In a report written during the Vietnam War by the New Zealand journalist Peter Arnett, then correspondent for The Associated Press, with regard to the bombing of the village of Ben Tre in February 1968, a citation from an unidentified American major is made that would enter the annals of journalism and politics. As justification for the elevated number of civilian casualties caused by the bombing, the military explained that it had been “necessary to destroy the village in order to save it” — “save” meant, in this context, eliminate the Viet Cong elements that were hiding themselves among the population.
The citation became famous and was remembered in recent days due to the revelation of the extensive programs of espionage against American citizens — and not only [Americans] — carried out by the U.S. National Security Agency (NSA) and revealed by information technologist Edward Snowden, an ex-analyst from that agency transformed into a whistle-blower, hidden in some undisclosed location today.
In fact, what the NSA, CIA, FBI and the American administration in general seem poised to do, according to their own declarations, is trample all civil liberties defended by the law, by the Constitution and by moral code … to defend American democracy from attacks from its enemies, with foreign terrorists in mind.
The citation transcribed by Peter Arnett seems so ridiculous that its veracity came to be called into question a few times, but lately the pages of American journalists have been filling with analyses and commentaries that answer Snowden’s action and that say precisely this: In order to defend the liberty in which American society prides itself and that its enemies want to destroy, it’s admissible to ignore the rights the citizens enjoy, circumvent the laws that defend them, give complete power to trespass citizens’ private lives — whether suspects or not — to secret organizations that are not subject to any sort of democratic scrutiny, accept secret laws that no one can contest or so much as discuss, intimidate and accuse of treason those who dare to mention these practices, force businesses to contradict their codes of conduct and betray the relationship of confidence they maintain with their clients. In order to defend liberties from terrorist attacks, the American authorities have not spared the cost or the sacrifice and, if necessary, are poised to install a totalitarian regime today in order to impede [a totalitarian regime] from happening one day. Make sense?
After All, What Did the Businesses Do?
There are many things that still haven’t been realized for sure about the NSA’s program PRISM, whose existence and objectives Edward Snowden revealed to the British newspaper The Guardian and The Washington Post. The program, according to its documents presented by Snowden, grants the NSA access to, among other data, navigational history, searches, mail and chat content of any user of the businesses involved. But PRISM is just one of the programs presented by Snowden, another example, called Upstream, collects data directly from the cables where they circulate.
In particular, the type of access to their servers the businesses Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple have granted the NSA has not been determined in fact — if it is that they conceded anything. What is known is that this “direct access” is expressly mentioned in one of the NSA’s documents divulged by Snowden that refers to the collection of data as being “directly from the servers of these U.S. service providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”
These businesses vehemently deny having given the NSA “direct access” to their servers and both The Post and The Guardian would come to rephrase their accusations in a more prudent manner, admitting that information collection did not take place across a direct connection between the NSA and the servers of those companies, but, despite this and the contradictions of the companies, there are still many reasons to be concerned.
One of the reasons, only apparently innocuous, is the great similarity in content of the contradictions and declarations of many of these companies. It’s improbable that large businesses with different legal offices have all arrived at formulations so similar in their contradictions. The suspicion that remains is that all have utilized a proposed (or imposed) formulation by an official entity, suggested in a worrisome way to be an ancestor of the NSA, over these companies and [it] causes fear that their declarations may be less candid than we would have liked.
Both Facebook (through Mark Zuckerberg) and Google (through Larry Page) have said that only “yesterday” had they ever heard talk of “a program called PRISM,” which makes one wonder if perhaps they know it by another name. And both empires say that their companies do not participate “in any program that aim to give the American government — or any government — direct access to their servers.” What else could we think, that these companies may allow the NSA “indirect access” to their servers?
Google also guaranteed that it did not provide the government “a back door to gain access to private user data.” But maybe they opened the front door for them?
Microsoft guaranteed it did not participate in any “voluntary program of national security” for mass information collection. But perhaps it was forced to participate involuntarily?
In all declarations there are careful formulations of this type, which arouse more suspicion than they remove. The known specialist of information security and privacy, Bruce Schneier, was clear when asked for his opinion on the case: “I was assuming that these tech companies were just lying. That’s the most obvious explanation.”
The Dubious Legality of the NSA’s Programs
Despite the companies’ contradictions relative to PRISM, all of them admit that they “constantly” receive legal orders, enforced by courts of law and because of that perfectly legal, to provide certain data that are considered relevant in police investigations or services of information. In the same fashion, various sources linked to the American administration — and its own President Barack Obama — have been trying to minimize Snowden’s revelations, underlining that they refer to programs that are “legal, sponsored by a court of law and authorized by Congress.”
Does this make PRISM legal? In fact, even though PRISM does all that Snowden affirms and all that we fear, it is possible to argue that it is formally legal, since it finds itself covered by the Foreign Intelligence Surveillance Act (FISA), a law that was enacted by the famous Patriot Act that George W. Bush approved after Sept. 11, 2001, which allowed all types of abuse and has been subject to accusations of unconstitutionality.
