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.”)

Are There No Ethically Uncompromised Lunches In The Universe?

Once upon a time a farmer told his neighbors that they could use his land for ‘free’–as a kind of community recreational space. His neighbors were told they could set up little stalls. where they could play music, show off their handicrafts, display family photo albums, and of course, walk over to their friends’ spaces and chat with them. A large sign in small print that hung outside the entrance to the field informed the farmer’s neighbors how they should behave when they were on the premises. Most families stopped briefly to read the sign but intimidated by the number of the words on the sign, and the twisted prose, which appeared to have been composed by committee, they moved on, trusting their neighbor to do well by them.

The community meeting and recreational space soon bloomed; the number of stalls grew rapidly. The local residents got to know each other much better and many enjoyed the opportunity to inspect the personal details of their neighbors’ homes and lives. Indeed, a visit to the ‘meeting space’ became an integral part of most people’s routines; stop in for a bit, ‘check in,’ say hi to a few folk, show off your new baby, brag about your car, your vacation, and so on.

The local folk often wondered why the farmer had been so ‘generous.’ What was he getting in exchange for this ‘gift’? Cynics talked about the impossibility of free lunches, and sure enough, it was becoming clear there wasn’t one to be had in this ‘community space.’ For the benevolent farmer was indeed exacting a price of sorts.

The farmer had many business associates who wanted to sell the locals their goods–fertilizer for their fields, goods that could be gifted to their children on their birthdays, clothes to be worn at their weddings, and so on. To find out what the locals’ tastes were would have required conducting expensive, tedious market surveys; the farmer’s business associates would have had to go from door to door, asking people to fill out forms. But in this space, the farmers neighbors happily gave this information away without being asked. And the reason this information was ‘given away’ was that it was ‘being taken’ as well.

Hidden cameras and microphones recorded their comings and goings and sundry activities: who they met, what they ate at their friends’ stalls, and indeed, what they ate at home, because the locals proudly showed photos of their food at their stalls (you could build some walls around your stall but most people, finding the construction of these to be too onerous, just went in for a wall-less design), what clothes they wore, who their ‘best friends’ were, who they talked to for medical advice, who they asked for help when the going was tough, what kind of music they listened to (and played for their neighbors by way of demonstration.)

When news of the hidden cameras and microphones broke, some of the locals were irate. They didn’t like the idea of being ‘spied on’ and worried that the local potentate, always eager to exert his control over the land just a little more efficiently, would find this sort of information very useful. Yet others thought that the local robber barons, who controlled the potentate in any case, would grow more powerful as a result of knowing so much about them. And some complained that the hidden microphones sometimes reported their conversations and displays to the farmer, who cracked down on them if he didn’t like what they said or what they showed off.

But others hushed their concerns, using that ancient piece of wisdom, which the robber barons themselves had promulgated: How can you look a ‘free’ gift horse in the mouth? You got to use this space for ‘free,’ didn’t you? When the locals said that they hadn’t signed on for this surveillance, yet others told them to read the sign on the entrance carefully, and if they didn’t like it, to leave, and to take their stalls with them. So some did even as they said the sign on the entrance was vague and unspecific. Yet others, finding that the space had become an indispensable arena for communication for matters pertaining to the local village and shire, stayed on.

But many continued to ask themselves: Was it a fair ‘deal’? Indeed, was it a deal at all? Had the farmer really behaved like a neighbor in spying on his neighbors after he had invited them to use his land for ‘free’? Did the non-existence of free lunches in the universe entail that those lunches had to be ethically compromised too?

Facebook and Writers’ Status Messages

My last post on Facebook led me to think a bit more its–current and possible–integration into our lives, especially those conducted online.

As ‘net users are by now aware, almost any site you visit on the ‘net features a Facebook button so that you can indicate whether you ‘Like’ the page and thus, share it with your ‘Friends.’ Of course, in so doing, you also leave a digital trail of sorts, indicating what you have read, what music you have listened to, which videos you have viewed, which jokes you found funny, and so on. As Eben Moglen put it rather memorably at a talk at NYU a few years ago, (and I quote from memory):

In the old days, the East German Stasi used to have to follow people, bug them, intimidate their friends to find out what they read, what they got up to in their spare time. Now. we have ‘Like’ buttons that do the same for us.

The surveillance, the generation of data detailing our habits, our inclinations, our predilections, is indeed quite efficient; it is made all the more so by having outsourced it to those being surveilled, by dint of the provision of simple tools for doing so.

