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Orwell’s Eyes

Transparency for the Masses

Thoughts on PRISM, surveillance culture, and democracy

Nick Harkaway
Jun 25, 2013 · 14 min read

Yes, you are under surveillance. Yes, it is odious. Yes, it should bother you. And yes, it’s hard to know how to avoid it. Most of the steps you might take with regard to your government are proscribed or made ineffective by law — in the UK, you must provide your encryption keys on demand. In other nations, encryption is flat-out illegal. In the commercial arena, most of the steps you might take with regard to corporate snooping carry a penalty of being unable to use many of the central services on the Internet.

If you weren’t being watched, at least in some contexts, taxpayers should demand their money back — and it’s a lot of money. If you weren’t being watched, everything on the Internet would cost money. It is the job, the reason for existence, of entities like the NSA and the Government Communications Headquarters to seek to obtain and analyze every bit of signals intelligence they can, and it is the business model of Google, of Amazon, of Facebook to try to understand who you are and why you buy so that that information can be used to sell you things. If it’s any consolation — and it should not be — you are interesting to the tech giants chiefly as an example of a type, as a part of a fuzzy taxonomy of overlapping tendencies which can be sold to, rather than as yourself.

It is in the nature of all these entities to run, not walk, over what Eric Schmidt once called “the creepy line”. That is the logic of their structure. It is the job of the legislature, the judiciary, and the electorate — or, if you prefer, the consumer — to set boundaries on those tendencies, to confine them to what is reasonable. Sadly, the science of influencing the voter-buyer and clouding the issue is now so advanced that the wisdom of our collective crowd is effectively nullified. Even if the structures in place to allow us to object were not so pathetically nineteenth century as to be unable to affect government policy, the mechanisms for defraying public outrage are smooth and effective. The upshot is that you are being watched, and the watchers and their paymasters are not.

Welcome to the new democratic age of transparency for the masses.

Lest it occur to you that I’m overstating:

According to a report compiled by Big Brother Watch using Freedom of Information requests, Stockton Borough Council used powers under the Regulation of Investigatory Powers Act — created to deal with terrorism and serious organised crime — to investigate the movement of pigs, and Suffolk County Council made test purchases of a puppy and of services from a dating agency.

Other local councils such as Derby City, Bolton, and Gateshead have invoked RIPA to deal with dog fouling. In Dorset, the act was used to permit snooping on children to check whether they were eligible for school places.

Local councils have conducted 9000 surveillance operations over a three-year period, including 550 into fly tipping. Slough Council has recently spent £24,000 on thermal imaging equipment to take aerial photographs of residents’ properties and make sure no one’s living in their garden sheds. Similar technology has been used elsewhere to identify which households waste the most energy.

In the commercial arena, Ars Technica revealed a month ago that Microsoft appears to have the ability and the will to read the plain text sent by users of Skype. Since Microsoft took over Skype, the telephony system has changed. What was once a decentralised service making use of available processing power now has dedicated Linux servers — all owned by Microsoft. If one wanted to control and scrutinize the flow of information through Skype, that would certainly simplify matters.

Similarly, in 2011 it emerged that both Apple and Google smartphones sent location and some other data, along with a personal identifier, back to their respective creators. When this was revealed, both companies were forced to apologise and change their data collection policies — but the underlying urge is clear, and Google, at least, has had other problems with overzealous harvesting of information.

More recently, the Facebook Home smartphone app’s terms and conditions were modified to include a broad permission to take audio and video recordings from the phone without the user’s confirmation.

On the governmental front, William Hague was kind enough to reassure us all that “if you have nothing to hide, you have nothing to fear” — a statement as impoverished in accuracy as it is in originality. Of course you do. Not only is it possible for a person to wish to do things which are legal — even admirable — and wish that they should not be widely known, it must also be acknowledged that ministers of state and high officials are sadly no less prone to corruption and the misuse of their opportunities than anyone else. The notion of our leaders as patrician ascetics of unassailable virtue is risible. We’ve just seen evidence of peers selling their power. We know MPs have padded their wallets from the public purse before now. And we have just heard claims — if we had somehow forgotten the revelations of other decades about the messy malignancy which can break out in a police service — that the family of a murdered teenager were placed under surveillance in a search for anything which could be used to smear them if they criticized the police. The law must safeguard us from the abuse of power as well as from honest but obnoxious overreaching.

Meanwhile, despite Parliament and Congress enacting freedom of information laws, in Britain and the US the trend is for greater institutional secrecy. Because whistleblowers get legal protections, the first step in dealing with one is usually to deny that they meet the criteria. The US “Insider Threat” program says that leaking information to the press is all but the same as giving it to enemy states and sets harsh penalties for failing to report suspicions regarding a co-worker’s possibly leaky mood. Similarly, though UK law also protects whisteblowers, former health minister Andrew Lansley stands accused by the Sunday Times of threatening to sack Key Sheldon of the Care Quality Commission precisely for voicing concerns. Lansley, naturally, denies the charge.

