U-turns, defences and legislation proposals: the NSA/GSHQ week so far

“The NSA situation is one we need to look at. I support the complete review of all of these programs.” – US Senate majority leader Harry Reid

 

I am about to go away for a week so I am a bit short on time. However, given that this week has seen quite a bit of action already, I leave you with a round-up of NSA/GCHQ news so far.

 

Renfield vs Dracula: Diane Feinstein’s about-turn

Senator Diane Feinstein, chair of the Senate intelligence committee – one of the most fervent supporters of the NSA until now – has called for “a major review into all intelligence collection programs” following reports that the NSA spied on international leaders, allegedly without informing president Barack Obama.

Recent revelations have included news of NSA phone tapping in France, Spain, and Germany, where chancellor Angela Merkel’s mobile phone was allegedly monitored by the NSA for over ten years.

In Latin America, a human rights panel “expressed frustration and dissatisfaction with the National Security Agency’s mass surveillance of foreign nationals” calling oversight of the programmes “illusory”.

The Guardian reports thatBrazil is […] teaming up with Germany at the UN on a general assembly resolution demanding an end to the mass surveillance.”

It has also emerged that the NSA’s pilot programme to collect mobile phone location data apparently went ahead without prior submission to the FISA court.

So lest we get too excited about the US’s reformed view on the subject, let us bear in mind that given these recent revelations and mounting international tension (the US has been “fielding a week’s worth of European outrage”), they have obviously realized that it is about time they were seen to be critical of NSA practices.

My favourite tweet this week (from Julian Sanchez) summarizes the situation like this: “This is like the scene where Renfield finally tries to fight Dracula. A little late, and mostly just sad, but better than nothing…”

I enjoy the analogy. Feinstein never complained when it came to surveillance of American citizens (which is problematic under the Fourth Amendment) – it is only now that a major diplomatic fall-out threatens that she calls for a review and the White House distances itself from the intelligence community. More than that, Feinstein’s own legislation proposal, if approved, would keep the surveillance programmes largely intact.

 

Attack and Defence: Sensenbrenner, the USA Freedom act and the intelligence chiefs’ passionate defence

I am little more excited about James Sensenbrenner, famously the author of the Patriot Act, introducing the “USA Freedom Act” (The full bill is here). The legislation is intended to “ban warrantless bulk phone metadata collection and prevent the NSA from querying its foreign communications databases for identifying information on Americans”.

While this does little to protect non-Americans, at least it shows that some members of Congress are serious about curtailing the NSA’s powers.

Not so NSA chief General Keith Alexander and National Intelligence chief James Clapper, who testified in Congress on Tuesday, mounting what the Guardian calls a forceful and emotional defence of NSA surveillance.

The NSA preferred to “take the beatings” from the public and in the media rather “than to give up a program that would result in this nation being attacked,” Mr Alexander said.

Don’t be fooled either by his concession on Wednesday that the NSA “may need to scale back some of its surveillance operations on foreign leaders, in the wake of an international outcry,” and “that limiting the program may be necessary in order to maintain diplomatic relations.”

Note that he is still defending the programmes as such. No wonder the New Yorker satirically quotes Mr Alexander as promising that the NSA will never get caught spying again.

“At the same hearing,” the Guardian reports, “James Clapper warned the panel to be mindful of the “risks of overcorrection” in surveillance reform – suggesting that proposed restrictions on bulk surveillance would leave the country in danger of a terrorist attack.”

Invoking 9/11 still seems to be a favourite amongst surveillance defenders. However, if NSA programmes really are that successful at preventing terrorist attacks, then where is the concrete evidence to support this claim?

The answer is that it is lacking just as much as evidence of how NSA reporting has damaged national security or undermined the capabilities of NSA and GCHQ.

Interestingly, Mr Alexander continues to claim that the strongest evidence of anything we have seen over the past couple of months, namely that the NSA collects millions of Europeans’ phone calls is “completely false”.

This in the same week that it has also emerged that surveillance services the world over are “working hand in hand” with the NSA to spy on people on a massive scale.

Further on the subject of international spying, Mr Clapper “Danc[ed] around the central question of how much Obama knew about NSA spying on foreign leaders” saying that “the intelligence agencies “do only what the policymakers, writ large, have actually asked us to do.”

But he added that “the “level of detail” about how those requirements are implemented rarely rises to the attention of presidents.”

So what Mr Clapper seems to be saying is that while “the White House ha[s] long been aware in general terms of the National Security Agency’s overseas eavesdropping”, this “does not extend down to the level of detail. We’re talking about a huge enterprise here, with thousands and thousands of individual requirements.”

 

Yes, you absolutely do need to worry about this, even if you have nothing to hide

Be that as it may, I have massive problems with arguments like the one by Peter Galbraith that more spying is not necessarily better spying.

While obviously making a case against Mr Alexander’s ideal of “collect all”, Mr Galbraith also seems to suggest that because most of our conversations are of no use to the intelligence agencies, we need not worry.

Make no mistake, this isn’t only about the spooks listening in on those of our phone calls they are interested in (and thus, by inference, none of them because we’re all so boring). This is about them listening at all.

It is fair enough to argue, perhaps, that European leaders should not feign outrage about being monitored because they are obvious targets for surveillance.

Consider international diplomats and leaders fair game if you will (which they shouldn’t be). That doesn’t alter the fact that the rest of us aren’t.

We have a right to privacy. This right needs to be upheld. And the problem with NSA powers is not that the quality of the intelligence suffers from its sheer bulk – what kind of an argument is that? – or that everyone is spying on everyone anyway.

