Monday, August 05, 2013

NSA spying and the transformation of the Internet (Updated)

A lot of people have responded to Snowden's revelations with a shrug, saying, "I have nothing to hide." But that misses the point. It's bad enough that private companies track our movements, tastes, habits, health and networks, all to sell us more stuff. But when governments do the same thing, creating a domestic spying industry 171 with hundreds of thousands of contractors, the potential for abuse is frightening.

That digital dragnet is what Snowden has been trying to bring into the open and reform: the Internet, once one of our greatest tools, can be turned against us.

History has shown that he is correct. The 20th century's targets of totalitarian states had almost nowhere to run. The enemies of Egypt's military coup, like them or not, are not so secretly being rounded up and arrested. And Snowden, the messenger in a global Internet-based spying scandal, is now a man without a country.

The Internet is not dead or dying. But it's not our best friend forever. And as America's spymasters and its global companies keep defending their digital dragnet, Snowden's revelations remind us what the Internet has become.
So writes Steve Rosenfeld in The Internet As We Know It Is On Its Deathbed Alternet 07/30/2013.

He's getting at an important aspect and likely consequence of the NSA spying program and the public revelations of it through the whistleblower Edward Snowden. That being, who wants to go through this? Who wants to become a whistleblower even against what look like serious crimes if you have to become a permanent fugitive sheltering in a foreign country, worrying that every change of government there may mean you have to run again? No doubt, it's quite a deterrent.

Snowden's revelations didn't themselves create some new era for the Internet. But they certainly seem to show that we've entered one.

Because of massive secrecy, we don't have a clear picture of everything the federal government is collecting and storing. But there are good reasons to assume that they are collecting and storing all electronic communications, all phone calls including recordings of the content, and maybe even all Web searches.

And according to the Obama Administration and the defenders of the surveillance state in Congress, this is all being collected legally. (I won't drive myself crazy with this, but in our current SpySpeak, "collection" doesn't mean tracking, recording and storing all this stuff, but only reading or listening to the contents. I'm going to stick to regular English in this post.)

So why should that data all just set there in the gigantic new storage facility that the feds are building and may already be in operation? Certainly, people have some ideas to put it to work: Eric Lichtblau and Michael Schmidt, Other Agencies Clamor for Data N.S.A. Compiles New York Times 08/03/2013; Marcy Wheeler, U.S. Justice: A Rotting Tree of Poisonous Fruit? Emptywheel 08/05/2013. Marcy's title refers to the judicial doctrine known as "fruit of the poisonous tree." If the cops come search your house without a proper warrant or some other accepted legal justification, any evidence they find there cannot be used against you in court. Nor can any other evidence secured based on information found in the illegal search; that's where the "fruit of the poisonous tree" concept comes in. (As fans of police procedural TV dramas know, if the state can make a plausible case that the police would inevitably have found the "fruit" anyway.)

Marcy also points to this story: Stewart Powell, NSA handing over non-terror intelligence San Francisco Chronicle 08/04/2013.

This is another version of the dilemma that Cheney and Bush created with their gulag system of "black sites" and Guantánamo. When you create a parallel "justice" system, you not only do a lot of unnecessary harm and injustices to people. But you wind up having to recreate the wheel. After detaining and torturing people for years, the government had to eventually come up with a procedure to judge the guilt of the detainees. But for any halfway honest justice system, evidence collected via torture can't be allowed. So we've wound up with the bizarre situation that it's near-impossible to try detainees the government thinks are guilty. But we're also holding detainees indefinitely that the government no longer even claims to think are guilty of anything.

The same thing is happening with the massive surveillance state. It's justified as protecting us against The Terrorists. But such massive surveillance, justified under a secret law and governed by a secret court whose decisions are secret and whose judges are appointed by authoritarian-segregationist Chief Justice John Roberts, is incompatible with democratic governance and a fair justice system. And those conflicts will only grow if the surveillance Kraken isn't reigned in. The defense has to be able to contest the source of the information and the chain of evidence-collection in a meaningful way in order to provide a fair trial.

The Kraken

In theory, this could be used to benefit defendants, as well. Apparently, the NSA is sweeping so much information that they must have evidence relating to just about every criminal case in the US. If they are providing some of it to the prosecution, why shouldn't they have to provide it to the defense? For that matter, shouldn't there be an obligation to turn exculpatory evidence over to the defense? If that were done systematically, local cops might have to start behaving a lot better!

So, just as with the Bush Gulag (as Al Gore called it), the Cheney-Bush-Obama surveillance state is now having to recreate the wheel by building a parallel justice system, one that is increasingly starting to collide with the main justice system.

