The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.
Samuel Warren and Louis D. Brandeis,
The Right to Privacy, 4 Harvard Law Review 193 (1890).
On the 8th of June I darkened all my accounts with the major internet players I used to do business with — Facebook, Google, MSN, RealNetworks and (even) Twitter. This was my natural response to the revelation of the notorious global sweep of the metadata of hundreds of millions users with profiles on these internet services by the US National Security Administration (NSA) through its PRISM program. Bearing in mind the subsequent justifications and defence of this activity, I still think mine is the right response and it is important to say why.
At the outset, we should draw a distinction between the substance of our online life and the “metadata” that attaches to it. The substance can be thought of as the content of what we say online and the metadata are the identifiers of that content (i.e. the creator, recipient, location, time, date, subject). As I discuss, it is the metadata that is of greatest concern.
As far as the substance of what I have done online goes — email, Twitter messaging, FB messaging, etc — I am not one who has ever had an expectation of privacy. The same would be true of texting if I had ever owned a mobile phone. Everything I say in the online world is based on the assumption that it is done in public. My assumption has been based on the early and repeated warnings that data mining by the NSA was taking place and the regular embarrassment of public figures who seem to think that what they do online is private. If I do have a privacy concern I try to take care of it offline and if I do need to be online, I try to encrypt. Accordingly, it does not greatly concern me that that the police or government spies might be part of an online public audience. Others, with more robust expectations of online privacy, especially where sites are password protected, will reasonably take a different view.
As I say, it is metadata that is my concern. We are told the secret daily massive sweeps of the entire world’s metadata by the NSA are necessary to guard against terrorist attacks — clearly an important goal. Terrorists that seek to intentionally murder and injure innocent people indiscriminately are the worst kind of criminals. However, they do not call for a perpetual “war on terror” to protect our security, with that end used to justify means that are filled with the dangerous potential to corrode our freedom. Instead, these terrorists should be stopped like other criminals, if at all possible, before they perpetrate their crimes. In this context, I have no doubt that the ultimate goal of the sort of terrorist I am talking about is to acquire the ultimate bomb — a nuclear device — and detonate it to cause maximum social destruction. We need to make every effort to ensure this never happens.
Why then would I object to this hitherto secret six-year blanket surveillance of hundreds of millions of people — almost all of who, like you and me, are not suspected criminal terrorists — and take the action I have? The simple answer is that our efforts to combat terrorism must be consistent with the fundamental values of freedom, transparency, privacy, and due process, all of which were won with long and hard effort over centuries and underpin the very nature of liberal democracy. I believe these values are worth fighting and dying for to preserve like generations of Americans. What we know of the NSA programs so far demonstrates that they are a significant threat to these fundamental values and it is more than disappointing that they are defended by both sides of politics and seem unlikely to disappear anytime soon.
A more detailed answer to my question includes three additional aspects.
First of all, there is the collection and use of metadata. It is clear that NSA is much more interested in our metadata than the substance of what we have to say. What we know about NSA’s “Boundless Informant” tool, makes clear metadata exceptionally useful for law enforcement because it provides an essential discovery and tracking tool. However, as authoritarian regimes know too well, the access to the identity of individuals, their networks, and their behaviour which metadata provides, also makes it an essential tool of oppression. While we may have confidence in our spy institutions now, it is the potential use of metadata to intimidate (or worse) that makes indiscriminate en mass NSA surveillance, without probable cause to believe a crime has been or is about to be committed, entirely unacceptable. The fact that the information gathered is stored in perpetuity makes it potentially even more sinister.
Jay Stanley and Ben Wizner of the American Civil Liberties Union (ACLU) illustrate the point with existing examples. They report that a 2009 MIT study found information gleaned from social networking contacts alone was sufficient to determine sexual orientation. And, email metadata was all that was necessary to identify the mistress of the former Director of the CIA, David Petraeus, and drive him out of office. More recently, Duke University sociology professor Kieran Healy has demonstrated an elementary dataset could have been used by the British to find key persons involved in “terrorist groups” operating in the American colonies at the time of the revolution.
Thus, tracking metadata is far more significant than the content of telephone or online communication because of the ease it provides in the identification of individuals, patterns of behaviour, and networks. Think of it as Stanley and Wizner suggest: “[r]epeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics, or a gambling bookie may tell you all you need to know about a person’s problems”. The threat to anonymous journalistic sources and a free press is readily apparent, as is the potential for blackmail or worse — something another metadata user, J. Edgar Hoover, had no scruples about.
A second major troubling aspect of the NSA surveillance programs is their secrecy, which leave us in ignorance about how our privacy may be violated. At the most basic level, it is uncertain how much information, and from whom (both within the US and globally) is being “Hoovered” up by the PRISM program or how exactly PRISM works. We do not really know how long it has been going and we still do not know what the extent of powers the US government believes it has under the so-called “Patriot Act” (or other authority) and precisely what it has been collecting because its classified information.
We are now told by NSA that it possesses the know how to ensure that all monitoring is carried out according to law. However, we only have NSA’s word for it and that inspires little confidence at present. Claims by the NSA about the program have been seriously undermined by the current defence of the program by the Director of National Intelligence, James Clapper. In March 2013 he gave testimony before a Senate Intelligence Committee, which if sworn, would appear to be a clear case of perjury. Senator Ron Wyden asked “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” and Clapper answered, “No, sir.”
Finally, the NSA surveillance programs are unacceptable because of their apparent limitless and indiscriminate nature. Based on what we know so far, the NSA is pulling in metadata for phone records, emails, web searches, credit card transactions, documents in the air, private messaging, and chats from all over the world. One must assume this includes our electronic lives here in Australia. The tech firms now want to provide transparency so that we can all rest assured that the monitoring of their users is not omniscient, but more limited. Assuming the US government allows this and it demonstrates that serious limits and oversight is involved, we should not be lulled into a false sense of security.
This is because the most troubling aspect of the NSA programs is the assertion by the US government that they operate under the law and no amount of transparency, if these laws are constitutional, will stop them. One is left to hope the actions commenced by the American Civil Liberties Union challenging the constitutionality of NSA programs will be successful. One also hopes that other governments around the world will challenge the practice on international human rights grounds. Such a challenge is supported by the recent report issued by UN Special Rapporteur Frank La Rue before this story broke, which highlights that the widespread use of surveillance technologies by governments all over the world is in violation of the human rights to privacy and freedom of expression.
The indiscriminate global surveillance of most if not all online users of major internet services (and perhaps even smaller players) is a crisis for both freedom and privacy. It calls for action in resistance. In the words of George Washington, it requires us resist “or submit to every imposition, that can be heaped upon us, til custom and use shall make us … tame and abject slaves”. If we do not resist; if we are like sheep and easily scared into relinquishing our privacy and private liberties in exchange for the false promise of certain security, then liberty has started to die in our hearts and when that happens, as Learned Hand, the great American jurist, once remarked, no law can save it or us. We will be cowed. It is small resistance, but this is why I no longer will participate in social media.