The problem is that once you start allowing for this kind of thing, then there is no telling where it will go or how it will be abused. I cannot be the only one with enough imagination to see how hazardous this is. And if you fail to imagine it, do look to the East German past and the Stasi for some clues.

Also, “[t]he Obama administration” specifically isn’t in “its current mess because Booz Allen Hamilton, a contractor doing billions of dollars of secret work for the government, gave a troubled 29-year-old high school graduate access to a vast array of secrets.”

Now, not only do I take issue with Mr Galbraith’s quip at Edward Snowden which – once again – tries to undermine his credibility as a whistleblower by making him out as some kid who doesn’t have his emotional state sorted out.

I also deeply object to the idea that “espionage is not just about collecting secrets but also keeping them.” (As, apparently, does the New Yorker – see above). Not if that means spying on perfectly innocent people and not giving them a chance to decide whether or not they want to surrender their right to privacy for the sake of security.

It is not Mr Snowden whose outlook is troubled, it is Mr Galbraith. Now, I do understand that working as a diplomat might leave you somewhat disillusioned. But that’s no excuse for forgetting that we ordinary mortals have basic civil rights and that we have elected people to protect these rights. And these people, by the looks of it, have failed us.

If it is really true, as the Snowden documents suggests, that the NSA “in partnership with its British counterpart GCHQ, is copying large amounts of data as it flows across fiber-optic cables that carry information between the worldwide data centers” of Yahoo and Google then these firms are right to be furious.

Especially because under PRISM, “the NSA gathers huge volumes of online communications records by legally compelling U.S. technology companies, including Yahoo and Google, to turn over any data that match court-approved search terms.”

Now it seems that in addition to this front-door access, the NSA and GCHQ have back-door access as well. According to the Washington Post, U.S. technology companies “had reason to think, insiders said, that their private, internal networks were safe from prying eyes,” which doesn’t seem to be the case at all.

This latest project to be revealed is called MUSCULAR and whether or not the firms knew about it, we, the users have a right to be furious.

Make no mistake: the scale of this surveillance is massive and the implications are frightening, so we all need to worry about it in a big way.

Why? Because “Yahoo’s internal network, for example, sometimes transmits entire e-mail archives — years of messages and attachments — from one data center to another” to avoid data loss. “Tapping […] Yahoo clouds allows the NSA to intercept communications in real time and to take “a retrospective look at target activity.”

This information about taking “a retrospective look” is vital; it means that even if someone isn’t a target now, the NSA will still be able to reconstruct their digital life retrospectively if they fall under suspicion in the future – something Edward Snowden warned against in his very first interview with the Guardian in June.

If you don’t quite believe that, I suggest you consider this article in the NY Times about the NSA’s retrospective interest in Angela Merkel’s phone conversations once she became the German chancellor (the NSA had been monitoring her communications way before that).

Also note that “[i]n an NSA presentation slide on “Google Cloud Exploitation,”[…] a sketch shows where the “Public Internet” meets the internal “Google Cloud” where their data reside. In hand-printed letters, the drawing notes that encryption is “added and removed here!” The artist adds a smiley face, a cheeky celebration of victory over Google security. Two engineers with close ties to Google exploded in profanity when they saw the drawing,” saying that they hoped the press would publish these slides. The Guardian also reports that these slides “caused particular fury”.

 

And in the UK: same old, same old

Despite all of this, developments in the US still seem more promising than in the UK where international outrage does nothing to stop prime minister David Cameron from making veiled threats against the Guardian while appealing to its sense of “social responsibility”. Ironic.

Demonstrating social responsibility is precisely what the Guardian and other newspapers involved in the Snowden reporting are doing.

Sadly, the same cannot be said about the Tories.

In light of recent developments and policy suggestions, I suppose it’s not surprising for a group of politicians so clearly ignorant of how the rest of us live to respond responsibly to concerns about our rights.

Considering that top US representatives like the above mentioned James Sensenbrenner have written op-eds opposing current US surveillance practices in the Guardian, am I the only one to whom calls for investigation/prosecution of the Guardian seem schizophrenic?

And yes, I am aware that Mr Sensenbrenner is an American but in the UK senior officials have spoken out against the practices of the NSA and GCHQ as well and asked for an end to the attacks on the Guardian.

One of these voice is London Mayor Boris Johnson – also a Tory – who calls the Guardian’s revelations “salient and interesting”.

Johnson, a former journalist, said that “it was important that governments and their spies were held to account by a “beady-eyed” media”.

“I don’t believe that the fact that Angela Merkel’s phone was bugged by the NSA does anything to jeopardise anybody’s security,” Mr Johnson said, “it’s merely colossally embarrassing and it should come out.”

Right he is. Also note specifically what he says about national security and bear in mind that the otherwise endless litany of how the Guardian has endangered it still has not been substantiated with any concrete evidence.

Politicians in the UK would do well to learn the Feinstein lesson and “take careful note of what is happening in Washington – and in a succession of European and other capitals too […] Responsible investigative journalism has unearthed a situation that the oversight system had no idea was taking place. The right response to that is the one that Senator Feinstein […] has now embraced. […] The problem is the surveillance programmes, not the journalism that has told the story.”

Yes, UK politicians would do well to take careful note of that. Perhaps the debate that Lib Dem Julian Huppert will lead in the Commons this Thursday will be a start.

At the same time, though, this is also the week that the press regulation royal charter was approved by the Queen.

We shall see then, shan’t we?

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