“It has been an astounding week in the surveillance vs. privacy debate, from a bracing federal court ruling on Monday to 46 detailed, if porous, recommendations today for NSA reform.”
What I really want to do…
I really want to comment on Edward Snowden’s letter to the people of Brazil this week. I think it is a must-read that shows once again what an inspirational thinker Mr Snowden is.
I would also like to comment on the ACLU’s defence of him as a patriot and why they are right.
At the start of the week I thought I was going to write about the Home Affairs Select Committee “grilling” UK Home Secretary Theresa May.
Or I could talk about the 60 minute piece aired on CBS and how much I snorted at the patronizing tone of voice in which Keith Alexander explained why collecting metadata is the “least intrusive way” of getting the information the NSA needs to stop “the bad guy”.
… and why I won’t do it.
But I won’t. Why?
Because, yes, it has been a busy – if perhaps not quite astounding – week and lots has been going on.
Mind you, the documents by Mr Snowden and the ACLU are actually self-explanatory and if you read them you will see what I mean.
The Twitter sphere, I think, has taken good care of the CBS piece as have many others who have picked it apart.
As such, Techdirt has collected some of the most striking issues with the piece.
The Atlantic picks apart one of the most misleading exchanges between Keith Alexander and CBS correspondent John Miller – misleading for the audience, mind you.
The Verge warns us not to be fooled by CBS’s “propaganda piece” while The Nation bemoans the “sad decline” of 60 minutes evident in its NSA “whitewash”.
As for the Home Affairs Select Committee session in the UK, I thought it was interesting for one reason only. It confirmed, once again, what UK Home Secretary Theresa May was not willing to discuss, which was pretty much everything.
She “expects”, she said (and she said that a lot) that everything is in order with the British spy service GCHQ and that the spy chiefs’ reassurances that everything is in order and that Edward Snowden and the Guardian have damaged national security should be enough for us.
No surprises there. I was quite dismayed that the MPs on the committee did not actually grill her that much at all.
So, overall, even though the session was useful in re-affirming the impression that the UK government does not seem at all interested in a debate on the capabilities of its spy agencies, the thing felt like a bit of a let-down and it did not even have an Alan Rusbridger to make it more interesting.
Debate in the UK: Alan Rusbridger and Jimmy Wales vs. David Omand and others
However, another debate in the UK this week did.
And it raised a number of important concerns as well. Which is why I am going to focus on it in this post. I am also going to address the recommendations published this week in the US by president Obama’s review panel but because what is happening in the UK – namely the continued unwillingness of government to address these issues sensibly – seems to be in such stark contrast to what is happening in the US, especially this week, I am going to take the UK debate as my starting point.
As Alan Rusbridger has put it in a recent Guardian op-ed: “In the US, the official response to Snowden’s revelations celebrates journalism and calls for real change. In Britain, the picture has been rather different.”
This is very true. An editorial in the Observer this week correctly makes the point that the NSA/GCHQ debate is turning increasingly into “a cautionary tale of two countries” with “profound” differences at their core: “American democracy,” the editorial states, “awakes and reacts. British democracy sleeps, and shoots messengers.”
And it doesn’t look likely to change.
In response to the report submitted by Mr Obama’s review panel in the US, British PM David Cameron has come out saying that his “view on the powers of the UK intelligence agencies remains unchanged” while refusing to comment on the report itself.
“As I understand it,” Mr Cameron’s spokesman said, “it’s a report to the US administration and we don’t comment about the exchanges that we have, the very close security relationship with the US. We don’t comment on the details.”
That has been the general reaction by the UK government to the Snowden disclosures: “We do not comment on the details.” Debate in the UK is not encouraged by government – and the government certainly will have no part in it.
However, that doesn’t mean it isn’t occurring.
This week’s debate in which Alan Rusbridger, Jimmy Wales and David Omand, among others, debated UK surveillance with MPs is one example.
So, what was said then?
In the beginning, Rusbridger raised ten issues, some of which struck me as particularly important to remember and consider:
1.) The issue of consent. This refers to the consent of the citizens whose data is being collected, stored, analysed, as well as the consent of parliament, which, according to Rusbridger, was never given:
“whenever parliament has been given the opportunity to consider whether there should be […] giant databases [for mass storage of communication details], it has said no”.
2.) The issue of legality:
“[T]he laws applied to the security services come from an age before the modern internet,” Mr Rusbridger said. They are “analogue laws in a digital age”.
At this point, he also pointed out an important decision by a federal court judge in the US this week: the US phone data programme is probably unconstitutional.
