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Precarious privacy

This excerpt from the surveillance expert’s account of Surveillance after Snowden asks whether societies that permit mass surveillance at the expense of privacy are undermining the very possibility of politics.

David Lyon
7 January 2016
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Snowden masks. Mike Herbst/Flickr. Some rights reserved.Your rights matter because you never know when you’re going to need them.

Edward Snowden, March 2014

Let me tell you about Faisal Gill. He is a patriotic American, a Republican, served in the Navy, had high-level security clearance when he worked for the Department of Homeland Security under George W. Bush, works in his community, sent his children to a Catholic school, is a lawyer. It was revealed by Edward Snowden through Glenn Greenwald on 9 July 2014 that the NSA and the FBI have been covertly monitoring his emails under secretive procedures intended to target terrorists and foreign spies.

Why? He is a Muslim. As it turns out, this has happened to many other prominent American Muslims. As reported in 2011, the FBI teaches its operatives that ‘mainstream Muslims’ are ‘violent, radical’. Faisal Gill’s story is just one of many that has come to light thanks to Snowden. It raises questions about how these things happen – the Foreign Intelligence Surveillance Act was supposed to limit McCarthy-like witch-hunt excesses after 9/11 – about access to electronic communication, including emails and social media, by police, security and intelligence agencies. It also throws down a gauntlet about privacy rights, democracy and dignity.

This case is important because it shows that not only is Faisal Gill susceptible to surveillance, like anyone else within sight of the NSA, but he is also in a group singled out for special scrutiny, as an American Muslim. Thus his rights to privacy have not only been diminished along with millions of others, but they are, apparently, different from those in other groups. He was deeply disturbed to discover that he was being surveilled because he is fully aware that part of what it means to live in a democracy is to know what the government is doing and to have the chance to question it, if necessary.

The word privacy appears with great frequency among those who question the appropriateness of what the NSA and its partners do. Privacy unites a variety of oppositional figures of all political stripes in a post-Snowden world. This chapter explores what is meant by privacy and why it is indispensable. Privacy is a pivotal concept that helps to throw light on what is wrong with mass surveillance and there are many levels on which it can be used for this purpose. Privacy is also closely connected with other categories of complaint against mass surveillance, including rights such as freedom of association, speech, religion, conscience, movement – rights that are basic to democratic ways of organizing society.

Snowden’s own comments certainly point to privacy as a vital value and one that should be maintained by more than one means. Speaking in June 2014 on the first anniversary of the initial leaks, for example, he said that users should seize privacy, ‘take back the net’, by adopting encryption for their computers and digital devices. But he also argued for using political means – voting for those who would limit unnecessary and illegal surveillance, as a way of combating mass surveillance of the kind that his work has revealed. More broadly still, he often speaks of the need to eliminate mass surveillance as something that is incompatible with democratic practices. In this broader sweep, there are cases such as that of Faisal Gill. Post-Snowden politics also speaks to his situation. How do we square specific surveillance of Gill and his family, simply because they are Muslim, with living in a fair and just society?...

Privacy asserted: the back-story

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NSA headquarters at night. NSA/Wikimedia Commons. Some rights reserved.Wherever there is pervasive state-initiated surveillance, the same questions have to be asked. Privacy is under threat in new ways. How this is perceived varies from country to country but most agree that there is personal and social benefit from having a realm where people can think, write, talk, play or generally ‘be themselves’ away from the eyes and ears of others, especially those in authority. Privacy is often seen as having a number of dimensions: the choice to be let alone – ‘unhindered’, that is – limiting others’ access to the self, and rights to secrecy, control of personal information, personhood and intimacy. But these interpretations vary widely, especially beyond western countries that often seem to focus on individual rather than collective values.

Privacy is generally regarded as a ‘right’ or a ‘civil liberty’ associated with being a free person. The UN High Commissioner for Human Rights reminded us in 2014, for example, that ‘surveillance threatens individual rights – including to privacy and to freedom of expression and association – and inhibits the free functioning of a vibrant civil society’. The attacks of 9/11 provoked much interest in privacy around the world after national security policies were enacted that frequently infringed ‘informational privacy’. Personal data were crossing borders faster, more frequently, and with fewer controls than before. A key problem is that, typically, information privacy is often seen in law as less important than bodily or territorial privacy.

Yet, as the Snowden revelations show, facial images (body) or location data (territory) are often collapsed into a more bland general category of information relating to persons or groups. Privacy is also connected with living in a democratic society, where there are statutory limits to what government may do secretly, and where we should be able to disagree with the government without fearing the consequences. Why should any democratic government record someone’s opposition to anything from abortion and euthanasia to oil pipe-lines, factory farms or mines run from abroad and supported by foreign governments?

Why are privacy rights and democracy challenged by surveillance today? Both have been achieved only through long struggle and both are fragile and vulnerable. Like beautiful pottery, these things are easier to break than to mend. So how exactly does the surveillance which has been revealed threaten to crack open or break up privacy rights and democracy? And can we even talk about these in the same way in a digital, ‘big data’ era? In the northern hemisphere, with ripple effects around the world, 9/11 unleashed many challenges to privacy. The anti-terrorist laws that permitted this were – sometimes – publicly debated, but the agencies that carried them out tend to be highly secretive. The Snowden revelations show just what kinds of things happen behind the closed and heavily guarded doors of the NSA and similar organizations.

