Edward Snowden’s revelations concerning the surveillance activities of the National Security Agency began to be published on 6 June, when The Guardian, and the journalist Glenn Greenwald, unveiled details of a secret court order obliging the telecommunications company Verizon to give to the NSA – on an ongoing basis – the metadata of all those telephone calls made by customers using the Verizon network. The NSA, according to The Guardian, has been engaged in storing this metadata indiscriminately and for periods of up to three months. The following day, the newspaper disclosed the existence of the NSA’s Prism programme, which allegedly allows the NSA direct and unfettered access to the servers of major online service providers – including Google, Apple, and Facebook – enabling the agency to view and store individuals’ online transactions, search histories, and the content of posts and emails.
The NSA and the US government have sought to obfuscate, and to argue that what access they do have to the content of communications is legal, requested through the requisite channels and properly overseen. Yet the legal proceedings involved are undertaken by a closed Fisa (Foreign Intelligence Surveillance) court, with parties legally obligated to provide information, but legally restrained from revealing even the existence of court orders; never mind any details concerning courtroom proceedings and the information they have been legally bound to give. The service providers implicated in Prism and in other NSA programmes have therefore made muddled and contradictory statements – many initially denying all knowledge of Prism – but have ultimately remained somewhat muted regarding the nature of, and the extent of their acquiescence to, these relationships with the security agency.
Snowden’s identity was revealed on 9 June in The Washington Post, by Barton Gellman; and across The Guardian the following morning. The Guardian and the Post, Greenwald and Gellman – the two men with whom Snowden met, in April and in May, after communicating with the documentary film director Laura Poitras; and to whom Snowden passed on the classified NSA documents – have published additional details and further disclosures over the course of the following two months. Several weeks ago, on 31 July, The Guardian exposed the NSA’s XKeyscore programme. XKeyscore allows the NSA’s analysts to search, without warrant, their vast databases of stored information containing everything from internet users’ email contacts and messages, to their log-in data, browser history, and social media activities. It is suggested that around 1.7 billion communication records – emails and phone calls – are stored by the NSA each day; while the content of communications takes up so much space that it is only held for three to five days, noteworthy data can be saved for longer through additional databases. More, via XKeyscore, an individual can be targeted for sustained internet surveillance, with the justification for such a measure the simple matter of clicking an option from a drop-down menu.
Meanwhile, after making requests to more than twenty countries for political asylum, on 1 August Snowden was granted temporary asylum in Russia, for a period of one year. Two weeks ago, the encrypted email service Lavabit – which Snowden is believed to have used while stationed at Moscow’s Sheremetyevo International Airport – was shut down: a decision made by its founder, Ladar Levison, who has stated that keeping the service running risked making him ‘complicit in crimes against the American public’. The implication is that Levison has been served with a court order, and pressured either into handing Snowden’s data to the government, or into passing on the data of all Lavabit’s users. However, Levison is legally prevented from explicating his decision and the chain of events which led to it.
Under US law – tied up with the Fourth Amendment, which prohibits unreasonable and unwarranted searches – it is illegal to intercept, search and store the content of the communications of US citizens without an individual warrant. The secrecy of the Fisa court which issues these warrants, and the court’s orders preventing those involved with its proceedings from speaking out, make it largely unknowable to outsiders and difficult to trust. The Fisa Amendments Act (FAA) of 2008, which was renewed last December for a period of five years, has made it easier for the NSA to work beyond the apparent dictates of the law: it authorises the NSA’s mass collection of the data of foreign citizens, but also allows data to be collected that is sent between foreigners and US citizens; and allows NSA analysts to search the content of communications in order to check whether individuals are in fact American or otherwise. In short, the NSA’s programmes and the FAA make it inevitable that a significant volume of US data will be swept up alongside a tremendous volume of foreign information; then allow this data to be used and stored for up to five years. More, the criteria for determining whether a citizen is within the US is far from strict: citizens may be presumed foreign if there is no evidence confirming them as citizens of America.
Still, programmes like XKeyscore were set up to collect data on such a scale, with searches requiring such little justification, that even these loose legal limitations are routinely bypassed. In the midst of public concern and a range of academic and political responses – the Speaker of the House of Representatives, John Boehner, was one of several in Congress to label Snowden a ‘traitor’; while the 39th US President Jimmy Carter called the revelations beneficial and lamented ‘America has no functioning democracy’ – the US government and President Obama have denounced Snowden and sought his return to America to face trial. Obama’s second term risks being overwhelmed by the fallout; despite the positives of his presidency, for instance in the realm of healthcare, and disregarding hesitations and obstructions over Guantanamo Bay, his presidency is falling into disgrace owing to his strident actions against press freedom and whistleblowing, which are essential facets of any democracy.
