digital surveillance companies.
Because of the nature of such case study, the collection method will be mainly document analysis. Other methods such as interviews are indeed not feasible as the intelligence community involved is not only far away geographically and secretive in nature but also unlikely to discuss the topic under research. The aim of this research is then to conduct both legal analysis and discourse analysis on the data and texts collected pertinent to both the legal and moral frameworks of complicity. The analysis is therefore twofold, dealing first with the complicity of the Italian HT concerning the legal framework and secondly to the complicity of the company from the moral framework’s point of view. Through these analyses, the answer to the research question will be achieved.
Before the legal and moral analyses will be conducted, a chapter will be dedicated to the details of the case. This chapter is necessary in order to delineate the case study and give the reader the necessary information to assess the legal and moral backgrounds. Once the details of the case have been presented, the research will move forward and start with the legal analysis and then the discourse analysis. It is important to note that the data used in the Details Chapter has a factual function and not an analytical one. This means that in some instances the data used in Chapter 3 is the same as the one that will be used in the analyses however, the function and purpose it holds are different. In one case it is used to shed information and in the other to conduct either a legal or discourse analysis.
The legal analysis of complicity will be divided into two subcategories, the international legal framework and, the Sudanese domestic legal framework. By analyzing the data pertinent to these two legal environments, the legal complicity of HT will be assessed. Various sources will be used to carry out this analysis. Primary sources such as General Assembly Resolutions will be used in relation to the international legal framework in place. Another primary source is legal documents such as the Wassenaar Agreement which defines the international structure on export controls of dual-use goods and technology. Pertinent to the legal framework is also the various UN and EU Resolutions dictating the Sudanese arms embargo regime. Finally, a key primary source is the Official Report of the
17
Security Council, the Final Report of the Panel of Experts on the Sudan established pursuant to resolution 1591 (2005).52
Focal to both the legal and moral analyses as a main primary source of data are the emails of the malware vendor. These emails and data were published on Wikileaks in July 2015 and are therefore accessible to the public.53 There are many emails published on WikiLeaks about HT however, in regards to the legal analysis, the emails collected are two. The first email contains the answer to the UN Panel of Experts from the Permanent Mission of Italy dated 12th of January 2015.54 This email was found on WikiLeaks in the HT archives by looking for the keyword “Lettera alla Dott.ssa Taschini”.55 The second email collected for the legal analysis is an internal email chain titled “R: R: Reference S/AC.47/2015//PE/OC.4 - Jan. 23rd, 2015”.56 This email deals with the role and function of HT with the UN Panel of Export’s inquisition and it was found by using the keyword “arma”.57 In regards to the Sudanese domestic legal framework, a primary source are also Official Reports from institutions such as the Association for Progressive Communications and Reports by NGOs such as Sudan Democracy First.5859 These reports are necessary to understand and analyze the legal framework present in Sudan. Other primary sources are legal documents emitted by the Sudanese government such as the Cybercrime Act of 2007.60
Both subcategories then use secondary sources such as newspaper articles and online websites, these can help clarify and understand the case study at hand. Various news articles were indeed published on HT’s actions following the breach of information in 2015.61 Potential for editorial
52 International Commission of Jurists (ICJ), Report of the ICJ Expert Legal Panel on Corporate Complicity in
International Crimes: Corporate Complicity & Legal Accountability. Volume 3: Civil Remedies, 2008, Vol. 3, available at: https://www.refworld.org/docid/4a7842a32.html.
53 WikiLeaks, accessed December 10, 2019, https://wikileaks.org/hackingteam/emails/ 54 “Risposta Ministero Esteri/MiSe/ONU”, WikiLeaks, accessed May 16, 2020,
https://wikileaks.org/hackingteam/emails/emailid/50960
55 Translated it means: “Letter to Doctor Taschini”.
56 “R: R: Reference S/AC.47/2015//PE/OC.4 - Jan. 23rd, 2015”, WikiLeaks, accessed April 18, 2020,
https://wikileaks.org/hackingteam/emails/emailid/50896
57 Translated it means “weapon”.
58 Association for Progressive Communications (APC), Coalition submission to the Universal Periodic Review of
Sudan, September 2015, available from: https://www.apc.org/sites/default/files/Coalition-Sudan-UPR-submission-FINAL_0.pdf
59 Lutz Oette and Mohammed Abdel-Salam Babiker, “The Rule of Law and Human Rights in Sudan: challenges and
prospects for reform,” Institutional Reforms Series (2), Sudan Democracy First Group (2014): p. 3, available from:
http://www.democracyfirstgroup.org/News/Rule%20of%20Law%20and%20Human%20Rights%20ENGLISH_FINAL. pdf
60 Cybercrime Act 2007,
https://www.unodc.org/res/cld/document/sdn/2007/cybercrime_act_2007_html/Sudan_Cybercrime_Act_2007_EN.pdf
61 Cora Currier and Morgan Marquis-Boire, “A Detailed Look at Hacking Team's Emails About Its Repressive Clients,”
The Intercept, July 7, 2015, https://theintercept.com/2015/07/07/leaked-documents-confirm-hacking-team-sells-spyware-repressive-countries/
18
bias must always be then taken into consideration when looking into newspaper articles and online information.
