Notes on PRISM, privacy and surveillance

Here are a few notes and links in lieu of something more rounded.

I have been away this week and unable to write anything on the PRISM revelations that have dominated the news over the past few days.  Here are a few notes and links in lieu of something more rounded.

At ORGcon, I did preface my remarks during the ‘free speech online in the UK’ panel to note that the right to free speech includes the right not to be surveilled.  If you think your conversations are being monitored, then you are not going to speak as freely as you may wish.  (I will post a longer reflection on the ORGcon discussion soon).

This week I did read an article by Daniel Solove in the Chronicle of Higher Education which summarises variations on the “if you have nothing to hide you have nothing to fear” argument for surveillance. It’s obviously extremely relevant given recent revelations surrounding the US Government’s PRISM programme.

Solove’s article is a frustrating read, because the arguments against surveillance are, like many human rights issues, bound up in ‘slippery slope’ or ‘boiling frog’ concepts that tend not to resonate with ordinary people. Public interest (and outrage) at privacy invasions only occur when rare real-life examples manifest themselves, as when the damage has already been done (the hacking of Milly Dowler’s mobile phone being the prime example).  Liberally minded people who oppose surveillance and privacy intrusions on principle need more sound-bites to compete with “if you have nothing to hide you have nothing to fear”. Solove lists a few candidates – “Why do you have curtains, then?” is probably the best retort.

Finding simple and persuasive arguments for human rights is not always easy.  Often, the argument for surveillance or censorship or the curbing of civil liberties is put in terms of counter-terrorism or preventing paedophiles and child pornography.  While these arguments are usually fallacious, they are nevertheless rhetorically persuasive for many people.  I hope to write something longer on the need to tell human rights stories that comfortable Western voters can identify with.

On a similar issue, the Overthinking It podcast this week had an interesting segment on the overuse and misuse of the term ‘Orwellian’ and the constant deployment of Nineteen Eighty-Four as a short-hand for the evils of a surveillance state.  Matthew Wrather pointed out that the covert surveillance being carried out by the NSA is very different to the overt surveillance that the inhabitants of Airstrip One are subjected to.  This is a pertinent point, related to my worries above.  The USA and the UK are not (yet) totalitarian states.  Shrill cries of ‘Orwellianism’ may turn people off any kind of deeper consideration of the issues at stake.  Drawing an exaggerated equivalence between the actions of the American intelligence agencies, and the activities of the Ministry of Love, might be counter-productive.  We need more sophisticated arguments which use real-world examples.

I also enjoyed a post on Wonkblog on the concept of the ‘democratic surveillance state’.  No, that is not an oxymoron.  Mike Konczal summarises the work of Yale academic Jack Balkin, comparing two models of how a government could approach surveillance.  First, the authoritarian model, which is how the USA currently behaves:

What do authoritarian surveillance states do? They act as “information gluttons and information misers.” As gluttons, they take in as much information as possible. More is always better, indiscriminate access is better than targeted responses, and there’s a general presumption that they’ll have access to whatever they want, at any time.

But authoritarian surveillance states also act as misers, preventing any information about themselves from being released. Their actions and the information they gather are kept secret from both the public and the rest of government.

The alternative is an more open and honest form data-mining:

What would a democratic surveillance state look like? Balkin argues that these states would be “information gourmets and information philanthropists.” A democratic surveillance state would limit the data it collects to the bare minimum. Meanwhile, maximum transparency and accountability across branches would be emphasized. Congress and the public would need to be far more involved.

A democratic surveillance state would also place an emphasis on destroying the data that the government collects. Amnesia used to be the first line of defense against surveillance. People just forgot things with time, giving citizens a line of defense against intrusion. In the age of digital technology, however, amnesia no longer exists, so it needs to be mandated by law.

As well as cute retorts to the ‘nothing to hide, nothing to fear argument’, I think human rights campaigners need to be turning the question back on governments.  If they truly have no malevolent intent, then they have nothing to fear from being more transparent.  I am sure some awkward questions could be formulated that would make defending mass surveillance very difficult to defend.

And that’s the point that needs to be made over and over again during debates about snooping and mass data-collection and retention:  Such actions by the government are privacy intrusions, and so the ‘burden of proof’ must lie with the government.  By which I mean, it should not be for privacy campaigners and human rights advocates to provide evidence for and reasons for maintaining privacy.  The onus should be on the government (and those in the pro-surveillance lobby) to prove that any extra powers are necessary.

Which leads onto the final link: ‘How did mainstream media get the NSA PRISM story so hopelessly wrong?‘  It turns out that the original reporting by the Guardian and The Washington Post glossed over some important technical details.  The PRISM programme does not allow the NSA direct ‘back door’ access to the servers of Google, Facebook and their ilk.  Rather, it appears to be an automated way to process the secret FBI and NSA court orders that force the big internet companies to hand over data.  This matters, because it absolves those companies of the charge that they enthusiastically facilitated the spying.

Accuracy matters, of course, and its likely that the grand claims being made for the PRSIM programme do not quite match reality. But I don’t mind admitting my pleasure at seeing powerful government departments, in the UK as well as the USA, being put on the back foot by these revelations.  Its a good thing that they are being subject to more scrutiny themselves.

So we should thank Edward Snowden for the public service he has done for world by telling us about these secret programmes.  I have been encouraging people to sign the Aavaz petition, demanding that Snowden be treated fairly and recognised as a whistle-blower, not a traitor.  It is nearing 1 million signatures, so please add your name if you have not done so already.

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