US Court Ruling and Obama’s review panel
This ruling is important. CNN has put together five key questions which clarify the most important points.
And there have been other important developments in the USA as well.
As such, the review panel established by President Obama in reaction to the Snowden revelations has come out with a 300-page report which, amongst other things, calls for the NSA to be stripped of its bulk collection powers.
Don’t get too excited though because this isn’t as good as it sounds. The way the report envisions this is that the data will still be stored by private companies and that the NSA will need a court order to search through it.
This may constitute an additional safeguard but, as privacy advocates point out, it is still data collection and storage on a massive scale.
“It’s not a solution to simply repackage the bulk collection under private control,” said Alex Abdo of the ACLU – and he is right, of course.
In addition to this, the report – while proposing some meaningful reforms – falls sadly short of others. I, for one, do not understand why spying on foreign leaders would be left mainly intact. Surely, if this is all about counter-terrorism then the likes of Angela Merkel should not be surveillance targets.
And can I just ask; what is “GCHQ doing bugging German government offices, listening to EU Commission conversations, tuning in to hear what the Israeli PM’s got to say … or leering over Unicef’s shoulder?”
Clearly, no one’s so-called “enemies in the supposed war on terror” are “doctors saving lives in the African bush”!
Or, as Leigh Daynes, executive director of Médecins du Monde, in the UK has said: “There is absolutely no reason for our operations to be secretly monitored.”
Possibly, I am just hopelessly naïve.
“Foreigners, after all, are whom the NSA exists to spy on. And spying on foreign leaders, even allied ones, is the oldest trick in the signals-intelligence book”.
Also, “[s]pies have a freer hand with economic targets in Britain, where the law permits intelligence gathering in the service of the “economic well-being” of the country.”
That’s all right then…not.
No, I am not wrong to criticise. And I am not the only one to do so either. Privacy advocates worldwide have not received the panel’s report in a positive way.
Why not have a look at it for yourselves?
The Guardian has comments on its essentials here that are well worth reading.
There is also an interesting collection of the key points of the review and the stories that prompted them here.
The report itself is here and live coverage of the events surrounding its publication here.
Yes, the report takes several steps in the right direction.
Senator Ron Wyden, one of the greatest critics of bulk data collection, hails it as providing “substantial, meaningful reforms”.
Similarly, Alan Rusbridger calls it “wide-ranging, informed and thoughtful” and praises it for “leap[ing] beyond the timid privacy-versus-national security platitudes which have stifled so much of the debate in the UK. It doesn’t blame journalism for dragging the subject into the open: it celebrates it.”
In that respect yes, the report is important, as it gives the lie to the outrageous idea voiced by British authorities that there has been “enough debate” on the subject.
But even Mr Rusbridger, despite his enthusiasm about the report’s take on the press, acknowledges (in passing) that it is “not especially radical”.
Likewise, Senator Wyden has “concerns about having the companies hold the phone data for the NSA.”
And Marcy Wheeler comments in the Guardian on how the question of legality was never answered either.
Here is what I think: considering that the report leaves the door open for mass data storage to happen elsewhere (with the telecom companies rather than the NSA) and considering that members of Congress like Diane Feinstein “back […] an alternative to the USA Freedom Act that would bolster the NSA’s powers to store communications data” likely as not no substantial change will happen as far as mass storage of metadata is concerned.
President Obama’s, as the New York Times calls it “disappointing” response is one indication of that.
The NY Times’ editorial board is not wrong in saying that “there was really only one course [the president could] take on surveillance policy from an ethical, moral, constitutional and even political point of view…to embrace the recommendations of his handpicked panel… to end the obvious excesses.”
Only he didn’t. Instead, he will “let us know next month which, if any, he intends to follow.”
Thanks for that, then.
Back to Mr Rusbridger and the issues he has raised (again) this week.
One of them, especially significant in the week when Theresa May faced the Home Affairs Select Committee, is the issue of oversight: is there enough of it? Also, does success in foiling terrorist attacks justify mass surveillance and the secrecy that makes effective oversight so difficult? A clue: no.
“Bad things are happening on the internet” or: why uploading a bomb building manual is probably not a good idea
As to the question of whether mass surveillance and the secrecy that surrounds its oversight are justified, Labour MP George Howarth, who is on the ISC – the UK Parliament’s Intelligence and Security Committee which, in theory, is responsible for “oversight of operational activity and the wider intelligence and security activities of Government” – insisted for example that with “absolute certainty, in [the UK], […] being able to access that material has stopped attacks.”