One may view the type of surveillance carried out by the NSA as necessary – validated by a war on terrorism which is nebulous because it is new, and requires new technologies and flexible laws both pushed towards their perceived limits. If the argument that the government would not abuse such stores of data seems naive, and if the sentiment that only those with something to hide have cause to worry seems not only trite, but lacking in intellect, decency and any sound sense of privacy, still there are more considered opinions which would ease if not dismiss concerns: for instance, the stance that privacy on the internet can be so little guaranteed that it cannot be expected; that data collection is par for the course when it comes to email servers, social media and multimedia sites, which rely on targeted advertisements for the vast majority of their income; and that with so much information so readily available and unsecured it is inevitable that governments will take a share. Nevertheless, Edward Snowden’s revelations have exposed programmes the extent of which few even inside politics understood; which do raise essential questions concerning the privacy of individuals, the violations of technology, and the relationship between major companies and the state; and which bring into focus potential abuses of the law as it stands, the arguably undemocratic use of court systems, the deceptions of those in government, and a lack of oversight within the NSA, from politicians, and also by the press.
Last week, Obama announced a series of reforms which, he hoped, will give the public the same confidence in the NSA that he professes to possess. These reforms – including a proposed change to Section 215 of the Patriot Act – focus on the NSA’s collection of phone data rather than internet data, and aim to give the impression of greater accountability. A ‘civil liberties and privacy officer’ will be appointed by the government; a lawyer will be appointed to argue against the government at the Fisa court; and a group of external experts will review the government’s intelligence and communication technologies. Given that the NSA’s methods and the Fisa court system are so convoluted, so secretive, and so determined to persist, it is difficult to see these reforms as anything more than superficial. The Fisa court will remain secretive, and the NSA’s programmes will continue to exist with the same scope and remit and with the same capabilities and legal allowances as before.
A series of documents unveiled by The Washington Post on Friday show just how often the NSA has broken American privacy laws since 2008. In fact, since the FAA was implemented, privacy violations have increased year upon year. A leaked annual audit from May 2012 lists 2,776 violations, which the NSA and governmental figures describe as ‘compliance issues’: the argument is that the majority of these transgressions were not deliberate, but this does not mean that the data collected – which includes both metadata and content – is not searched and kept. Further documents reveal that the guidelines given to NSA analysts advise them to fill in oversight forms with as little ‘extraneous information’ and as generically as possible.
Alongside issues of privacy, legality, government authority and oversight, Snowden’s revelations also call into question if not the existence, then certainly the nature of the nation state. Within the United States, it seems that concern has centred upon upon the illegal collection of American data, the potential misuses of this data, and the NSA and the government’s deceit. Less heed has been given to the flagrant immorality of an American security agency spying indiscriminately, on a gross scale, and without legal impediment, upon foreign citizens. This has caused some distress in Europe, particularly in Germany, with numerous articles relating the German attitude to surveillance to their experience of the Stasi during the period of the German Democratic Republic. Within the European Union, Germany is the country which the NSA spies upon most, collecting an average of 20 million phone connections and 10 million internet records each day. Angela Merkel’s Chief of Staff, Ronald Pofalla, advised the German people that, ‘The NSA and the British intelligence agency have assured us they uphold German law in Germany’, but this says nothing for the profusion of German data which travels to the systems of service providers based elsewhere.
Yet whilst the NSA engages in the mass surveillance of German citizens, Germany’s Federal Intelligence Service, the BND, has admitted to also using the XKeyscore programme since 2007. Cooperation between the BND and the NSA, with specific regard to the sharing of telephone data, has even brought the allegation of German complicity in US drone attacks in Afghanistan and Pakistan. The broad scandal which has ensued is affecting Angela Merkel’s campaign for re-election, with polling set for September; in response, Merkel has attempted to share the blame for any BND wrongdoings with the opposition Social Democrats.
The picture in the UK is similarly murky, with the intelligence agency GCHQ – the Government Communications Headquarters, responsible for providing signals intelligence – partly funded by the NSA, and working towards its ends. The GCHQ endeavours to ‘exploit any phone, anywhere, any time’; admits privately to the deceptive nature of its work; and stresses as a ‘selling point’ the UK’s relative lack of privacy legislation. Indeed, Alan Rusbridger, editor of The Guardian – in the aftermath of the nine-hour detention at Heathrow Airport of David Miranda, Glenn Greenwald’s partner – published on Monday a piece suggesting that prior restraint (otherwise known as pre-publication censorship), ‘near impossible in the US’, is an option being pursued by the UK government; and describing how two GCHQ officers oversaw the destruction of Guardian hard drives containing Snowden’s disclosures. The government reportedly warned Rusbridger that the Guardian would have to hand over the Snowden data or else face its destruction, telling him, ‘You’ve had your debate. There’s no need to write any more’. Both the UK and the US governments have admitted being kept abreast of – though not authorising – Miranda’s detention; but the White House says it is ‘difficult to imagine’ the US government engaging in the destruction of hard drives.
