James Clapper, the US Director of National Intelligence, told reporters in Washington, D.C. last week that the rapid growth of encryption on consumer devices is “not a good thing.” Clapper admitted that Snowden’s revelations in 2013 had sped up the widening use of encryption, and that in the intelligence community’s opinion this is a problem. He then trotted out the well-worn argument that those leaks have helped terrorists by making them more savvy about communications privacy.
But at the darker fringe of Clapper’s views on international security was his suggestion that certain rights upheld by the European Union, namely privacy and the free movement of people, were in conflict with intelligence-gathering and fighting terror. Solving this “fundamental conflict” would, he hinted, require increased surveillance powers, undermining civil liberties and strengthening borders to the victims of terror.
Clapper seems to be saying ‘we were hoping people would remain unaware we were violating their privacy for a little while longer’
Let’s explore how these arguments hold up.
The widening use of encryption: a problem, depending on which side you’re on.
While an intelligence community figure’s opinion on the widening use of encryption is pretty predictable, Clapper said that the growth and use of commercially available encryption had been more rapid than the National Security Agency (the NSA) had predicted: “as a result of the Snowden revelations, the onset of commercial encryption was accelerated by about seven years. And it has had and is having a profound effect on our ability to collect, particularly against terrorists.” Between the lines – we were hoping people would remain unaware we were violating their privacy for a little while longer.
Glenn Greenwald was scathing about these arguments and the regime they serve:
“Is there any mystery why ‘U.S. officials’ and the military-intelligence regime are desperate to shift blame away from themselves for ISIS and terror attacks and onto Edward Snowden, journalism about surveillance, or encryption-providing tech companies? Wouldn’t you if you were them? Imagine simultaneously devoting all your efforts to depicting ISIS as the Greatest and Most Evil Threat Ever, while knowing the vital role you played in its genesis and growth.”
The repeated innuendo (and often outright suggestion) that transparency ‘helps the terrorists’ is part of a concerted effort to shape public opinion and build support for the ‘necessary evil‘ of undermining privacy and civil liberties in the fight against terror.
Surveillance systems have been constructed and are used to capture as much data as possible, regardless of criminality
Jenna McLaughlin of the Intercept last month questioned Obama’s search for a “non-existent middle ground on encryption.” The current bizarre position of the US government is that consumers should have robust security that can also be breached just in case you might be a bad person, something encryption experts repeatedly point out is technologically impossible.
Clapper told reporters that thanks to the Internet it’s much tougher these days to distinguish between the guilty and the innocent, saying that “those billions of innocent transactions by millions and millions of innocent people are all mixed up with nefarious activities by nefarious people.” Human rights organizations and privacy advocates have worked hard in the past three years to refute this, pointing out that the NSA’s own leaked files demonstrate how surveillance systems have been constructed precisely and purposefully to capture as much data as possible, regardless of criminality. Remember that once secret but now infamous slogan that Snowden leaked from the NSA: “sniff it all, collect it all, know it all, process it all, exploit it all.”
One example is the Oregon Department of Justice internal investigation, as reported on by the ACLU in Oregon, into the surveillance of people on twitter using #BlackLivesMatter. The ACLU stated:
“Oregon law prohibits the collection of information based on a person’s religious, political, or social views unless there is also a clear indication of criminal activity. The DOJ’s training teaches agents to evade this law… [A training presentation slide] calls on agents to ‘use creativity’ and ‘articulate reasonable suspicion in some way’. It goes even further to urge agents to ‘think of a wide variety of crimes to form the basis of collecting information’.”
The tactic is backwards: figure out a justification for mass surveillance and then argue in public that any data captured is accidental.
European rights and freedoms in the way of surveillance?
When Clapper was asked what the intelligence community had learned after the attacks in Brussels and whether he felt the group had clandestine cells in countries like Germany and the UK he said “yes. They do. That is a concern of obviously ours and our European allies and I assure you we are doing everything we can to share with them.” In his mind this is the result of the refugee crisis
“The obstacles in Europe have I think somewhat to do with the fundamental conflict between on the one hand the European Union incentives and drives to promote openness and free movement of people and goods, privacy, which is in some ways in conflict with the responsibilities that each country has as a nation state to protect the security of its borders and its people.”
This is, interestingly, a position he shares with extreme right nationalists and the leadership of ISIS, who have their own reasons for wanting Europeans to fear refugees from Islamic nations. But many experts dispute this claim as unnecessary fearmongering that serves the interests of both Islamists and US war hawks. Matt Perriss, a former British military intelligence officer, wrote in the Leveller last October:
“If Jihadists are coming, and they are, then that’s where they would come…complete with plastic surgery, ceramic Glocks and state of the art forged passports. First Class tickets. Trained professionals. Not up to their knees in cow shit begging for water off a Serbian peasant farmer.”
Once again, Clapper’s position is tied to the deliberately vague intention of finding a balance between privacy and security that doesn’t exist. To resolve this so-called fundamental conflict would necessarily mean undermining more of the openness and privacy he frets over, and the softening up the security of ordinary citizens’ personal communications while hardening the security of borders. It would necessarily mean the erosion of liberty for citizens of developed democracies while black and brown bodies are met with barbed fences, tear gas, rubber bullets and violence at the borders, precisely for wanting to escape danger in the first place.
Serious questions remain about how much safer citizens are actually made by new surveillance powers
A top security official playing so casually with these fundamental ideas should be a wake-up call. Attacks on Western nations have been painful and shocking precisely because they’ve undermined the feeling of distance and safety that their citizens previously had separating them from violence and warfare abroad, and we should be wary of moves that take advantage of fear. Serious questions remain about how much safer citizens are actually made by new surveillance powers.
The question thus becomes one of how far it goes until these powers are robust enough in the opinion of the intelligence community? At what point will Clapper be satisfied that enough of the ‘obstacles’ of the European Union have been removed so that we can get the bad guys?
Beyond that, there is the question of when in the future these lost rights and freedoms will be returned. The likelihood is that further changes will be just as hard to reverse as current powers. Once a government is comfortable with its new tools and systems to spy on its citizens, campaigners, journalists, diplomats and dissenters, how easily will they be convinced to give them up?
You don’t need to imagine a future fascist demagogue getting hold of these powers to be fearful. You just have to look at the contours of the present, of the impact these systems already have on peaceful citizens and campaigners for justice, and the chilling effect on journalists and whistleblowers.
Image: Christiaan Colen
