Self-Policing In Response To Pervasive Surveillance

On Thursday night, in the course of conversation with some of my Brooklyn College colleagues, I confessed to having internalized a peculiar sort of ‘chilling effect’ induced by a heightened sensitivity to our modern surveillance state. To wit, I said something along the lines of “I would love to travel to Iran and Pakistan, but I’m a little apprehensive about the increased scrutiny that would result.” When pressed to clarify by my companions, I made some rambling remarks that roughly amounted to the following. Travel to Iran and Pakistan–Islamic nations highly implicated in various foreign policy imbroglios with the US and often accused of supporting terrorism–is highly monitored by national law enforcement and intelligence agencies (the FBI, CIA, NSA); I expected to encounter some uncomfortable moments on my arrival back in the US thanks to questioning by customs and immigration officers (with a first name like mine–which is not Arabic in origin but is in point of fact, a very common and popular name in the Middle East–I would expect nothing less). Moreover, given the data point that my wife is Muslim, I would expect such attention to be heightened (data mining algorithms would establish a ‘networked’ connection between us and given my wife’s own problems when flying, I would expect such a connection to possibly be more ‘suspicious’) ; thereafter, I could expect increased scrutiny every time I traveled (and perhaps in other walks of life, given the extent of data sharing between various governmental agencies).

It is quite possible that all of the above sounds extremely paranoid and misinformed, and my worries a little silly, but I do not think there are no glimmers of truth in there. The technical details are not too wildly off the mark; the increased scrutiny after travel is a common occurrence for many travelers deemed ‘suspicious’ for unknown reasons; and so on. The net result is a curious sort of self-policing on my part: as I look to make travel plans for the future I will, with varying degrees of self-awareness about my motivations, prefer other destinations and locales. I will have allowed myself to be subject to an invisible set of constraints not actually experienced (except indirectly, in part, as in my wife’s experiences when flying.)

This sort of ‘indirect control’ might be pervasive surveillance’s most pernicious effect.

Note: My desire to travel to Iran and Pakistan is grounded in some fairly straightforward desires: Iran is a fascinating and complex country, host to an age-old civilization, with a rich culture and a thriving intellectual and academic scene; Pakistan is of obvious interest to someone born in India, but even more so to someone whose ethnic background is Punjabi, for part of the partitioned Punjab is now in Pakistan (as I noted in an earlier post about my ‘passing for Pakistani,’ “my father’s side of the family hails from a little village–now a middling town–called Dilawar Cheema, now in Pakistan, in Gujranwala District, Tehsil Wazirabad, in the former West Punjab.”)

Is “Black Lives Matter” Aiding And Abetting Criminals?

This is a very serious question and deserves a serious answer. It is so serious that the New York Times has asked: Is “police reticence in the face of such protests, some led by groups like Black Lives Matter causing crime to rise in some cities”? The first answers are in. Those honorable folk, “the heads of the F.B.I. and the Drug Enforcement Administration said they believed that this so-called Ferguson Effect seemed to be real.” (The Ferguson Effect, which sounds like an atmospheric condition that produces high winds and heavy rain, is capable of creating law and order crises.)

In general, whenever black folk get uppity, crime increases. See, for instance, the wave of crime that spread through the American Deep South after the Civil War during the Reconstruction Era when freed slaves went on a rampage, killing, raping, and looting. Some folks blame that on white racists worried about the imbalance in the old power equations of the American South, but we should remind ourselves that the folks conducting those terrorist campaigns were riding around on horses while wearing white robes and hoods, so we will never, I mean never, know whether they were white or not.

We need not debate this question for too long. The FBI and the DEA–fine, upstanding defenders of civil liberties, and really, the first folks we should check in with when it’s time to evaluate political protest conducted by minorities–would never speak falsely on such matters. Besides, they have better things to do–like entrapping young Muslims in terrorist plots, arresting folks smoking that dangerous chemical, marijuana, and listening to the phone conversations, and reading the emails of, American citizens. (Some pedant will say I should be talking about the NSA but in this post 9/11 intelligence-sharing era, what’s the difference?)