The UK has also just legislated — to the enduring shame of the Liberal Democrats in parliament, whose inability to stand by their stated principles on matters of civil liberties should be engraved on iron plates and hung around their necks — to create a system of secret courts for civil claims against the government involving anything touching national security, meaning that victims of torture and serving soldiers airing grievances alike can now be forced to bring their cases in a sort of Star Chamber. This measure is effectively to prevent a repeat of the Binyam Mohamed case, in which the UK’s shabby complicity in torture was made distressingly plain in front of senior judges and the press. The governing class was spanked and didn’t like it, so it won’t be allowed to happen again.

On a more trivial note, the Daily Mail’s recently promised story about a sex scandal in Downing Street evaporated over night — though the in-the-know crowd is abuzz with details. How many of those hounded by investigators working for the tabloids would have wished such discretion? And how many got it? But nothing, it seems, is too good for Number 10. And while we’re on the topic of private detectives, the Independent newspaper has published a report which alleges that the Serious Organised Crime Agency has known for years that “blue chip” British companies and wealthy individuals routinely use private investigators “to break the law and further their commercial interests”. Once again, it seems that the intrusions of the very powerful upon the rest are privileged.

We swim in a sea of surveillance. What’s amazing is that all those long lenses don’t smash into one another in the street. And it will grow more absolute. Google’s next generation product is Glass, a wearable mobile device like a pair of glasses which can make audio and video recordings. Combined with geolocation and face recognition — which Google has banned from the Glass app store until privacy concerns can be resolved, but that won’t be an insuperable issue for agencies of the US government or for the search giant itself — a city of Glass users is a perfect panopticon. Anyone with access to that data can track you across the map. How reassuring, then, that the company is telling a Spanish court that free speech trumps privacy on each and every occasion (though incidentally banning Glass from its own internal conferences). If the reverse were true, Glass would be an expensive boondoggle, but if Google can sell that North American perception of the primacy of free speech to the EU, where privacy is enshrined in the Convention on Human Rights before free speech, then Germany and France — who have been far more robust with Google in drawing a line on privacy than the UK — might be open to conquest. The Germans have been particularly impressive, asserting the Verpixelungsrecht, the right to be forgotten and blurred, the right to be anonymous. Good for them, and the worse for us that we have no such right to claim for ourselves. David Cameron is a big fan of Google.

The facts around PRISM itself are cloudy. Glenn Greenwald’s article provoked an instant, aggressive response. Edward Snowden has been examined under the microscope, smeared as a lunatic and aggressively defined as a traitor — though if PRISM is as mundane, well known and as legal as many would have us believe, then he’s a very small fish. The facts are disputed, discussed, redefined. Careful statements have been made by many of the parties which appear to make the whole thing seem trivial but which on closer examination leave loopholes through which a determined spy might drive constant ubiquitous observation. Dealing with the NSA, we’re simply not going to get a reliable accounting of the truth, and nor should we expect to. But in the barrage of claim and counterclaim, several things stand out to me:

PRISM is one quarter of a Bush era project called STELLAR WIND, which put Americans within the NSA’s mandate for the first time in years, and which brought the upper ranks of the Justice Department at the time to the edge of resignation over orders they deemed illegal. The law has subsequently been recast.

The Foreign Intelligence Service Court, which has oversight of surveillance issues of this sort, has denied eleven requests since 1978. The total number of requests is in the tens of thousands.

Elliot Spitzer’s use of prostitutes was exposed, despite the fact that he was not a target of any surveillance operations, because of a Suspicious Activity Report — US banks are mandated by the Patriot Act to look for certain types of activity — which flagged his withdrawals. In other words, Spitzer was caught in a trawl. The number of SARs had increased from just over 200,000 in 2001 to just under 1,250,000 in 2007.

It appears that GCHQ and the NSA have a cosy relationship which allows each to do things on behalf of the other whose legality might be questionable at home. As with our willingness to use information and evidence obtained by torture so long as the actual cutting is done by someone with a foreign passport — even if we are supplying questions and information to the interrogator — so too here our services outsource what they are not supposed to do in order to get information they may not obtain themselves. A neat circumvention of legislative protections and very clever, no doubt — but if the letter of the law remains unscathed, the intent is broken, and that is nothing to be proud of. When governments conspire to obviate their own laws, it is the basest and most basic of betrayals, the willed inversion of their reason for being.

In other words, whether or not the specifics of Greenwald’s article hold up over time, the gist of it is that, yes, you are being watched, and your ISP and other core Internet services are probably — willingly and knowingly or not - involved.

The problem on the commercial side is not (or not only) that Internet corporations are compliant with requests for surveillance data — they may even fight such requests — but that they are part of a culture which embraces and validates the idea of data as something which is by nature there for the harvesting by group entities, rather than something which belongs to the small people who comprise it. A recent proposed solution to the problem of unauthorised filesharing of ebooks was the watermarking of each copy with a specific pattern of variation in the text so that a given version of the text could be traced to a specific buyer. In other words, a form of passive surveillance would be embedded in the book itself. Intellectual property businesses — somehow missing the likely reciprocal consequences of intruding on someone else’s data — are keen to have more and more surveillance of the contents of users’ computers. The overwhelming tone of the discussion is the application of Hague’s dictum — or an inversion of the presumption of innocence: “prove you have nothing to hide”.