This qualitative data collected will then be analyzed using a legal analysis.62 When conducting legal analysis, firstly it is necessary to state the facts of the case. In this research, the facts of the case will be presented in Chapter 3. Secondly, the issue that wants to be resolved needs to be identified. In this case, as presented in the Introduction, the issue in place is the legal complicity of HT in human rights violations in Sudan. Then, the existing rule of law and legal environment applicable to HT and Sudan needs to be presented. With the facts, issue, and rule of law presented, the analysis can be conducted by applying the legal framework in place to the facts. As a result of this analysis, it will be possible to conclude in regard to the legal complicity of HT.
On the other hand, to assess the moral complicity of HT, the data collected will be first coded and then analyzed using discourse analysis. A main primary source is also here, as stated already above, the leaked emails of the malware vendor. There are various emails leaked that showcase HT’s involvement with authoritarian countries and human rights violators.63 However, in regards to this research specifically, the emails collected are only the ones relevant to business with Sudan, the UN Panel of Experts, issues with NGOs and media reports, and relevant to the time frame under analysis. By using such guidelines and keywords such as “Sudan”, “RCS” and “human right violations”, ten emails and email chains have been selected to be used in the analysis.64
Another primary source that is focal to the moral analysis is NGO Reports. Reports such as Privacy International’s “Briefing for the Italian Government on Hacking Team’s surveillance
62 “IRAC and CRRACC,” CUNY School of Law, January 7, 2019,
http://www.law.cuny.edu/legal-writing/students/irac-crracc/irac-crracc-1/
63 Bill Marczak et al., “Hacking Team and the Targeting of Ethiopian Journalists,” Citizen Lab, February 12, 2014,
https://citizenlab.ca/2014/02/hacking-team-targeting-ethiopian-journalists/
64 “Fwd: HACKING TEAM SRL - applicazione art.4, Reg. CE 428/2009 (clausola catch all),” WikiLeaks, accessed
May 20, 2020, https://wikileaks.org/hackingteam/emails/emailid/177344
“R: R: Reference S/AC.47/2015//PE/OC.4 - Jan. 23rd, 2015,” WikiLeaks, accessed May 20, 2020,
https://wikileaks.org/hackingteam/emails/emailid/50945
“Re: I: Lettera al Mise,” WikiLeaks, accessed May 20, 2020, https://wikileaks.org/hackingteam/emails/emailid/147133
“Re: IMPORTANT: Sudan CitizenLab Request,” WikiLeaks, accessed May 20, 2020,
https://wikileaks.org/hackingteam/emails/emailid/12766
“Re: Slate Coverage mentioning HT,” WikiLeaks, accessed May 20, 2020,
https://wikileaks.org/hackingteam/emails/emailid/164953
“Re: Slate Coverage mentioning HT,” WikiLeaks, accessed May 20, 2020,
https://wikileaks.org/hackingteam/emails/emailid/174340
“Re: Sudan Follow-Up,” WikiLeaks, accessed May 20, 2020, https://wikileaks.org/hackingteam/emails/emailid/12758
“Catch All HACKING TEAM 30 OTT 2014 SCAN”, DocumentCloud, accessed May 20, 2020,
https://www.documentcloud.org/documents/2164691-catch-all-hacking-team-30-ott-2014-scan.html
H.T. Srl, Comunicazione 13 01 2015, January 13, 2015, available from:
https://www.documentcloud.org/documents/2164701-ht-srl-comunicazione-13-01-2015.html
“Report Ht S R L Paesi Allegati 14 05 2014”, DocumentCloud, accessed May 20, 2020,
19
exports” and the previously mentioned Association for Progressive Communications “Universal Periodic Review of Sudan” are indeed central to the discourse analysis of the moral framework.65 Furthermore, Reports by the Citizen Lab also play a fundamental role as they have conducted extensive research into HT and the selling of spyware to governments. Citizen Lab is an interdisciplinary laboratory at the University of Toronto that focuses on issues such as information control, network surveillance and filtering, looking at the security of the Internet and the threat to human rights. Respectively the Reports used by Citizen Lab are: “Mapping Hacking Team’s “Untraceable” Spyware” and “Open letter to Hacking Team”.66 Lastly, news articles such as La Repubblica, L’Espresso “Gli affari di Hacking Team in Sudan: vendeva tecnologia ai servizi segreti” and online articles by activists such as “A Detailed Look At Hacking Team’s Emails About Its Repressive Clients” by The Intercept, are valid secondary sources used. 67 As always, however, editorial bias will be taken into consideration.