The reality seems to be one where nation states use their ill-defined status as such, their existence within borders which they pledge to secure, to profess a concern for the rights of their own citizens – with the implicit extension being that the rights of the rest of the world barely count and can be summarily dismissed. This use and abuse of the concept of the nation state is one which is echoed when it comes to defence, armaments, and immigration. While professing outwardly a concern for their citizens, at least while they persist within their own borders, governments secretly bind themselves to one another in an endeavour to spy on the very same. So despite the FAA making it easier for the NSA to work round American law; despite programs like XKeyscore allowing NSA analysts to search American data on the thinnest of pretences; still what vestiges of the law remain and what oversight is carried out make it just as well for the NSA and the American government to obtain data on their own people from intelligence agencies overseas – from the British and the Germans, for instance, who can obtain and store as much US data as they please. These transactions work both ways, and extend across the globe; including to New Zealand, which has just passed a contested law bolstering domestic spying.
While Snowden has revealed the secret and duplicitous methods by which governments would erode the privacy of individuals, there is a correlate in the UK in David Cameron’s openly expressed plan to bolster the legislation concerning online pornography. Cameron announced last month – after a sustained ‘Block Online Porn’ campaign in the Daily Mail, begun in April 2012, and absurdly posturing as a ‘fightback for decency’ which would ‘protect Britain’s young from a vile and insidious social menace’ – a series of measures, meant to curtail the viewing of online pornography which he stated is ‘corroding childhood’. Alongside the establishment of a single secure database of illegal images of children – questionable in itself given the government’s record when it comes to overseeing data – and more powers for the Child Exploitation and Online Protection Centre, three key measures were highlighted. Internet service providers will be required to ask clients to ‘opt-in’ if they want access to online pornography, with all pornography filtered unless users actively choose to be able to receive it. The possession of ‘extreme pornography’, including pornography depicting rape, is to be made illegal. Lastly, ‘horrific’ search terms will be blacklisted, with service providers obliged to prevent these terms from producing any results.
Many have cited the difficulties in implementing such filters accurately, and without also preventing access to non-pornographic material; whilst Tumblr has offered a recent demonstration of the potential dangers that come with the excessive blocking of search terms. The criminalisation of the possession of ‘rape porn’ also appears difficult to justify. Professionally produced ‘rape porn’ involves consenting adults, and it may be difficult within the realm of pornography to always distinguish between it and types of BDSM. More, it is unclear how any ban would sit alongside some of the depictions of rape in mainstream movies and across other artistic endeavours. The argument that depictions of rape in pornography are solely or predominantly for titillation, demeaning for its practitioners and debasing the public, while other artistic depictions always treat the matter more conscientiously, seems a dubious argument at best, especially for a government that would seek to avoid nuanced understandings.
There is perhaps a case for a strong public debate on the effects and the availability of pornography. Evidence that the ready availability of internet pornography constitutes a ‘corroding’ influence appears so far slim and inconclusive. Any debate would have to consider a broad range of interconnected issues: historical attitudes and behaviours; the ready availability of professions which pay well and do not demean their practitioners; how pornography or the delimiting of pornography affects social relations and both sexually motivated and non-sexual acts of violence; and so on.
However, Cameron’s proposals have not come in the wake of any extensive or sensible debate. Ostensibly focusing on the safety of children, the proposals have been framed so as to shame any viewer of pornography – conflating separate issues and with confusing legislation outlines which seem to link child abuse or else child neglect with all viewing of porn, and which cast the users of porn as deviant. Rather than being presented as a fact of society which may be thoughtfully navigated, discussed, and used or not used, pornography has been cast as an infiltrator, an attack upon society, upon the body and the home: in his speech outlining the proposals, Cameron advertised filters as ‘One click to protect your whole home and to keep your children safe’ (incidentally, Cameron’s speech included nine variations on his patronising invocation, ‘let me be clear’). Far from suggesting balanced and concerned parenting, this seems a hands-off, detached approach. The insidious lack of clarity in the proposals has resulted in some assuming they’re going to be presented with this simple option: Do you or do you not want access to rape and child porn?
There is controversy over the precise nature of ‘opt-in’ or ‘default-on’. It has been argued that what internet service providers offer will not change at all, and that ‘default-on’ is nothing but ‘political sleight-of-hand’. Cameron’s proposals do not seem to indicate any new internet infrastructure, or any new technology which the government may use or misuse: the filter system which providers already utilise will remain in place; with the blocking of search terms remaining, for the moment, the provision of search engines like Google and Bing. The wider issues are the facile move to establish a public and political discourse in which the government dictates how people are to live; and the move to establish an open legal precedent for government meddling in internet activities. In contrast to the secretive and underhand work of the intelligence agencies, this is the second prong that would skewer privacy.
