To most people interested in surveillance the latest revelations that the US government has been doing widespread monitoring of its citizens (and the rest of the world), possibly through back-doors into major company services, is merely a chance to smugly say “I told you so“. The technology and legal trends have been clear for a long time. That intelligence agencies share information (allowing them to get around pesky limits on looking at their own citizens) is another yawn.
That does not mean they are unimportant: we are at an important choice-point in regard how to handle mass surveillance. But the battle is not security versus freedom, but secrecy versus openness.
It is not obvious whether we should wish for better surveillance or less: it is not clear it is a force for good or evil in general. Surveillance can prevent or solve crimes, alert society to dangers, provide information for decision-making and so on. It can also distort our private lives, help crime, enable powerful authoritarian and totalitarian forces, and violate human rights. But there doesn’t seem to exist any knock-down argument that dominates the balance: in many cases messy empirical issues and the current societal context likely determines what we should wish for, did we know the full picture.
But what is obvious is that that unaccountable surveillance is much easier turned into a tool for evil than accountable surveillance: the key question is not who got what information about whom, or even security versus freedom, but whether there is appropriate oversight and safeguards for civil liberties. And the only answer that comes out of the Obama administration (or any other government) is “of course!”. Unfortunately this is not convincing, since it is what an untrustworthy or incompetent government would say too.
A NSA spokesperson told The Guardian:
\”The continued publication of these allegations about highly classified issues, and other information taken out of context, makes it impossible to conduct a reasonable discussion on the merits of these programs.\”
This is entirely true. Unfortunately a reasonable discussion on the merits of the programs requires the discussants to have relevant information. The secrecy surrounding them makes it impossible to have a public discussion. Either it is done among fully informed people privately, or it is done publicly and the secrecy will be broken. The private discussion does not inspire trust since there are valid concerns about regulatory capture. The public discussion will be incomplete and bound to be biased unless most information is revealed, negating secrecy. In both cases it will never be clear that all relevant information has been revealed unless it is possible to go into the secret domain and at least do spot checks.
In order to actually be convincing the oversight needs to demonstrate that it (1) doesn’t suffer regulatory capture, (2) can access the information needed, (3) actually uses it to make relevant decisions. The general perception is that many elected leaders knew and seem to have accepted widespread surveillance, yet – given the current denials and confusion – either do not know the full picture or are captured in various ways. Even if this is an untrue picture it undermines trust in the legitimacy of the oversight system: who watches those watchmen? In the past we tended to trust authorities by virtue of them being authorities or having excellent character, but this default trust has been eroded. We recognize how power corrupts and how incompetence is everywhere, and few government officials today have reputations as incorruptible – especially when dealing with very powerful vested interests we can at least suspect could apply significant pressure against perceived opponents.
The way out is to add transparency and verifiability. James Clapper of the NSA actually gestured along these lines by declassifying some documents to argue that the ‘the program operates “within the constraints of law” and “appropriately protect[s] privacy and civil liberties”.’ Whether a selective declassification is enough to convince is another matter.
The problem with the view that national security overrides all other considerations is that it makes itself impossible to criticise: evidence and procedure must be secret, why they must be secret is secret, and so on. We cannot know whether the tradeoff is right because we are not allowed to see the effectiveness.
Even in a perfect world this would block the openness of society: open societies work because citizens can criticise any part of the system, demanding accountability, and the system itself can be changed to accommodate this if there is enough support for it. This is how mistakes and corruption get exposed and corrected, this is how the society is reshaped to fit the citizens rather than to fit some minority plan. It might not be quick, neat or easy, but it is a self-repairing and self-modifying system. But if there are aspects of the society that cannot be criticised or changed, then those are excluded from these mechanisms. Since mistakes happens even when people are dedicated and competent, even in the ideal world closed parts of society run the risk of becoming faulty. Add the realistic components of people covering up embarrassment, the possibility of corruption, regulatory capture and the existence of individuals with problematic agendas, and the existence of closed parts of societies become much more problematic. If they are also strongly empowered – legally and technologically – they become potentially very dangerous, no matter how noble the initial intentions were.
It is not hard to imagine, for example, how a well-meaning institution might fall into the trap Janet Radcliffe-Richards described in her Uehiro lectures that characterises politically correct thinking: given that you aim at a morally good thing, you become averse to accepting empirical findings or arguments that disconfirm this, or even discourage attempts at investigate such things. This is an is/ought mistake, but it makes the institution regard attempts at investigating or curtailing its powers as attacks on its well-meaning intentions. Hence, in order to safeguard those, the attempts must be thwarted and the groups attempting them also become suspect: what could they have against these good intentions? With powerful surveillance it will not be hard to find evidence that supports such suspicions…
Intelligence analysts will no doubt dislike this caricature: those I have met are remarkably devoted to reducing bias and actually finding true facts to guide sane decisions. But my experience with the information ecology of large institutions have also shown that cognitive biases can thrive even where the individual members are trying to avoid them – especially if management structures are not de facto rewarded for truthfulness and neutrality but rather for bureaucratic survival skills. It is easy to be overconfident in the niceness of ones own organisation. This is yet another reason oversight and transparency is needed.
Closedness sometimes bites itself. The kafkaesque FISA requests to companies for surveillance data make them unable to discuss the requests. One side effect is that now nobody will believe the denials from tech companies: if it is illegal to disclose surveillance, then no amount of denials, no matter how plausible, will ever assuage our concerns. The irony is that real regulations actually make conspiracy theory logic look reasonable. Conspiracy theorists think the absence of evidence is evidence for a cover-up: here the do-not-discuss orders make any denial pointless (not quite the same thing, but still a strong reducer of trust).
Even from a security standpoint these technologies are double-edged: while they allow amassing massive information invisibly, that doesn’t mean they will only deliver it to the intended recipients. The Petraeus scandal demonstrated that government officials are also ensnared in the net, even when they try to avoid it. Foreign governments have no doubt exploited mandatory eavesdropping functionality in telecom systems against not just their own citizens but also the interests of governments that mandated the systems in the first place. And it is not implausible that they provide tempting targets for many non-governmental groups, who can untraceably gather information for their own agendas. Since their nature and use cannot be freely discussed and analysed the problems they cause cannot easily be corrected.
When the government says law biding citizens have nothing to fear from government surveillance, the rejoinder is of course that law abiding governments have nothing to fear from transparency. Expansion of surveillance power must be balanced by an equal or larger expansion of transparency and accountability. Expansion of secrecy must be balanced by even more accountability – secrecy is in many ways, no matter how useful it can be, a more dangerous tool than surveillance.