To conduct the moral analysis however, the data needs to be first coded. Coding is a way of categorizing the documents and texts in order to establish a framework of thematic ideas about it.68 In this case of qualitative research, coding is necessary to define what the data that will be analyzed is about. The coding approach that this research employs is a theoretically derived one. By theoretically derived coding, it is meant that the data is approached with a previously established theoretically derived system of codes when looking at the concepts and ideas in the text. The codes are derived from the previously presented moral framework of complicity. To analyze through discourse analysis the moral complicity of HT, the data will be coded according to the five categories of complicity identified on the moral spectrum. These are, in order from highly complicit to passively complicit: collusion, commission or coercion, assistance without knowledge or questioning of intention, benefits, and bystander. These all fall under the general code of moral complicity.
65 Privacy International, Report: Briefing for the Italian Government on Hacking Team, April 15, 2015, available from:
https://privacyinternational.org/sites/default/files/2018-02/Briefing%20for%20the%20Italian%20Government%20on%20Hacking%20Team%27s%20surveillance%20exports. pdf
Association for Progressive Communications (APC), to the Universal Periodic Review of Sudan, September 2015, available from: https://www.apc.org/sites/default/files/Coalition-Sudan-UPR-submission-FINAL_0.pdf
66 Bill Marczak et al., “Mapping Hacking Team's ‘Untraceable’ Spyware,” The Citizen Lab, July 8, 2017,
https://citizenlab.ca/2014/02/mapping-hacking-teams-untraceable-spyware/
Professor Ronald Deibert, “Open Letter to Hacking Team,” The Citizen Lab, March 9, 2015,
https://citizenlab.ca/2015/03/open-letter-hacking-team-march-2015/
67 Stefania Maurizi, “Gli Affari Di Hacking Team in Sudan: Vendeva Tecnologia Ai Servizi Segreti ,” l'Espresso, July
29, 2015, https://espresso.repubblica.it/internazionale/2015/07/29/news/niss-i-servizi-segreti-del-sudan-1.223034 Cora Currier and Morgan Marquis-Boire, “A Detailed Look at Hacking Team's Emails About Its Repressive Clients,” The Intercept, July 7, 2015, https://theintercept.com/2015/07/07/leaked-documents-confirm-hacking-team-sells-spyware-repressive-countries/
68 Graham R. Gibbs, "Thematic Coding and Categorizing," In Analyzing Qualitative Data, 38-55, Qualitative Research
20
Furthermore, a code pertinent to the language of legal complicity is also present as a separate code group.
The coding of the data into these theoretically derived themes is done using the Qualitative Data Analysis Software Program ATLAS.ti.69 In order to facilitate the coding process within this software, the data collected is uploaded as Word Documents or PDF files. Once the qualitative data has been collected and coded it will then be analyzed through discourse analysis.
Discourse analysis is about analyzing language critically. Language is used as a shaping force. It is through the analysis of the language used by the actors involved and surrounding the case study that the notion of complicity will be defined. It is indeed an inductive method that focuses on certain terms, how actors understand such terms, and how it can change the understanding of some phenomenon. Discourse analysis focuses on the process of meaning-making and knowledge production. The definition of such a method is given by Foucault as “Practices that systematically form the objects of which they speak”.70 The aim of discourse analysis in this research is to look at how actors interpret, understand, and espouse a phenomenon. Specifically chosen words can then express the position of the writer or speaker and the effects that want to be achieved. The notion of complicity and what it exactly entails has been the subject of various studies, however, to analyze such notion through the discourse surrounding it gives the opportunity to generate a new theoretical proposition not commonly explored.
The analytical categories in which this paper focuses its discourse analysis are then the moral categories of complicity and how (if even), they are expressed. It is important to note that throughout the analysis there will be a differentiation between what surrounding actors express, and what company officials express. By the term surrounding actors, this research means the NGOs and activists that concern themselves with the topic at hand, whereas the company officials are HT’s workers and representatives. More specifically, the surrounding actors refer to the writers of the collected data by the Citizen Lab, Privacy International, the APC, the Intercept, and L’Espresso.
