Cyber-libertarian Resistance

It’s unfortunate that it takes Glenn Greenwald’s statements of the obvious for most people to realize the breath of this data collection and its 7-year history. James Clapper denounced the The Guardian's and The Washington Post‘s “reprehensible” disclosures of the NSA’s suctioning of the data streams Americans and foreigners generate every day, though we are assured the siphoning of any American citizen's personal data (or merely transactional data) is purely incidental. We may simply be victims then (for we cannot know thanks to the clandestine nature of the intelligence operations) of accidental spying, or collateral damage in the ever-expanding war against terror. The other collateral victim was the public discussion about the trade-offs between security and privacy, but we can rest securely, as it were, with the knowledge that President and his team considered them for us:

“There are some trade-offs involved” Mr. Obama said. “I came with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly." In the end, he concluded that “they help us prevent terrorist attacks.”1

There has been little discussion of how to balance privacy and security, and if any occurs in the near future, it will only be thanks to the tepid assurances that only the NSA's data sponge only absorbs the digital lives of non-Americans. If American citizens are protected from this surveillance, they only enjoy such protection at the sufferance of secret courts, classified memoranda, and other off-the-record conversations among elected and appointed officials. Reassuring indeed.

Indeed, to claim American citizens are protected is misleading, for peering into our digital lives only requires an individualized court order—an order to access, we have learned these past few days, data that already exists in the NSA’s servers. Indeed, Charles Shanor calmly reminds us that only computers are sorting our data, just as Google’s and Facebook’s systems already do. It is fortunate indeed for the government that such computer sorting requires no legal warrant, but considering that the computer would likely make far better use of the data than any of its ignorant human operators, my concerns aren’t assuaged.

The bland reassurance that no American citizen need concern him- or herself because only foreign nationals are under surveillance assumes that we will believe all terrorists and other threats to national security are foreign. Do no Americans compromise the state's and their fellow citizens’ security? As the Boston Marathon Bombing shows, terrorists and Americans are not mutually exclusive categories. We should not forgot about the American citizens detained as enemy combatants oversees, or about the numerous domestic terrorists like Timothy McVeigh and Christian fundamentalists who bomb abortion clinics. For now, we can assume that examining the data of such domestic terrorists requires an individualized court order, but it does not mean Americans are at all exempt from such scrutiny. How much longer until the US government invents a rationalization to do what the People's Republic of China and other repressive regimes around the world do constantly—freely and secretly monitor this data for indications that its own citizens are being subversive—however we wish to define the term?

Clapper’s hyperbole and the various dismissals from lawmakers are unfortunately too common in what passes for political discourse in this age and is ultimately irrelevant, since we cannot rationally evaluate whether these disclosures have indeed affected national security, or whether we have been subject to such intrusion. The SCOTUS philosopher kings ruled 5-4 that we have no standing to challenge 50 U. S. C. §1881a of the Foreign Intelligence Surveillance Act, which empowers the government to eavesdrop on international communications with an origin point in the US (thankfully for US spy agencies most of the world's Internet architecture is located in the US) without probable cause. We must simply have faith that the secret FISA court rules with philosopher-king-like wisdom—frankly, not even the Supreme Court with its public hearings and opinions reaches that lofty goal.

Yet Clapper defended the broad, ongoing intelligence collection effort by saying that "only a small fraction" of the phone records – such as phone numbers and call – are ever scrutinized by intelligence analysts for connections to terrorism. Such scrutiny occurs according to “strict restrictions” overseen by the Justice Department and the special, secretive US surveillance court, he continued.2

The same political discourse that allows platitudes like “strict restriction” and “reprehensible” breaches of government privacy—i.e., top secret information—also prevents us from having an intelligent discussion of what compromises between personal privacy and security we are willing to accept. Given how liberally we throw all manner of so-called personal information into social media websites without much thought of (much less a reading of) the terms of service, I suppose we cannot fault the branches of the US government too much for assuming that most Americans would not care whether the NSA was spying on them.

