Surveillance: finding the culprit

We scrutinize the state for its Orwellian ambitions, but not the structures that render them feasible. Privacy debates have engaged with issues of political power and sensationalist culture, with little attention paid to the third factor  – the economic context. 

Martin Eiermann
11 February 2014

Has the surveillance state gone whacko? Have executive powers spiraled out of control? Has the internet – true to its roots as a Pentagon-sponsored DARPA research project – become a tool for military and intelligence agencies? Do we need more regulation and better oversight? Without doubt, it’s good and important to ask those questions and to worry about the impact of state surveillance for the future of the internet.

Chatham House recently announced a two-year inquiry that aims to explore the potential pitfalls under the leadership of one of the world’s most digitally engaged politicians, the Swedish foreign minister Carl Bildt. But I worry that it misses the forest for the trees. More specifically: by reducing debates about the future of the internet to debates about policy decisions, we afford undue attention to the state. We cling to a notion of power that barely describes the world around is, and that fails to account for the vast changes in the techno-cultural landscape over the last two decades. 

Let me briefly recap the dominant narrative of the Left. I’m undoubtedly riding roughshod over the subtleties of the argument, but I hope that the exaggeration of differences can help to illuminate important points of contention. The narrative goes like this: Under the guise of national security and counter-terrorism agendas, surveillance has been turned into a seemingly inevitable practice – a mode of living, if you will –, and is undermining the liberal state as well as the spirit of digital openness. It is leading to illiberal regimes at home and illiberal practices online. It abandoned the idea of privacy while shielding state practice from oversight. In effect, we are living through a time of techno-imperialism as states try to bring large amounts of data under the control for the purposes of surveillance, industrial espionage, the silencing of dissent, et cetera. Those who attempt to draw a clean line between Syria’s attempts to expose online activists or restrict internet access and the NSA data crawlers employ an unfortunate double standard. The real culprit is excessive state power.

Some of the ideas that have come out of this narrative are outright silly: A European proposal to keep data transmissions within national borders (and thus to prevent data phishing at overseas hubs) runs against the basic infrastructure of the internet. Whenever data is sent over an internet connection, it is broken down into small data parcels and routed through the best possible connection to its destination, where the parcels are reassembled. For example, an email sent from New York to San Francisco could travel through Frankfurt and Beijing (or simultaneously along different routes) before returning to US soil.

It’s a system that is incredibly efficient and an important safeguard against attempts to balkanize the open internet. Changing the basic infrastructure would require a wholesale re-organization of the web, akin to attempts to replace the human capillary system with an altogether different way of transporting oxygen to the muscles. It’s just not going to happen. So let’s agree that we are really talking about front-end reforms: About the ways in which the internet is used and abused, and about the regulation of those behaviors. 

But what about state control at the front-end level? It’s a justified fear; governments from Tunisia (monitoring of activists) to China (restricted website access and content censorship) to Britain (social media monitoring by police) to the United States (the NSA) have muscled their way into the digital realm. The dark web offers some refuge for those who prefer anonymity (for good or ill), but the average user should fully expect to be monitored by a wide range of government agencies

However, I’m not entirely convinced by the narrow focus on the state. Historically, our privacy norms emerged from the interplay of economic forces (the rise of the modern factory and the separation of work from domestic life), technological changes (the advent of photography and its use by the tabloid press), and political agendas (attempts to strike a balance between the power monopoly of the state and the ideal of the free individual). But as Jeffrey Rosen recently pointed out in the New York Times, privacy initiatives only responded to two of three factors: James Madison warned against “the abridgment of freedom of the people by gradual and silent encroachments by those in power”, while Louis Brandeis took the journalists of his time to task and lamented that “each crop of unseemly gossip, thus harvested, becomes the seed of more and, in direct proportion to its circulation, results in the lowering of social standards and of morality.”

For more than a century, privacy debates have engaged with issues of political power and sensationalist culture, but little attention was usually paid to the third factor  – the economic context – even as Fordist industrialists re-established control over the lives of their workers by providing housing and entertainment, and thus company oversight outside the factory gates. We’re in a similar position today: We scrutinize the state for its Orwellian ambitions, but not the context that renders them feasible. 