We should be curious though about what such “police reticence” amounts to. Perhaps it means the following. Police officers will not be able to: fire sixteen bullets–known as ’emptying a clip’, I’m told–at black teenagers walking on a highway even ones with knives; come scrambling out of a car and begin firing, assaulting-a-Pacific-Beach style, at a twelve-year old playing with a toy gun in a children’s playground; shoot black men in wheelchairs; drive around a city with a ‘suspect’ in a paddy wagon, and then beat him to death; place sellers of illicit cigarettes in fatal strangleholds; shoot black men in the back, whether during an undercover drug sting or after a traffic stop; shoot black men who have knocked on doors seeking help; search, randomly and roughly, hundreds and thousands of young black men and women in their neighborhoods for looking suspicious.

The ultimate ramifications of such handicapping of our armed forces–sorry, police–are as yet, only poorly understood, but the contours of the resultant landscape are perhaps visible. Black folks will once again walk the streets; they will stay out late at night; they will go into white neighborhoods and mingle with the populace there. Of all the chilling effects of this new police caution, the last one, surely, is the most chilling. Black folks will be set free among us. The horror.

The NSA’s Bullrun Around Encryption

A few weeks ago, over at The Washington Spectator, I wrote a post on the NSA, which mentioned its historical–and historic–struggles with the pioneers of encryption:

[W]hen the NSA got wind of academic research on cryptography, its agents approached those working on such research and “suggested” that all such research be vetted by the NSA. Roughly, the NSA’s instructions to encryption researchers were: keep us apprised of what you are doing and run it by us for clearance before you release it to other academics.

It might have been the first time that a powerful covert government agency had suggested that academic research be controlled and monitored in this fashion: the NSA wanted nothing less than a monopoly on cryptography research. Given the NSA’s resistance to encryption reaching the masses, it’s a miracle we have it facilitating e-commerce today.

…[T]he NSA [and] the FBI…became more aggressive in attempting to prosecute those who made encryption software public.

For instance, the 1991 release of PGP (Pretty Good Privacy), a data encryption tool by developer Phil Zimmerman, was regarded as the “export” of a deadly weapon. It triggered a criminal investigation and ultimately failed prosecution of Zimmermann.

…We should not imagine that because the battle to bring encryption and privacy to the masses was won in the past that all future battles will be.

And today, I awoke to read this:

The National Security Agency is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age, according to newly disclosed documents.

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.

….Beginning in 2000, as encryption tools were gradually blanketing the Web, the N.S.A. invested billions of dollars in a clandestine campaign to preserve its ability to eavesdrop. Having lost a public battle in the 1990s to insert its own “back door” in all encryption, it set out to accomplish the same goal by stealth.

The agency, according to the documents and interviews with industry officials, deployed custom-built, superfast computers to break codes, and began collaborating with technology companies in the United States and abroad to build entry points into their products.

This is perhaps the most stunning revelation to have come from Edward Snowden yet. Privacy advocates have always suggested the use of encryption as a privacy-enhancing tool; these revelations show the NSA is winning the battle against it as well.

The NSA has now marked itself out as a truly distinctive agency: one that will stop at no measure–legal or not–to achieve its goals of complete surveillance. The almost perfectly asymmetrical relationship with secrecy that it has demanded and often, successfully created, has been one of its most astonishing achievements. This latest effort shows just how far it is willing to go.

Thus far, I’ve only read two news reports on Bullrun, the NSA’s anti-encryption program; I hope to write more on it once I’ve had a chance to read more about its details.

The Asymmetric Panopticon

As I’ve noted before on this blog–in unison with many other commentators–the ‘if you’ve got nothing to hide, then you shouldn’t mind the government spying on you’ argument is among the dumbest to be made in defense of the NSA‘s surveillance program. A related argument is the ‘we don’t have privacy anyway, so quit tilting at windmills.’

A composite assumption of sorts that emerges from these is that the citizenry has no privacy, has no reasonable expectation of any in today’s most notable sphere of personal, political and economic interaction – the Internet, and thus, should be prepared and accepting of essentially unlimited scrutiny of its activities by the government and even private corporations.

These assumptions, along with the wholesale swallowing of governmental and corporate rationales for secrecy in the face of shadowy external threats and proprietary imperatives respectively have led to a rather dangerous panopticon: we are visible at all times, under a steady and constant gaze, to these ever-powerful entities, but they, and their internal machinations are not. (As I noted in my post on Bill Keller last year, it has also led to incompetent journalists asserting that those who demand transparency about the government should disclose details about their personal lives.)

There is nothing remotely symmetric about this arrangement.