Instead of having the discussion in a public space, we must trust a secret court to safeguard what are supposedly core American values of privacy, right to due process, and protection of private property. Perhaps if people could muster the necessary attention span to have such discussion, they would realize that most of the data they transmit to and through servers and services (e.g., Google’s services, Facebook, etc.) isn’t, in fact, their property. As the various left of center and right of center lawmakers quoted in the pieces admit, none of this (meta)data collection is news to them, but I suppose its prominent placement on the The Guardian, The Washington Post, and NYT homepages indicates it is indeed news to the legions of complacent telecommunications users (which would be most of us) that the pervasiveness of digital data networks means the collection and retention of that data has been and continue to be a tool for commerce and government to learn about the increasingly digital lives of its customers and citizens—to the extent those categories are still distinct.

Though the PRISM revelations have provoked vociferous denunciations from the mainstream press, the disclosure of Verizon's compliance with an ongoing FISA court order to turn over its network "metadata" or transactional data was more than disturbing enough.

The order directs Verizon to "continue production on an ongoing daily basis thereafter for the duration of this order". It specifies that the records to be produced include "session identifying information", such as "originating and terminating number", the duration of each call, telephone calling card numbers, trunk identifiers, International Mobile Subscriber Identity (IMSI) number, and “comprehensive communication routing information.”3

The order may not include the messages' contents but given the utter banality of most conversations, the so-called content is less relevant than the networks that the transactional data constructs for the metadata collector. What you "Like" and the people you connect with are more interesting and economically valuable to Facebook than the contents of posts or messages. In fact, people underestimate how much more revealing a statistical analysis of their activities is than their self-reported interests or desires—just think of all the “great” classic movies in your Netflix queue compared with the TV sitcoms, cartoons, and other “frivolous” entertainment the site’s algorithms suggest to you.

As Glenn Greenwald’s follow-up column in The Guardian reminds us, Federal authorities do not react kindly to individuals who reverse this spying by providing the public (i.e., journalists, Wikileaks, etc.) with the government's personal—I mean top secret—data. The Wikileaks dissemination of Bradley Manning's illegally acquired State Department memos and the severe counter-reaction against the organization and hacker are just one example of how seriously the government takes breaches of its (but not its citizens') privacy. Let’s not forgot the fate of other hackers like Aaron Swartz, who was being charged with wire fraud and violation of the Computer Fraud and Abuse Act (CFAA) for the mass download of JSTOR articles—articles that academics supposedly working in the public interest produced and published in journals for little to no compensation.

The revelation of these actions by the NSA and other organs of the US government signal—to me at least—that the most transgressive political act one can perform in the US, European Union, and other information technology saturated societies is the unauthorized access and distribution of information and technology. While civil rights struggles such as the cause for LGBT rights are important, those campaigns leverage the relatively uncontested right individuals have to self-determination—the increasing acceptance of libertarian ideals in everyday life and government policy signal just how much more weight we Americans give to individual over collective rights and responsibilities. Political resistance to such agendas is mostly theatrical in the sense that politicians pander to their constituents' perceived position, or at least as the mass media and polling organization construct those constituents. Being against same-sex marriage is simply part of the dance for campaign financing that some politicians must play—just as supporting it is for others. The quick avalanche of US lawmakers who have "come out" in support of same-sex marriage just illustrates to my cynical mind that they supported it all along and merely said what they needed to acquire financial support for their campaigns.

The strong bi-partisan support for such surveillance programs and for the prosecution/persecution of so-called hacktivists should indicate (like a flaming index finger pointed at the Exit sign) that these individuals are indeed a threat, a challenge to authority. The Wikiweapons or Defense Distributed project headed by Cody Wilson helps us to understand that this battle over information is not occurring on some immaterial cyberspace plain of existence but is very much continuous with our physical world and its harsh realities. Once you can print the (legally) restricted parts of a gun from CAD files, you also begin to understand how important controlling the flow, production, and analysis of the information our computers generate and process is to determining what political and economic power will look like in the coming twenty years.

Links (formerly known as Further Reading)

  1. Baker and Sanger, “Obama Calls Surveillance Programs Legal and Limited,” NY Times (June 7, 2013).
  2. “Clapper Admits Secret NSA Surveillance,” The Guardian
  3. “NSA collecting phone records of millions of Verizon customers daily,” The Guardian

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