The outcome will be an understanding of the word complicity’s meaning from both the legal and moral theoretical perspectives. This will allow to formulate an answer to the research question; the extent to which the Italian HT is considered complicit in the violations conducted in Sudan. This study then also attempts to detect and illuminate how language can then be a tool through which concepts, decisions, and opinions are defined.
69 ATLAS Report of Coded Data in Annex I.
70Michel Foucault, Sheridan Sheridan-Smith and Alan Sheridan-Smith, The Archaeology of Knowledge and The
21 Chapter 3: Details of the Case
This Chapter is assigned to lay out the facts of the case. As mentioned in the methodology the time period under analysis is the one between and including 2012 and 2014 and the purpose of the sources used in this Chapter is a factual one, not analytical. However, in order to analyze events in this time period, an understanding of what was happening beforehand is also necessary. Therefore, this Chapter will start by looking at the history of Sudan, its relationship with the internet and censorship, its relationship with HT, and what was happening between 2012 and 2014.
Ever since it’s independence in 1956, the country of Sudan has been ruled by unstable parliamentary governments and military regimes.71 Since independence, ethnoreligious differences in the country (mainly between north and south), natural resources, and government exploitations have led to devastating civil wars. On the wave of what is classified as the Second Sudanese civil war (1983-2005), Colonel Omar al-Bashir, with the support of the National Islamic Front (NIF), replaced the government in 1989 through a military coup.72 The new military government suspended political parties and introduced the Islamic Shari’a law on the national level. This new military government also proceeded to purge the army, the police, and the civil administration reshaping all of the state’s apparatus. Omar al-Bashir then, with the legislative and executive power in his hands started his 30-year authoritarian rule over the country. Sudan became indeed from 1989, up until the Sudanese Revolution which started at the end of 2018, a one-party authoritarian state governed by the National Congress Party.
The civil war did not end with the military coup but kept causing millions of people to be displaced, starved, and deprived of education and health care. Progress in regards to the civil war was made by al-Bashir in 2003 and 2004 when peace talks between the South and the government started to be successful and were formalized into a Comprehensive Peace Agreement in 2005.73 As the situation in the south was somewhat stabilizing, in 2003 another conflict broke out this time in western Sudan in the region of Darfur. This conflict is internationally known as the Darfur genocide.
A report by Human Rights Watch documents how Sudanese government forces have participated and overseen massacres, execution of civilians, burning of villages and towns, and
71 “Sudan Profile - Timeline,” BBC News (BBC, September 10, 2019),
https://www.bbc.com/news/world-africa-14095300
72 “Sudan: 1985 – 2005,” Mass Atrocity Endings, accessed May 12, 2020,
https://sites.tufts.edu/atrocityendings/2015/08/07/sudan-2nd-civil-war-darfur/
73 Peace Agreements & Related, Comprehensive Peace Agreement (Sudan), 9 January 2005, accessed May 12, 2020,
22
forcible depopulation of areas inhabited by Fur, Masalit, and Zaghawa ethnic groups.74 These actions of the Sudanese government have been defined as ethnic cleansing and crimes against humanity, leading to what has been labeled as the first genocide of the 21st century. 75 International media access to Darfur was restricted and limited reports about the conflict were allowed in the national press. The International Criminal Court has since indicted several people for crimes against humanity, rape, forced transfer, and torture. In 2007 a hybrid United Nations and African Union peacekeeping mission (UNAMID) was established in Darfur to bring stability to the war-torn region.