We tend to assume that data is either private or public, either owned by one person or shared by many. In fact there’s more to it than that, above and beyond the upsetting reality that private data is now anything but. Some information should exist in a no-man’s-land, an assumption that it cannot be appropriated — it seems to me that a group of children playing in a public space, for example, should be considered no one’s business to record save for someone within the compass of that private moment, for all that it’s occurring in a shared space. “Shared” need not mean “communally owned”. It could also mean “jointly ceded”. The recent ruling that naturally occurring human genes cannot be patented was somewhat reassuring in this regard, but the trend runs against the notion. We have lost the concept of common property as being something which must be respected and left in place, and instead we have the idea of the commons as something to be mined by anyone with the right equipment. In Britain, the notion of “mind your own business” used to be a religion. It seems to have gone now, leaving us unprotected.

Beyond the prurience and the trawling for criminal acts and the creepy sense of someone watching over your shoulder, all this is important because data of this kind can be used to create influence. Knowledge is not just power, it is control. The Nudge is big business and big government. Choice architecture — the application of big data and behavioural economics to the design of questions and dilemmas to produce a given desired answer — is a new love among the governing elite. Of course it is. How convenient not to have to make a complex argument to the electorate — or, in the commercial context, sell a good product to the consumer — when you can simply rephrase the question in such a way that the thing seems like a done deal before it begins. It can be as simple as etching a fly on the urinals — resulting in cleaner toilet floors and an 80 percent reduction in the cleaning bill — or as involved as making organ donorship opt-out rather than opt-in. It can be how you price a magazine subscription, a mobile phone, or a steak dinner, or it can be a new series of road signs, or the phrasing of a survey or even a referendum question. The key point is that it is at root a manipulation of the mind to achieve a goal, and it works better and better the more is known about the target and people like the target.

Which is a problem, however noble the goals, because this application of big data affects our ability to make choices. Instead of explaining the issue and fitting the policy to the considered will of the people, it fits the will of the people to the desired policy. Choice is a skill, a habit, even a minor reworking of the architecture of the brain, and it must be practiced to be honed. It is also the heart of our society’s assumptions about legitimacy and governance. Democracy, capitalism, and our system of justice all turn absolutely on the ability of individuals and groups to make rational choices in their own best interest, in accordance with their understanding of rules and consequences. Anything which sabotages that damages the basis of how we live, subtly transforms our democracy into rule by fiat, our markets into a pocket economy, and our justice system into a fraud. There is literally nothing more vital to the three aspects of our society than choice, and the Nudge undermines choice.

The reality of the post-Snowden world is pretty stark — not because of his leaks or what they contain, but because of what they make us face up to. The supine nature of entities like the US Foreign Intelligence Service Court; the ugly spectacle of the British government creating a Star Chamber where the claimant may not hear and therefore may not seek to rebut the arguments made by the government about its own culpability; the endless micromanaging interference of local councils who apparently believe that controlling dog fouling is more important than preserving personal dignity and the simple human right to privacy; the unpleasantly itchy notion of the NSA or GCHQ seeing your email and taking note of your reading matter, your friends, your politics; these are the predictable consequences of an era where executive power is sadly unrestrained because the legislature lacks backbone and the electorate is being sold fear instead of courage by those who should lead rather than pander. The Nudge is equally dangerous in a different way, justifying bad decisions and forcing consent.

But it is the concept which runs alongside the constant and essentially unconsented gathering of data which is most mendacious: the contention that privacy is a luxury, a bygone; an unnecessary and even regressive notion in a technological age of openness and a hinderance to the safeguarding of a just society. It is precisely in a technological society that privacy emerges as a central, vital plank of legitimate democratic function. It might be different if openness were universal, if we could scrutinize the choices of our leaders and hold them to account; if we could get unvarnished access to information about the things we buy and the services to which we subscribe, and know the probable consequences of our decision rather than be soothed with pablums and misdirections; if we were encouraged and enabled to participate in the creation of the world, rather than sidelined as the governed, the consumers. But this is not an era of radical transparency across the board. It is not an era of growing direct democracy. It is the era of transparency for the masses, of autocracy dressed as liberty. The powerful are concealed by law and contract, and by power. The rest of us are exposed and encouraged to think of this exposure as freedom.

We can’t go back to a time before distributed communications technology, and nor should we wish to, so we must have at least a limited Verpixelungsrecht — perhaps a right to secure, edit, and delete information held by any given service after a period of time — and a comparable right to see clearly the actions of elected officials, administrators, and corporations. The alternative is the slow or rapid fusion of the different aspects of influence, the different lists held by government and private industry, and the melding of the power of state and corporations into a whole. That melding, so obviously undemocratic and unaccountable in those areas where it is already in place, was once described by no less an expert on totalitarianism than Benito Mussolini as the ultimate goal of the Fascist project. We are not drifting into Fascism, but we do run the risk of a grim marionette form of government where each step we take is chosen for us by those above. The only antidote is to be found in demanding that it should be otherwise, and knowing what that choice means.

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