7 June, 2013

On Internet surveillance and the role of the state

I kicked up a non-trivial shitstorm on Twitter yesterday and early today by, essentially, defending the government's PRISM program. I originally had two main points to make:

  1. The existence of PRISM should be in no way a surprise; the US government has always been monitoring the Internet. This point seems uncontroversial. And if people forgot about the previous three or four times we caught the US government doing this, chances are the fuss over PRISM is going to die down in a week or two as well.
  2. I have no problem with the PRISM program as described. Namely: it intercepts and monitors a broad swathe of Internet traffic in an effort to locate "foreign" traffic; also per Director of National Intelligence James Clapper:
    The government is prohibited from “indiscriminately sifting” through the data acquired. It can only be reviewed “when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” He also said only counterterrorism personnel trained in the program may access the records.

That said, I rapidly got myself entangled via a series of tweets into a much broader position:

And finally and most controversially:

Rather than scattering my half-formed opinions across tweets, I've attempted to collect them here into a more coherent position.

Surveillance is not abuse

Surveillance may well be illegal, but illegality does not define immorality, and it certainly doesn't define abuse. For there to be abuse, there has to be harm, and I have -- as yet -- seen no evidence that the various Internet surveillance programs are being abused in the way that, say, COINTELPRO (which read physical mail) was abused in the 60s and 70s.

Certainly there is the potential for abuse, but the mere potential does not, to me, automatically mean a program should be shut down. The strongest argument in favour of the government's benign intentions and actions here are that they've been doing this for over a decade and no abuses of Internet surveillance powers have come to light. Maybe they're all being hushed up, but after more than a decade that seems highly unlikely. The strong balance of probability seems to me that nobody is abusing this program.

The Fourth Amendment still applies

I'm not going to pretend to be a constitutional scholar, but the spirit of the fourth is that the government should not be able to search and seize your property without probable cause. I don't agree with every part of the US constitution (I think the right to bear arms is a bad idea, for instance), but in general it's a good idea. It's been extended as a general right to privacy, and phone taps specifically have been declared a "search" under the fourth, so Internet monitoring seems obviously to fall into the same category.

But look at how PRISM works. It's not listening to your phone calls and reading your emails. It's looking for emails that match patterns -- a sort of very-low-barrier "probable cause", if you like -- and in the process vacuuming up all sorts of unrelated, innocent communication, a very mildly intrusive form of search. Is this a search under the fourth? Has your property been seized? The line isn't clear. I'm not a lawyer or a judge, but viscerally this just doesn't seem that bad. This is more like a police officer patrolling the streets listening out for trouble than one coming into your house and poking around. It might be unconstitutional or it might not, but it doesn't feel wrong to me. It doesn't bug me at all.

That doesn't mean I'm okay with every aspect of a surveillance state and it doesn't mean there's no right to privacy, but it does mean I'm okay with the government sometimes having access to communications we usually expect to be private.

The government's intentions are usually benign

Is having no evidence that it's being abused enough not to shut it down? Was there reason enough to have started it in the first place? Shouldn't the government have to prove that the program has some value before it acquires this additional authority? Isn't the secrecy with which this is done itself an abuse of government authority, and counter to democratic principles of transparency? Doesn't the government serve us, not the other way around?

These are all valid questions, but to me surveillance seems too innocuous a thing to raise such enormous principles and fuss about. I agree that secret surveillance is distasteful, but entirely open surveillance is obviously useless, as those under surveillance will know what to avoid. Expecting to know everything the government's up to while being able to keep everything you do private puts them at a disadvantage, and I think that, on the subject of surveillance, their case for wanting to be able to know what's going on is greater than your case for privacy, at a purely moral level, regardless of the questions of legality and constitutionality.

I am not for unlimited government power. If they abuse the power this surveillance gives them, then we should fight tooth and nail against those abuses. But again, they have been surveilling us in this way for more than a decade; the potential for harm has not been realized and seems unlikely to be.

There are bigger fish to fry

As I said, the case of Bradley Manning is a genuine abuse of government power which I am viscerally, passionately angry about. Again ignoring the letter of the law and looking at it from a moral perspective, he released a great deal of incredibly interesting information into the world, information that was supposed to be secret. I much prefer having that information than not having it, and I think he did the world a service, while clearly enormously inconveniencing and embarrassing his employer, the US government. So while he deserved to lose his job over releasing it, that was all he deserved. His detention and punishment has grossly, horrifically outweighed his offense.

If you want to use PRISM for anything, use it as leverage. The government wants to be able to see our private communications sometimes, and we want to see theirs. If they can read our emails on occasion, they should accept that sometimes we will read their cables, though both of us are entitled to try and keep these things "more private" if we so choose. That seems fair to me. That's what I mean by reciprocity. If we catch them at it, they have to find some other way to do it, and vice versa, but there should be no punishment of the government for trying, and reciprocally, no punishment of the people for trying either.

It's true that there is a great injustice being done, but it is being done to Bradley Manning, not to your inbox.