Let’s turn to two grand masters for guidance. Kevin Kelly, internet evangelist and founding editor of WIRED Magazine, had this to say when we met in 2011: “I tend to think that technology is not really powerful unless it can be powerfully abused.” In other words: The gathering and exploitation of private information illustrates the power of digital technologies rather than the haywire agenda of an intelligence agency. It’s the logical consequence of the power and promise of the internet.

Paradoxically, the open structure of the internet  – the Digital Commons – explains the meteoric rise as well as the potential for excessive data gathering: The focus on sharing, the easy compatibility across platforms, the exponential growth of server and cloud storage, and the open structure of basic transmission protocols are incredibly well suited to the rise of a dense global network and the accumulation of digital information, but are also ripe with opportunities for abusive exploitation. Just ask any professional spammer: never before could so many people be reached at marginal costs through automated mass emails. 

Kelly’s observation reflects the insights of another evangelist and newspaper editor of the 19th century: Karl Marx. Writing in Das Kapital, Marx observed that capitalism’s rise was predicated on the exploitation of common land by entrepreneurial elites. Access to precious resources was privatized and protected through property legislation. The economic exploitation of the commons was the driving force behind the accumulation of capital, protected by the re-regulation and re-definition of property relations. The legislative agenda of the industrial state reflected the economic interests of the early industrialists, and vice versa. 

Those two insights – about the exploitation of open structures by powerful interests, and about the alignment of political and economic interests – remain valid today. 

Despite the outspoken criticism of many internet companies against surveillance efforts, we are experiencing a peculiar historical period in which the data interests of the state and of private companies frequently align (although not always seamlessly), and in which their respective aspirations are rendered possible through rapid technological progress. Google and the White House might disagree over the NSA’s data collection, but agree on the importance of data accumulation and exploitation. Their aims are different: Google, Facebook and Co. require vast troves of data and the ability to analyze them to render their business models viable in the long run. Governments desire the same troves to combat crime or terrorism, or to conduct espionage against international competitors.

But both rely on a cultural climate in which people share freely and relinquish control over their personal data, and in which many traditional legal guarantees no longer apply. For example, the non-application of the “Third Party Doctrine” to digital technologies empowers Google to display personalized ads based on the content of your emails, and allows the government to conduct vast data sweeps without explicit court authorization. 

We can and should distinguish between different aims – arguably, better search results are a desirable thing but the mass monitoring of email traffic is not –, yet we should also recognize the impossibility of separating the good from the bad. To return to the metaphor of techno-imperialism: Just as the British Empire was built on capitalist expansionism rather than military conquest, the future of the internet is driven by a coalition of interest groups that defies classification as “the State”.

At a basic level, we’re not witnessing the usurpation of the internet by the state, or the highjacking of Silicon Valley by the security-industrial complex, but an alignment of interests from both sides. The search for clear culprits doesn’t help the debate: It often leads to cries of outrage against the usual suspects (it’s gratifying to see James Clapper flop before a Congressional Committee), and exempts the rest from scrutiny. We condemn the mobsters but not the environment within which they can operate. 

So let’s not fool ourselves: the future of the internet isn’t determined by the outcome of the NSA debates or by policy decisions made in Washington. Does it help to strengthen regulatory bodies? Unequivocally so. Should the export of surveillance technology be subjected to the same scrutiny as the export of military weapons technology? Of course. Should Congress reclaim power from the White House? Probably. The question of power imbalances is of central importance. But the narrow focus on the state also belies the realities of the early 21st century. The state was never the only game in town, and it certainly isn’t today. 

If there is a meta-story to the last eight months, I think it goes something like this: We can finally stop to talk about digital technologies as a graven image. They are made by men, and thus subject to all the hopes and fallibilities of man. They are sites of contestation and objects of power struggles among economic, political and cultural forces. And the exposure of surveillance practices is above all else an opportunity to dig into the capillaries of power, to map and scrutinize them, and to broaden our critique beyond concerns about the excesses of the liberal State. 

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