May 10 2015
It’s been an interesting ride ever since Edward Snowden came out with the revelations about NSA spying efforts two years ago. There was a huge public outcry at first, both from the side who believes spying on your own citizens is necessary and from the side who believes spying on your own citizens is a vital tool in protecting them. Both sides of the argument have been trying to sway public opinion, with varying degrees of success, but it’s been the spy organizations that have been getting their way as judges and lawmakers side with them for the most part. But that’s slowly changing and there’s additional pressure mounting on both sides of the argument. It’s only a matter of time before the pressure seeks an outlet and it may be explosive when it does.
The first problem with spying by intelligence agencies in the US was that it was so secret that most courts couldn’t even get enough information about the practices to determine who had a right to sue for relief from the situation. You can’t sue the US government unless you can prove you have standing in a case, that you are affected by the action, but you couldn’t prove you were one of the people who were spied upon if the information is too secret to be released even to the court. So for nearly two years, that venue of combating governmental spying has been stymied. As of last week though, that’s started to change as the US 2nd Court of Appeals in Manhattan declared that Clause 215 of the Patriot Act did not give authorization for massive collection of phone data. The ruling also gave the ACLU standing in the case, enabling further legal action, but stopped short of declaring the spying efforts unconstitutional. In a move that probably didn’t surprise anyone, multiple Senators and Presidential wannabe’s called for new laws to give the NSA and other agencies the power the court just denied them.
Abroad, there’s also a lot of push back against not only American spying, but against the national organizations who are cooperating with American organizations. Germany’s Federal Intelligence Service (BND) had been cooperating with the NSA for years, feeding the American organization information directly from their telecoms and ISP’s, enabling the NSA to track German citizens in ways the BND might not be able to. This got mostly overlooked when it was revealed that the US was listening in on Angela Merkel’s phone calls, but recent activity and the NSA’s refusal to give justification for the information they’re asking for has caused the BND to stop cooperating with the NSA and is creating quite an uproar in Germany. Merkel’s political party has been under a lot of pressure because of the information the BND has been providing and there have even been calls for the resignation of the German Interior Minister.
That’s the recent wins on the anti-spying front. On the other side, advocates of spying continue to push in all sorts of ways, from asking for golden keys in encryption technologies to calls for more power from legislators and less oversight by the judiciary. Last week’s elections in the UK have emboldened Home Secretary Theresa May to call for the re-introduction of the so-called “Snooper’s Charter” in the country. GCHQ already has significant powers within the UK and abroad, but the Draft Communications Charter Bill would extend these powers considerably and lessen any oversight on law enforcement agencies. The good news is that even members of her own party are critical of the bill and might not be willing to back her call for further power.
Proponents of spying powers have nearly religious respect for the governments need for these powers and the government’s restraint of their use. Theresa May seems to believe that any judicial oversight is too much and that the government can’t be restrained or the terrorists will win. In the US, Supreme Court Justice Antonin Scalia has long held similar beliefs and has been very vocal about it. Last year he presented to a Fordham University class on law, strongly stating that such powers are needed and cannot be limited. This year when he went to present, the professor had given his class a new assignment: using only publicly available information, create a dossier on Justice Scalia. The 15 page document was presented to the Supreme Court Justice and included extensive information about his financial information and family. Rather than take this as an example of what the NSA or any other organization has at their fingertips and a warning as to why this might be dangerous, Justice Scalia blasted the teacher and his students, questioning their ethics and judgment. It seems that it’s okay when an impersonal national agency does it, but not when a small group of students research the Justice.
And adding to the pressure cooker of the spying argument, China and Russia have signed an agreement not to hack each other. It’s probably more accurate to say they’ve agreed not to get caught at it, but this means that their considerable resources will be at least partially turned away from each other and to different projects. There’s probably not many people who won’t identify the US as the primary target of the freed up hackers, but there are plenty of other places they can put their efforts. In a lot of ways, it’s like to gangs agreeing not to horn in on each other’s territory while they deal with a third gang. Add in Russia’s upcoming data localization laws and things get very interesting, very quickly.
“May you live in interesting times.” certainly applies. There’s pressure from all sides, some wanting to increase spying, some wanting to curb the capability of Western law enforcement agencies. Both sides have valid points, but it’s a trade-off between the security that such spying might provide versus the damages to civil liberties and personal freedom that it causes. There’s been almost no proof that spying by international agencies makes us safer, but by the same token it’s hard to express clearly how spying damages the lives of average citizens. In many ways this is going to be one of the defining issues of the early 21st century and will determine the future of our civilization. Do we defend our liberties or do we give governments the power to protect us from ourselves? Only time will tell.