I personally do not get very creeped out by the notion of hitting ‘Like’ on a article that I enjoyed reading–though, struck by Moglen’s remark, I have not done so even once since returning to Facebook in 2010. I do however find it very creepy that Netflix asks me if I would like to share my movie viewing preferences with my friends on Facebook; that seems excessively invasive. 

In any case, I do not think the limits of this kind of ‘integration’ of Facebook with the information we consume and the software we use have yet been reached.

Here is at least one more possible avenue for Facebook’s designers to consider. Many ‘net users access it via an ‘always-on’ connection. Thus, even when they are not actively using an Internet application–like say, a word processor, or a spreadsheet–they are still connected to the ‘net. In the not so distant future, these programs could be designed–by close cooperation between Facebook and the software vendor in question–to supply information about our usage of these applications to our ‘Friends.’ On a real-time basis.

Thus, for instance, when I would open a file on my word processor, my ‘Friends’ would be so informed; they would then learn how long I had continued editing, how many breaks I took, (and of course, if those breaks were online, they would be told which pages I had opened, and how long I had spent there), and so on. Our software would come with this feature turned on; you would have to opt-out or customize your sharing.

This way, all those status messages we are often treated to on Facebook: ‘Hooray, first draft complete!’ or ‘Finally got five hundred words written today’ or ‘I just can’t seem to get anything written today’ could be automated. Extremely convenient, don’t you think? Examples like this–for other kinds of applications–can be readily supplied, I’m sure.

Nice Try NSA-Defenders (Not!)

There are two very bad arguments and one rather illiterate confusion making the rounds in the wake of the NSA surveillance scandal. I’ll consider each of them briefly.

First, we have the ‘it was legal’ argument: the surveillance was sanctioned by the Patriot Act, approved by FISA courts, and Congress was in the loop etc. Now, the elementary distinction between legality and morality, between what the law permits and proscribes and what we might consider the right thing to do is just that: elementary. The undergraduates in my Philosophy of Law classes don’t need to be introduced to the distinction between natural law and positive law or to the assigned readings which inquire into our supposed obligations to the law to understand and know this difference. Their lived lives have given them ample proof of this gap as have the most basic history lessons. (Slavery is everyone’s favorite example but many more can be found rather easily.) Indeed, why would we ever have impassioned debates about ‘bad laws’ that need to be revised if the ‘it’s legal’ argument was such a clincher?

Furthermore, the folks complaining about the NSA surveillance are not just complaining about the legality of this eavesdropping and surveillance: they are suggesting the application of some laws is an onerous imposition on them, one that grants the government too much power. They are suggesting this is a moment when the laws of the land require revisitation. This is especially true of the obnoxious Patriot Act. (In another context, consider the draconian Digital Millenium Copyright Act.) Or consider that FISA courts routinely approve all requests made to them, and that the NSA has seven days in which to mine data before it applies for a warrant. All of this is legal. Is it problematic? We could talk about it so long as we aren’t shut up by the ‘its legal’ argument.

Second, we have the vampire ‘if you have nothing to hide, then what do you have to worry about’ argument – it simply refuses to die. No matter how many times it is explained that privacy is not about the hiding of secrets but about the creation of a space within which a certain kind of human flourishing can take place, this hoary nonsequitur is dragged out and flogged for all it is worth. But let me try real quick: we need privacy because without it, very basic forms of life would not be possible. An important example of this is the personal relationship. For these to be built, maintained and enriched, privacy is required. We do not generate and sustain intimacy–emotional and sexual–under observation and analysis; we do so far away from the madding crowd. I am not doing anything illegal or secretive in the maintenance of my personal relationships but I would still like their details to be private. Hopefully, that’s clear. (Who am I kidding?)

Lastly, there is a dangerous conflation between paper records and electronic records. For instance, David Simon, the latest to join the ‘relax, its legal and being done to protect us’ brigade, runs an analogy with the Baltimore wiretaps carried out by the local police and concludes:

Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual.

Except that it doesn’t. Those ‘sheets and sheets’ do not correspond to the billions of digital records obtained from Verizon, which can be stored indefinitely and subjected to data analysis in a way that the hard-copy data cannot.

These arguments will be made again and again in this context; might as well get some brief refutations out there.

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.


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.

