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#10 2013
10 min read

USA: Larry Siems about NSA and digital surveillance

What kind of harm really comes from the surveillance exposed by Edward Snowden and other activists? We need to know more, says Larry Siems, writer and director of PEN America's Freedom to Write Program. Even so, the US already has hints of what a “chilling effect” looks like.

Credits Text: Larry Siems October 23 2013

“You Need the Haystack to Find the Needle”
--General Keith Alexander, Director, U.S. National Security Agency

In a viral, satirical ad for the U.S. National Security Agency that I printed out a couple of years ago and keep posted above my desk, a woman holds her head, clearly in distress.

“Lost your car keys?” the ad asks.
“The government saw you leave them on the dresser,” it answers helpfully, adding an extra punch line: “You’re welcome.”

Spinning surveillance as a public service that exists to save us from ourselves is laughable, of course: nobody in the White House or U.S. spy agencies has yet tried to claim they’re collecting our private information to help us overcome our personal shortcomings. Instead, we’re told over and over that our government’s exponentially-expanding surveillance powers are protecting us from the shortcomings of others, shortcomings of another scale entirely: blind hatred, warped values, murderous intent. Caught this summer with his hand in the world’s collective information cookie jar—or, better imagined, in billions of household cookie jars in every corner of the earth—NSA Director Gen. Keith Alexander told Congress that the telephone and internet monitoring programs whistleblower Edward Snowden had just disclosed helped prevent over 50 “potential terrorist events” since the September 11, 2001 World Trade Center and Pentagon attacks.

It’s hard to argue with that—and not just because, bubbled in secrecy, it is impossible to know if the claim is true. In fact, it doesn’t matter much if the number of foiled plots is 5 or 5,000, or if there has been one at all: measured against the harm that would come from a successful attack, the wholesale sifting of digital information seems to make sense. And yet we’re clearly not comfortable with the NSA’s brave new world; General Alexander was not appearing before Congress this summer to receive the thank yous of a grateful nation. We know something about all this is wrong. But what? So far we haven’t been able to counter the claim that all this trolling of our personal communications is for our own good with a convincing explanation of how the surveillance itself is harming us.

Five years ago, the American Civil Liberties Union filed a lawsuit on behalf of PEN American Center, Human Rights Watch, Amnesty International, and other human rights organizations challenging the constitutionality of the NSA’s secret telephone and internet surveillance programs. First the Bush and then the Obama administration fought to have the lawsuit dismissed, arguing that because PEN and its co-plaintiffs couldn’t actually prove that our communications had been monitored under the top-secret program, we couldn’t show we had suffered harm from the surveillance, and so we lacked the “standing” to sue. Earlier this year, in a 5-4 decision, the U.S. Supreme Court sided with the Obama administration and dismissed the suit.

Now, thanks to Snowden, we know that our international emails and telephone conversations are being read under the PRISM program; not only that, our telephone providers are compiling and making available to the NSA the “metadata” on every call we make—who we call when, how long we talk—even within the U.S. The ACLU has filed a new lawsuit, and with these new revelations, the organization should be able to establish “standing” to pursue the case. But when it comes to trial—assuming the Obama administration doesn’t invoke “state secrets,” as it has done to scuttle lawsuits stemming from the U.S.’s post-9/11 torture program—the government will almost certainly argue that collecting the ACLU’s phone data has not been damaging to the organization.

So how do we know that surveillance is a bad thing? If you pose that question to ten people, my guess is that nine of them will point in one of two directions for evidence: to notorious authoritarian surveillance states, or to their bookshelves. East Germany (the Stasi, The Lives of Others); Iran (under the Shahs and now); China (a country where I’ve seen reporters remove the batteries from their cell phones and leave them in the hands of someone across the room, convinced they’re transmitting even when they’re powered down)—we’ve seen plenty of states that have used surveillance to control their citizens. We know regimes like these have targeted creative communities especially, fearing their habitual unruliness and resistance to orthodoxies. Gilead, Panem, Camazotz, the World State—we’ve also read dozens of versions of societies where, in an imagined not-too-distant future, technology brings not freer and more diverse expression, but ever more invasive, repressive states.

But the United States today is not East Germany in the 1970s; it is not Oceania. So how useful are those models? Yes, those surveillance states are manifestly harmful to freedom of expression, but is that harm in the surveillance or the authoritarianism? Our new, democratic surveillance states are operating, we’re assured, with the narrow purpose of protecting “we, the people” from terrorist attacks: where’s the harm in that?