Oh, the DEA is in the act, too: John Shiffman and Kristina Cooke, Exclusive: U.S. directs agents to cover up program used to investigate Americans Reuters 08/05/2013. Speaking of poisonous trees, the War on Drugs is a tree that is the source of a lot of the poisonous fruits in violations of privacy and civil rights, the militarization of police and the overcrowding of prisons. This news prompted this mini-rant from Ana Kasparian at her Facebook page today:

So the NSA is now taking the info they collect by spying on us, and sending it to the DEA so they can prosecute us for drug use. On top if all that, the DEA lies about where the information originated from, which destroys our right to a fair trial. America is NOT the land of the free. Our rights are being destroyed right in front of our eyes. THIS is why Snowden is an American hero. He revealed the tip of the iceberg, and it's up to us to respond accordingly.
(Update: Bmaz at Emptywheel provides some background on this news in About the Reuters DEA Special Operations Division Story 08/05/2013)

There is reason to think that the government is being just plain dumb and needlessly abusive in some of its searches. Like this case that recently drew some attention: Natasha Lennard, NSA at work? Writer says house raided after online browsing Salon 08/01/2013; Michele Catalano, pressure cookers, backpacks and quinoa, oh my! Writing Out Loud 08/01/2013; Watertown Redux? Cops, not Feds, Raid House in New York Somewhere BagNewsNotes 08/03/2013.

This is how repression works. Not primarily by busting everybody that steps out of line. But by creating a consciousness that if you step out of line, you might get in trouble, even really serious trouble. So, for instance, if you read about the Boston Marathon bombers using pressure cookers to make explosives and were curious about how that could be, you might have wanted to google something like "pressure cooker explosives" or "pressure cooker bombs." But normal curiosity might get you a visit from a Counter Terrorism Task Force, which most people presumably prefer not to have.

Okay, so most people who aren't terminal news junkies may not bother. But what does it do to the liberating potential of the Internet that has been so much discussed the last two decades? It doesn't end it. But the popular notion that the Internet provides an inherently democratic platform that can't be stifled by governments has to be revised.

Joshua Yaffa reports on how Putin's government in Russia is asserting greater control over speech over the Internet in Is Pavel Durov, Russia's Zuckerberg, a Kremlin Target? (print title: "The Flight of the Russian Zuckerberg") Bloomberg Businessweek 08/01/2013 talks about the Putin government's attempts to bring VKontakte, the leading social networking site in Russia, more under state control. The online version omits the following paragraph, which is fifth from the end in the print version:

The change in VKontakte's ownership occurred at the same time the Duma was extending the state's ability to monitor and filter Internet content. Last summer it created a so-called blacklist law that requires providers to block access to sites deemed to contain child pornography, material on drug use, or calls to suicide. On May 24, VKontakte was entirely blocked for several hours when it was placed on the blacklist. The state agency responsible for maintaining the register of banned sites said it was a "mistake," but some inside the company took it as a warning.
Both versions contain these paragraphs which follow the one just quoted in the print edition:

The Duma passed another law calling for the blocking of sites with pirated content. Given VKontakte's trove of free music and video, this legislation could be an even more immediate threat to the company. In mid-June, perhaps to get out in front of the pending regulations, it began a massive campaign to delete unlicensed songs on user pages at the request of a law firm representing Universal Music (VIVHY), Sony Music (SNE), and Warner Music.

The crackdown may be the first step toward what Sergei Zheleznyak, the deputy speaker of the Duma, has called "digital sovereignty." That would mean even foreign Internet companies such as Facebook would be forced to place their servers in Russia, making such sites more liable to monitoring or blocking. Such a move would resemble the Chinese setup, in which the state simultaneously pushes users toward homegrown versions of social networks over which it has more sway — such as Baidu (BIDU) in China, or perhaps VKontakte in Russia — while demanding greater access and compliance from foreign companies operating in Russian territory. Before, says Soldatov, the Russian authorities would "ask to remove content, not to be given a back door." That may be changing. [my emphasis]
This doesn't mean that the political-liberating potential of the Internet is shot. Size matters, or in this case volume. The NSA is vacuuming up and storing such staggering amounts of information that the monitoring potential is inherently self-limiting. Because most of what they're getting is irrelevant to either actual crimes or political dissent. They are creating many haystacks of information in which they hope to locate needles. It certainly could lead to needless annoyance for people who trade recipes via e-mail, Facebook or telephone that involve a "pressure cooker." But who knows what dangerous and subversive ideas people might pick up from reading John Locke or Benjamin Franklin online?

But it does mean that governments of overtly authoritarian and more ostensibly democratic casts have been able to go much further in controlling and monitoring the Internet than some of the more enthusiastic digital libertarians may have hoped.

Finally, there's the question of how this will affect online business. With social networking sites such as Facebook suffer as more people decide that they would prefer to share hardcopy photos of the family picnics instead of posting them on a social networking site? I would be amazed if in the wake of the Snowden revelations and other related reporting if foreign corporations aren't looking for ways to avoid exposing their information to American Internet companies. Most of them presumably don't want to have the NSA sweep up their trade secrets and give them to American competitors. And, for that matter, American companies have a legitimate worry that the NSA will take their information and share it with some business that has better crony-capitalist connections to whatever Administration is in power at the moment.

This gives me a chance to roll out one of my favorite history quotes: "When philosophy paints its gray on gray, then has a form of life grown old, and with gray on gray it cannot be rejuvenated, but only known; the Owl of Minerva first takes flight with twilight closing in. - G. W. F. Hegel, "Preface," Philosophy of Right. That was his dramatic way of saying that we can't really understand an era until it is ending. And it looks like some important phase of the Internet phenomenon may be coming to an end. Globalization meets "digital sovereignty"?

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