Glenn Greenwald is Not the Story; The Surveillance Is

The New York Times has an article on Glenn Greenwald, who has broken two stories on the NSA surveillance programs that now occupy most thinking people’s attention, which is titled thus: ‘Activist Blogger Is At The Center Of A Debate‘ on its front page. (The article’s title reads ‘ Blogger, With Focus on Surveillance, Is at Center of a Debate’). That headline, and the content of the story, tells us a great deal about what is wrong with modern journalism  and why civil liberties outrages aren’t so outrageous any more.

Greenwald is most emphatically not at the ‘center’ of any debate. He is not the story; the surveillance program is. But surely, some background on the reporter who broke the story would let readers evaluate his credibility? I’m afraid this claim does not withstand closer scrutiny even though it smacks of a pleasing epistemic rectitude: ‘all we are doing is investigating the source of this story’. To focus on him  is a a straightforward misdirection of journalistic effort. The New York Times should be concentrating on uncovering more details about the surveillance programs in the Greenwald articles, but not about Greenwald himself.

(Incidentally, just for good measure, the New York Times article includes a couple of ad-hominem slams against Greenwald:

Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”

Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.”

There is praise for Greenwald too, but all of this is really besides the point.)

The correct thing for New York Times journalists to do at this point is to get to work on verifying the authenticity of the documents that Greenwald’s source has made public and to explain to their readers:  what their legal and political implications are; how these programs fit into the context of the surveillance that the previous administration kicked off; what the relevant sections of the Patriot Act are; whether the defenses made by administration officials stand up to scrutiny or not; and so on. The New York Times has done some of these things, but my point is that at this moment, those  ought to be its exclusive focus. There is a chance here for a serious journalist to expose the workings of a provably out-of-control government; anything else is a distraction at this stage.

This kind of missing-the-point is not restricted to the focus on Greenwald. Consider for instance, the stories on the Bradley Manning trial. As Matt Taibbi points out, most media outlets are obsessed by his personal background and are rather spectacularly missing the forest for the trees:

The CNN headline read as follows: “Hero or Traitor? Bradley Manning’s Trial to Start Monday.” NBC went with “Contrasting Portraits of Bradley Manning as Court-Martial Opens.”

Unsurprisingly, the citizenry marches on, its attention diverted.

The Spying Will Continue Until Morale Improves

The New York Times, picking up on a Guardian story by Glenn Greenwald, reports that:

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs aVerizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

This policy is a straightforward continuance of the Bush administration’s massive surveillance effort, similarly directed by the NSA in co-operation with telecommunications companies. The scope of the order indicates the data collection is indiscriminate: it is not directed, targeted or narrowly focused. (The court order does limit the data collection by time.) Rather, it is a broad sweep, a trawl to net the NSA’s desired catch. This is not surveillance to confirm a hypothesis; this is surveillance to try to frame one. This is not surveillance as an aid to detective work; this is surveillance as an integral component of that work. As Greenwald notes:

FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

Especially interesting, I think, is the reaction to the story. By that I do not mean the reactions of politicians, journalists, and privacy advocates. Rather, if one is allowed to believe that comments on the New York Times story are at all reflective of the ‘word on the street’, then a couple of apologetic samples are depressingly interesting.

For instance, ‘pjd’ from Westford writes:

I’m surprised that no one has noted the dates in the order. The order was signed on 4/25/2013 which is ten days after the Boston Marathon bombing.

This response is emblematic of the ‘it’s justified because of the terrorists.’ Never mind that nothing about the Boston bombers seems to indicate any kind of widespread conspiracy that would justify such a massive surveillance effort.

And ‘Kurt’ from NY writes:

Ordinarily, this kind of data collection could be interpreted as overly broad and a threat to civil liberties….But, again, given just how disturbing it seems on its face, if a judge is willing to make such an order and Congress is aware of it, it would seem to suggest that there is legitimate need in response to specific threat. Which would also say that, given the security classification it has been given, for this matter to be public knowledge as it now is is possibly injurious to national security.

Here we have the standard ‘the government must have a reason even if they aren’t telling us, and that’s fine by me.’ The trust displayed here in a judicial and executive branch that have done nothing to justify it is touching.

And this statement by the Obama Administration is equally risible:

The information acquired does not include the content of any communications or the name of any subscriber.  It relates exclusively to metadata, such as a telephone number or the length of a call.

Why is this not even remotely comforting?