Furthermore, as the outcome of the Comprehensive Peace Agreement of 2005 previously mentioned, in January 2011 southern Sudan voted for independence through a referendum.76 Even if President Omar al-Bashir acknowledged such results, the road to independence was littered with unresolved issues concerning oil revenues, citizenship law, and border disputes. Also, southern Sudan kept suffering severe underdevelopment, poor governance, and ethnic divide. Nonetheless, in July 2011, South Sudan succeeded from Sudan and became the latest globally recognized state. Independence did not however bring peace to the country as in 2013, a civil war broke out.77
While various world governments have been identified as HT’s clients, this brief political and historical overview of Sudan up until 2012, goes to show why this country is an important case to analyze. The level of violence, harm, and oppression inflicted on the population by its government is in fact extreme and globally recognized. The country of Sudan has indeed been classified still today as “not free”, with very little civil and political rights. 78
Furthermore, this country and its government have historically repressed fundamental human rights such as freedom of speech and press. In 2007 for example it established the Informatic Offences (Combating) Act which addressed various limitations on speech, usage of cyberspace, and criminalized the establishment of websites that criticize the government and threatened such behavior with fines and prison sentencing.79 As documented in the stakeholder report to the second UN Human Rights Council Universal Periodic Review (UPR) of Sudan by the Association of Progressive Communications and Sudanese civil society and human rights organizations, Sudan’s government
74 Human Rights Watch, Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan,
May 7, 2004, A1606, accessed May 12, 2020, https://www.hrw.org/reports/2004/sudan0504/
75 “Sudan: Government Commits 'Ethnic Cleansing' in Darfur,” Human Rights Watch, April 17, 2015,
https://www.hrw.org/news/2004/05/07/sudan-government-commits-ethnic-cleansing-darfu
76 “South Sudan Referendum: 99% Vote for Independence,” BBC News (BBC, January 30, 2011),
https://www.bbc.com/news/world-africa-12317927
77 “South Sudan Country Profile,” BBC News (BBC, August 6, 2018),
https://www.bbc.com/news/world-africa-14069082
78 “Sudan,” Freedom House, accessed April 15, 2020, https://freedomhouse.org/country/sudan/freedom-world/2020 79 The Informatic Offences (Combating) Act, 2007,
23
has dictated censorship of the media in the country.80 The oppressive atmosphere in which journalists worked was supported by wide-range government powers, laws, and regulations restricting Sudanese people’s access and influence in the media. In June 2009, the Press and Publications Act was endorsed by the parliament and focused on the role and functions of the National Press Council (NPC).81 The NPC with this Act was granted the power to overview media and impose administrative sanctions. Furthermore, in regards to the press, the APC Report states how the National Intelligence Security Services (NISS) has continued to harass, arrest, intimidate and torture journalists and vocal critics of the government.82
With the social and political changes brought forward in the neighboring countries by the Arab Spring, the government of Sudan started to impose even stricter restrictions to maintain political control and repress opposition.83 In this time period, following the Arab Spring (2011 forward), the NISS established an internet filtering unit called the “Cyber Jihadist Unit” to conduct online defense operations.84 The NISS also imported RCS spyware to allegedly manipulate and spy on the opposition, journalists, human rights activists, and various youth groups. This information was published in a report by the Citizen Lab in February 2014. This report documented the use of the Italian Hacking Team’s spyware technology (RCS) by the Cyber Jihadist Unit to filter web content, censor emails and other internet communications, and spy on the political opposition and journalists.85
In September 2013, the people of Sudan started protesting against the government’s decision to lift fuel subsidies. These demonstrations are remembered as the “September Revolts”. During these protests the Cyber Jihadist Unit increased its censorship efforts, it targeted cyber-dissidents and manipulated information. IT specialists based at the NISS head offices monitored content on blogs, social media, and online forums.86 In these revolts, more than 177 people were killed and 800 detained with many activists and journalists arrested to stop the documentation of such activities.87
80 Association for Progressive Communications (APC), Coalition submission to the Universal Periodic Review of
Sudan, September 2015, available from: https://www.apc.org/sites/default/files/Coalition-Sudan-UPR-submission-FINAL_0.pdf
81 Press and Publications Act, 2009 http://www.pclrs.com/downloads/Press%20Act%202009%20english.pdf
82Association for Progressive Communications (APC), Coalition submission to the Universal Periodic Review of Sudan,
p.8.
83 Jason B. Nicholson et al., “Sudan: African Sequel to the Arab Spring?,” Small Wars Journal, accessed April 15, 2020,
https://smallwarsjournal.com/jrnl/art/sudan-african-sequel-to-the-arab-spring
84 “Online Surveillance and Censorship in Sudan,” Online surveillance and censorship in Sudan | Association for
Progressive Communications, accessed April 15, 2020, https://www.apc.org/en/blog/online-surveillance-and-censorship-sudan
85 Bill Marczak et al., “Mapping Hacking Team's ‘Untraceable’ Spyware,” The Citizen Lab, July 8, 2017,
https://citizenlab.ca/2014/02/mapping-hacking-teams-untraceable-spyware/
86 Ibid.
87 Emily@acjps.org, “Over 170 Dead, Including 15 Children, and 800 Detained as Demonstrations Spread throughout
Sudan,” African Centre for Justice and Peace Studies, October 4, 2013, http://www.acjps.org/over-170-dead-including-15-children-and-800-detained-as-demonstrations-spread-throughout-sudan/