We have known since the 1960s about the tendency of police departments in North America, Europe and elsewhere to keep more and more population groups under surveillance, and since the 1970s that, in the name of national security, intelligence and communications agencies were doing the same. Since the 1980s a number of researchers have shown that this trend has been massively amplified by computerization. Note three things:

One, information and risk are central: by the 1990s policing and security was increasingly defined in terms of information-handling and its rationale was to manage risks. So the threats to privacy, rights and democracy after 9/11 came as no surprise, although public opposition to these trends never seemed strong or sustained, at least in North America. With the Snowden disclosures, a new and dramatic opportunity to respond to these challenges is presented. The evidence of international mass surveillance of the everyday lives of ordinary citizens grows with each new revelation.

Two, everyone is targeted: It is now widely known that mass surveillance means that ‘innocent bystanders’ are included in the NSA’s surveillance net, both Americans and citizens of many other countries – nine out of ten NSA communications touch innocent people like these. The colossal collection, storage and analysis of personal data – much of which seems trivial, fragmented, inconsequential – from numerous sources is much more difficult to pin down or even to see as an issue. In fact, as we have seen, privacy is everyone’s problem.

Three, individuals are ‘made up’: mass surveillance uses data in new ways that disconnect the data from the individual – I call it ‘personal data without the person’ – but the profiles created from such data gathering are often misleading, irrelevant and damaging to specific individuals or groups. The ways in which people are ‘made up’ by the data in these impersonal systems are far from incidental in the real flesh-and-blood lives of those people.

Privacy versus surveillance

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The NSA's Utah Data Center, taken by an employee of the Electronic Frontier Foundation during an airship flight. Unknown photographer/Wikimedia Commons. Some rights reserved.Privacy then, is a vital part of the Snowden story. Glenn Greenwald, for example, points out that when government or business says privacy is less important today, individual spokespersons do not believe what they themselves say. In the US, when Senator Dianne Feinstein asserted the NSA’s collection of metadata is not surveillance, online protesters demanded that she publish a monthly list of people she called and emailed, with details of where she was and how long she was in touch. It was inconceivable that she would agree, says Greenwald, because it was a ‘clear breach of the private realm’. True enough.

This is typical of the way that the concept of privacy is invoked as an antidote to surveillance. The concept is made to do much work – often with considerable success – in mobilizing the assessment of, and limits to, surveillance. But in order to explore privacy as a means of resisting increasing government surveillance – especially mass surveillance – much more has to be considered than what Senator Feinstein might not want to be revealed in a public inventory of her email and phone communications and personal itinerary, as Greenwald would be the first to agree. The Snowden revelations are about government surveillance of ordinary citizens, often in the name of national security, that goes well beyond the generally accepted targeted monitoring of those whom policing and intelligence agencies have reason to believe are a direct threat.

Snowden has pulled back the curtain on some huge surveillance secrets. Telephone and internet companies are implicated. The Dishfire program makes it possible for the NSA to scan 200 million text messages of US citizens each day. The NSA spies on world leaders – 122 of them according to Der Spiegel – often using their cellphones. It also intercepts phone calls across whole countries, such as Afghanistan, using a program called Mystic to ‘replay’ conversations from the past. The NSA weakens the security of the internet by cracking or circumventing attempts at encryption. The NSA’s TAO – Tailored Access Operations – hacks the internet worldwide and injects malware into the system.

Hardly surprising that ‘privacy’ appears with such frequency in outraged denunciations of the NSA. Citizens of not only the US but also of many other countries around the world know that their private calls, texts, internet surfing and emails are subject to scrutiny by the NSA and its partners. But the debates occur differently in different countries and opinion polls show considerable variations in public views of what privacy is, why it might be important and whether it may have to be ‘traded’ for more security at certain times of crisis. With the rise of social media, a further question is added to the mix: does privacy really matter any more when all kinds of personal information and images are voluntarily shared online? Knowing what is meant by privacy is vital if we are to work out what the appropriate responses to Snowden’s revelations are.

For example, an international poll taken in 2014 showed that, around the world, 64 per cent of respondents are more concerned about online privacy than in 2013. At 46 per cent Sweden had the lowest rise in the rate of concern about privacy since Snowden’s revelations, compared with 62 per cent in the United States. Increased concern about privacy was much more marked in Brazil, India and Nigeria, which each registered at 83 per cent. Although Americans also worry about the security of their information on the internet (only 31 per cent said it is secure), only 36 per cent have done anything to improve their privacy, compared to 69 per cent of Indian respondents.

Such international variations are important, reflecting different levels of dependence on the internet, among other things. While 77 per cent of Americans think that access to the internet is a basic human right, more than 90 per cent of respondents from China, Egypt, Indonesia, Nigeria and Tunisia say so. However widespread the agreement that much is wrong with the way that the NSA operates – this would be one good explanation of the increased concern about privacy – responses to privacy issues vary considerably around the world. And even when people say that they are concerned they do not necessarily attempt to do anything about it.

Why privacy matters

Privacy matters both as a vital value in itself and also for other practices that it supports – such as democracy. It is a robust way of questioning the growth of surveillance, and is undoubtedly the most widely used platform for mobilizing opposition to unnecessary and especially mass surveillance.

Thanks go to the author and publishers for permission to post this excerpt from Chapter 4 of David Lyon’s Surveillance after Snowden, Polity Press, 2015.

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