At least two communities in the United States are offering preliminary answers to that question.

“Proponents of the sprawling surveillance enterprise have argued that, regardless of its inefficiency, mere spying on a community is harmless because it is clandestine and that those who are targeted should have nothing to fear, if they have nothing to hide,” wrote the authors of a report entitled “Mapping Muslims: NYPD Spying and Its Impact on American Muslims,” released in March of this year. The reality the researchers uncovered was very different:

We have found that surveillance of Muslim’s quotidian activities has created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life. Surveillance has chilled constitutionally protected rights—curtailing religious practice, censoring speech, and stunting political organizing. Every one of our interviewees noted that they were negatively affected by surveillance in some way—whether it was by reducing their political or religious expression, altering the way they exercised those rights (through clarifications, precautions, or avoiding certain interlocutors), or in experiencing social and familiar pressures to reduce their activism.

Around the time that report was published, revelations that the U.S. Justice Department had examined the phone records and emails of two reporters highlighted the dangers to another community. In an article in The New Republic in May, Molly Redden traced the chilling effect of governmental scrutiny of journalists reporting on national security issues. Redden wrote,

New York Times reporter Eric Lichtblau told me in an email that, after writing a Pulitzer Prize-winning series of stories with James Risen that revealed major clandestine counterterrorism programs under Bush, like warrantless wiretaps, ‘I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story.’ Nearly every national security reporter reached Tuesday had similar stories to tell, as do plenty of their peers. Lichtblau said the subpoena threats from the DOJ were “the trigger” that caused him to quit writing national security stories in the closing days of the Bush administration….Rather than roll the dice with incoming Attorney General Eric Holder, Lichtblau decided to cover money-and-politics instead.

For American Muslim communities and for national security journalists, the awareness of surveillance is coupled with the sense that they themselves are being targeted. For the rest of us, the surveillance feels general and indiscriminate—and since we don’t feel targeted, we don’t seem to mind that the straws of our personal communications are being vacuumed up into that enormous haystack General Alexander has said he needs to help him find his needle. That needle isn’t me, we reason, so there’s no harm in being in his haystack. Especially if it helps him do his work.

But as any farm boy who ever tried reclining on a haystack knows, every straw can become a needle. I don’t know exactly how the new surveillance state is harmful, but in looking for answers to that question, this is where I’d start: We should remember that the haystack the NSA is searching is all straw; it’s entirely composed of the expressive activity of individuals. Any number of those straws, grabbed a certain way, can feel like needles.

We should remember, too, that the NSA’s phone and internet haystack exists in a field full of haystacks made up of personal financial and medical data, records of consumer behavior, surveillance camera footage, social media exchanges, and on and on—and that together that field of haystacks adds up to what John Villasenor, a professor of electrical engineering at UCLA, calls a “surveillance time machine.” Villasenor coined the term in the 2011 report “Recording Everything: Digital Storage as an Enabler of Authoritarian Governments”; he was warning of a world where people, in effect, are surveilled even before they become suspects. “If an anti-regime demonstrator previously unknown to security services is arrested,” he explained, “it will be possible to go back in time to scrutinize the demonstrator’s phone conversations, automobile travels, and the people he or she met in the months and even years leading up to the arrest.”

Villasenor was writing of authoritarian regimes, but we should keep in mind how tempting this field of haystacks will be in democratic societies, too, and not only to governments—and how what may look like a straw to the NSA can easily become a needle in the hands of the IRS, or a divorce court, or a vengeful local cop, or a business rival.

Finally, we need to think about the fact that that though NSA surveillance programs seem to operate, like all digital technologies, on a binary model—ones and zeros, this-or-not-this, threat or not-threat, them or us—that is not the case. To the NSA we’re all potentially zeros, them; the NSA needs everything because every one of us is, or could become, suspicious. We need to think about how that view accords with foundational legal concepts, from due process to the distinction between thought and action; with ethical and religious precepts like free will and responsibility; and with our most basic human values and experience. And we need to think about how holding that view will only compel the NSA to know more, never less, and to recognize that, in a world of endlessly proliferating straws of personal information, that way madness lies. We need to do a better job of explaining why this new surveillance is bad, and soon, so we can save our spy agencies from themselves.

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