He did not, however, give any evidence of that. Quite possibly because that material is classified. Sound familiar?
It gets better. Because Mr Howarth also said something very confusing which seems to testify to his own assertion that he isn’t the most tech-savvy person out there.
“Bad things are going on in the internet,” he said. Oh really. In case you didn’t know or believe this already, Mr Howarth suggests that you find out for yourself by – wait for it – accessing “al-Qaida’s Inspire online magazine and follow the links to other sites they host. You can find out how to make a bomb, where to get the materials from.”
I am half-tempted to try. Only I won’t.
Part of the reason is that I do not find Mr Howarth’s assertion that “accessing the site and downloading things from it is perfectly legal, but uploading is not.”
“So if you go on the site, don’t upload it,” he said. Eh? So yes, we are all being tracked but as long as we don’t upload bomb building manuals to al-Qaida we should be fine?
He continued to make another rather obvious point: “I do think there is a case for change, but it needs to be intelligent and incremental change…We need to strike the right balance between personal privacy and national security”.
Hear, hear. I would agree if it wasn’t for the subtext I keep hearing when most UK MPs go on about striking the balance between. That subtext usually tilts the balance clearly in favour of security and secrecy and in disfavour of privacy.
So good luck with that and with the oversight you have at the moment. And if you manage reform, tell Diane Feinstein how to do it right.
Consent and Human Rights
Next up, Labour MP Katy Clark who said that “it is particularly important for Labour to talk about this.”
Thanks for that; I was wondering for a moment there, if Labour were indeed the Her Majesty’s opposition or if I had made that up, considering that Mr Howarth sounded a bit like your average Tory.
She also raised a number of other concerns in relation to the way these revelations have been received in the UK.
Perhaps most importantly, however, she said one thing very clearly that has been bothering me all along and which I feel has not been said emphatically enough:
“These things have happened not in our name and not with our consent.”
And at last, here is a member of parliament who bothers to mention that:
“Parliament voted through the Human Rights Act […] Article eight of the convention on human rights makes it clear we have a right to privacy – court decisions suggest it is very difficult to justify blanket collection of personal data under that.”
At last someone has said it clearly! Because I was beginning to wonder if I had made that one up as well.
Why my head hurts: Sir David Omand
By contrast, my response to Sir David Omand, former head of GCHQ, was to repeatedly bang my forehead on my desktop.
Mind you, he wasn’t the only one eliciting that reaction from me this week: Tories Julian Smith and Louise Mensch did too, even though they weren’t present at the hearing. They didn’t need to be. They are perfectly capable of talking nonsense in public without being given a podium to so so.
Anyway, here is why my head hurts.
“These revelations would not have come as a shock if the Guardian had done more homework.”
Translation: the information is out there. There are many, many books about it. We could all have known this, had we read them. If we don’t educate ourselves, why are we so upset? It’s all our fault (and the Guardian’s of course).
“Much of what has been reported about what Snowden stole has been misleading.”
Note how he says “stole”, not “blew the whistle on”. Note also how he blames journalists, once again, for “misleading” reporting. None of this is the government’s or the spy agencies’ fault, of course. It is us with our naïve belief that we are not, or should not, be spied on because we have a right to privacy. It is news organisations like the Guardian with their misleading and irresponsible reporting that are at fault.
Headdesk #3, 4, 5 and 6 (this one is a real whopper)
A “major category error” runs through the Guardian’s reporting. It is journalistic sleight of hand to confuse access to fibre-optic cables with mass surveillance. “We are not actually subject to mass surveillance in this country”, but we are “blessed” with an intelligence community that has “bulk access”.
Here is how this should be read:
A “major category error” runs through the government’s and the spy agencies’ reaction to the Guardian’s reporting. It is sleight of hand to keep referring to the collection of data from fibre optic cables as not being mass surveillance because it is “only” metadata that is being collected. We are subject to mass surveillance, make no mistake, and we are certainly not “blessed” with an intelligence community that has “bulk access”.
In this context, consider that the review panel in the US has rejected the idea that “bulk collection is not surveillance at all.”
Also, once again that nonsense that “[y]ou need […] bulk access […] to stop the terrorists.” (Something that Keith Alexander also keeps banging on about – most recently in that journalistic gem on CBS).
Can I just remind everyone that there has so far been no evidence that…? Feel free to complete the sentence.