On the governmental end, more material than ever before is rated ‘Classified’ or ‘Top Secret’ thus ensuring that those who strive to make it available to the public eye face–as may be seen in the case of Julian Assange, Bradley Manning or Edward Snowden–prosecution and public ridicule. It is worth remembering that the government’s classification of material as ‘Top Secret’, which is the basis for legal prosecution of whistleblowers, is never up for contestation. Thus, one strategy to make transparency harder and whistleblowing more dangerous is to simply classify huge amounts of material thus. It helps too, to mount a furious barrage of accusations of treason and worse against the whistleblower. (A related strategy makes it harder to observe and record the work of law enforcement officers: New York’s S.2402 bill, will, if nothing else, make it much more dangerous to videotape police officers in action.)

On the corporate end, opacity is ensured by a bewildering combination of trade secrets, non-disclosure agreements, proprietary recipes, business methods, and the like; these ensure that those who collect data about us are almost always working in the shadows, away from the public eye, their machinations and strategies and imperatives poorly understood.

So, we find ourselves at this pass: we are told that we have no privacy and should not expect any, but those who want our data and use it to control the contours of our lives, have all the privacy they need and want and then some; we are told that if we have nothing to hide, we have nothing to fear, but those who collect our data surreptitiously are allowed to hide what they do.  (Frank Pasquale‘s forthcoming book The Black Box Society: Technologies of Search, Reputation, and Finance will analyze and highlight this alarming state of affairs. As Pasquale points out, transparency should be a two-way street; data disclosure agreements should require the collectors to make themselves and their methods known and visible.)

The tables have been turned and we are pinned beneath them.  We cower, while our data collectors strut and preen.

The NSA Needs Better Apologists than Charles Shanor

Professor Charles Shanor of Emory university thinks that ‘liberals and civil libertarians’ are making a mountain out of a digital molehill. Apparently, we should be reassured by the fact that the NSA‘s data collection was legal under the terms of the Patriot Act (you know, that civil liberties disaster), that FISA judges approved it, that select members of Congress–not all of whom were comfortable with it–were briefed about it. And as all three branches of government appear to be involved, Professor Shanor is at peace. Checks and balances are working.

But all is not well.

First,

We cannot rule out the possibility that the voluminous records obtained by the government might, some day, be illegally misused. But there is no evidence so far that that has occurred.

Perhaps we’ll have to wait for the next Bradley Manning or Edward Snowden to tell us if that happens, eh, Professor Shanor?

Second, Shanor seems mysteriously comforted by the fact that the government did not monitor call contents, that ‘only’ metadata was collected. Perhaps he should educate himself about the value of metadata, which ‘is frequently more valuable to security officials than the content of the messages.’ In particular:

For some communications, metadata matters more than content. “A call to a suicide hot line, Alcoholics Anonymous, or a gay sex chat room at 2 a.m. are all more sensitive” than the actual message, said Christopher Soghoian, principal technologist at the American Civil Liberties Union. “You can text political donations. The metadata shows your political leanings, the content just shows the amount you gave. Calling a cell tower away from my house in the middle of the night indicates I’m not sleeping at home.”

 But nothing quite shows Shanor’s cluelessness–technical, legal and political–like the following:

But shouldn’t I be concerned that F.B.I. agents are trampling my rights, just like the I.R.S. might have trampled the rights of certain organizations seeking tax-exempt status? As it turns out, the answer is no. The raw “metadata” requested will not be directly seen by any F.B.I. agent.

Rather, a computer will sort through the millions of calls and isolate a very small number for further scrutiny. Perhaps one of the numbers was called by one of the Tsarnaev brothers before the Boston Marathon bombings. Or perhaps a call was placed by a Verizon customer to a known operative of Al Qaeda. The Supreme Court long ago authorized law enforcement agencies to obtain call logs — albeit on paper rather than from a computer database — without full probable cause to believe a crime had been committed.

There we have it, folks: the Google-GMail defense. Don’t worry about a thing, because human eyes don’t read your emails, computers do. You know, those stupid machines that just happen to handle all our civilization’s data and which possess tremendous executive capacity. Shanor also notes a Supreme Court ruling authorizing the collection of call logs and cursorily notes that it applied to paper logs as opposed to those in a computer database. The latter, as is apparent to anyone who knows anything about digital communication, can be stored indefinitely and can be processed in much more sophisticated fashion.

Nice try, Professor Shanor. Next time, try renting a clue first.