“It is helpful for the intelligence agency heads to be seen in public so people can see the kind of people they are – but accountability is something else again. Ministers should be accountable to parliament, but the agency heads should not be accountable to parliament. Otherwise you are building up the agency heads into something they are not.”
Well, if the important thing is for the intelligence agency heads to be seen in public but not exactly possible for them to be held accountable by that public, then I have another idea: let them go to the pub. Or, even better, put them in the zoo. At least that might be a laugh.
Can I just ask, who should the agency heads be accountable to if not parliament, i.e. the elected representatives of the people they profess to protect? Ministers, Omand says, meaning what? The ISC? Well, whether the ISC is useful as a tool for accountability is debatable.
Cue Alan Rusbridger who said that “he did not feel the ISC’s televised session with the spy chiefs did the chiefs any favours. It felt very mild and very scripted […] He compare[d] the ISC to the Press Complaints Commission, whose chairman used to go out and defend the press it was supposed to be regulating.”
“In contrast with their American counterparts on the senate oversight committee,” Alan Rusbridger writes in his recent op-ed, “not a single member of the ISC has yet murmured any significant disquiet about the existing arrangements for oversight, nor the workings.”
So much for useful oversight.
“In this security space it would be absurdly self-defeating to inform suspects they were under surveillance or tell them how they were. So the authorities cannot be transparent.”
This is non-sequitur and it is nonsense.
Not informing a suspect that they are under surveillance and being transparent aren’t mutually exclusive. Of course you would not inform suspects. The problem is that what the “authorities” are doing is not to inform anyone about how they collect data on everyone (not just suspects) which, I suppose, once again proves the point that we are all suspects.
“So the ISC will have to continue to have private sessions,” Mr Omand said.
Yes, of course, and the Guardian will have to keep reporting on mass surveillance. *headdesk*
End Bulk Access
Enter Jimmy Wales of Wikipedia who counters that “it is nonsense that the debate is hard because things have to be kept secret. We don’t need to know the names of people being targeted, but we do need to know: are you storing all our emails, are you listening to our phone calls?”
Exactly. He also said something else that is rather interesting especially in light of the fact that NSA and GCHQ backdoors have undermined the security of the internet:
“All the criminals Omand mentioned are also trying to spy on us, get our credit card numbers, and so on – so governments should increase and encourage encryption. That defeats their goal of spying on everyone – too bad.”
Wales also said, correctly, that the choice “is not either bulk access to everything or the criminals will run free. You can get information on private communications by going through the proper legal basis – without bulk access.”
Richard J Leon, the federal judge who ruled on Monday that bulk collection of phone records is likely unconstitutional, probably agrees.
But while this and the review panel’s report may be promising first steps and US debate looks much more lively compared to the UK, we should not forget either, that “most polls show about 50% of the [American] population – including a shockingly high percentage of Democrats – find the NSA’s domestic spying programme more or less acceptable.”
What this shows us is that many people clearly have not picked up on “the generalised air of suspicion” that is at the heart of these surveillance programmes. After all, how many of us really have that “sinister feeling of being watched but not knowing when”?
And this is something else that is making my head hurt: realizing how little many people seem to know or understand about these things – and the lack of effort people seem to be making to know and understand them. In the UK more than anywhere else, I am sorry to say.
If there is any doubt in your mind left that surveillance is dangerous to democracy, try this:
“Think back to all the messages you have ever sent. All the phone calls and searches you’ve made. Could any of them be misinterpreted? Could any of them be used to damage you by someone like the next McCarthy, the next Nixon, the next Ashcroft?”
And then make yourself aware that:
“This is the most pernicious and soul-shattering aspect of where we are right now. No one knows for sure what is being collected, recorded, analysed and stored – or how all this will be used in the future.”
And also consider, in this week when it has emerged that NSA and GCHQ are spying on international charities:
“The targeting of the international actors tasked with caring for the most vulnerable people, particularly children, is one of the most distressing revelations yet.”
Is that really the kind of world you want to live in? I don’t. Neither does Edward Snowden who gave up his life to spark a debate that yes, is being held, but still not forcefully enough.
The debate in the UK this week, the court ruling in the US and the review panel’s report are a good start.
But they are only that: a start. To date, people in the UK simply are not aware enough. They are still, as the Observer puts it, too trustful of “the benevolent state”, of a government that keeps showing time and again that it is not very much “on their side” at all.
“Democracy’s real responses to state surveillance,” the Observer argues, “begin on the streets where we live, where we wake up, calculate the risks, and insist on having our say.”
So more of that then, more debate, and – crucially – more awareness. Please, it is crucial.