It’s also true that PRISM is sponsored by a court of law, but it probably deals with the Foreign Intelligence Surveillance Court (FISC), a court of law sui generis, created exclusively to deal with cases covered by FISA, whose hearings and deliberations are secret and in fact cannot be appealed. The alleged scrutiny and oversight of the U.S. Congress simply do not exist, as the various congressmen and women that make up the committees responsible for information have repeatedly denounced [them]. In fact, owing to its secret nature, the NSA’s activities are the subject of congressional briefings, but the participants may not divulge this information, much less debate it on the congressional floor. One of the many questions elucidated by the Snowden case is what the members of Congress knew but silenced themselves (through legislation) about PRISM.
Data Provided “Daily and Continuously”
If you don’t already know for certain that, using PRISM, the NSA made requests of Internet companies, we do know the details — still thanks to Snowden’s leaks — of a request made to the telecommunications empire Verizon by the FISC, in which this court of law ordered the company to gather data about all telephone calls made by its millions of clients and provide it to the NSA and FBI “daily and continuously”
The most curious part of this document is the section where it’s determined that it’s prohibited to acknowledge the existence of this order and what could be obtained thanks to it to third parties. It’s evident that it deals with a clear abuse of authority for whoever reads this judicial order, since the data collected talks about the millions of individuals that are not suspects of having committed any crime and are not subject to any investigation. It’s true that these data are not identified nominally (it deals with the numbers to which each user is linked, the location of the interlocutors, and the time and duration of the call and other elements of the same genre), but it’s evident that at any moment, once in possession of these data, the NSA can retrospectively rewrite the telephonic history of any suspect or of a most uncomfortable citizen.
And nothing impedes us from conjecturing that, besides Verizon and the Internet companies, there aren’t similar orders directed at chiliads of other entities in the dominion of telecommunications or in others.
In relation to the guarantee that the data thus collected will only be matched with the real identities when someone is suspected, Republican Senator Lindsey Graham, having been defending this position, says that “If you’re not getting a call from a terrorist organization, you got nothing to worry about.” But this isn’t the only thing it deals with.
All Citizens Are Suspects
The question is that all citizens have the right to not be investigated unless there are reasonable grounds — not just vague suspicions — to believe that he or she has committed a crime. The strategy the NSA is following — and what the Obama administration vouches for, after what was done by George W. Bush — considers that all citizens should be treated as suspects and that all personal information that concerns them should be archived to be dug up when deemed necessary. The potential for abuse of this attitude is immense; it’s easy to think what a government that’s not very scrupulous can do with this information. But even in the most scrupulous of governments exists a great risk of abuse. And it doesn’t just deal with the risk of abuse. The question is that anonymity, the existence of a private sphere — made up by our telephone calls, what we search for on the Internet or what we write in our mail — is an essential condition of individual and collective freedom and of our own identity. We can only be who we are if we know that we can truly be who we are without it posing risk for us. Spiritual peace, boldness, creativity or even spontaneity is not possible in a spied [upon] society.
When we fear being spied upon — or when we know that it is happening — this places us in a place of inferiority, of subjects before an oppressive power. There is no possibility for equality in a spied [upon] society.
A country whose citizens are spied upon — even if this information is only used in case of necessity — is not a free country, and its citizens are not a free people. It is a country with fear, where the citizens will fear to act, speak, read or write anything that can displease the powers. To all powers present and potential, of today and tomorrow.
And one does not think that the fact that the information demanded from Verizon consists merely of metadata reduces the importance of the act. As written within the last few days by the social network guru Clay Shirky, “a query like ‘List every married man in Atlanta who sent a text message to a woman other than his wife between midnight and 4 a.m.’ is pure metadata.”
Our Entire Lives Are on the Internet
In fact, data mining technologies today allow extracting unsuspected quantities of information from metadata of this type. There is no secret that cannot be discovered in this manner, from gastronomic to sexual preferences, from political sympathies to behavioral characteristics and genetic illnesses. Snowden affirms that the NSA is “intent on making every conversation and every form of behavior in the world known to them,” and in fact, the biggest dream of the NSA seems to be the scenario of the Steven Spielberg film “Minority Report,” in which the behavior of all citizens is scrutinized in such a way that allows arresting a person before they commit a crime that he or she has begun to plan.
The PRISM information leak is far from the first of its kind; for example, USA Today published an explosive article in 2006 where it affirmed that the NSA forced AT&T, Verizon and BellSouth to provide them data about telephonic communications of tens of millions of subscribers. Espionage can be seen from afar, but the subject has died without visible consequences.
The Right To Not Be Spied Upon
For centuries, communications — first mail, later telephones — have been the object of a particular judicial protection; it is considered that through there passes a fundamental part of our identity, a more intimate part of our being than can be found in our drawers. But spying on our activity on the Internet means spying on our mail, our phone calls, our books, our purchases, our health records, our intimate schedule, our bank accounts, the votes we put in ballot boxes and much more. It’s because of this that it’s reasonable to demand that protection of the data relative to our activity on the Internet should be guaranteed in a manner as rigorous as the most sensitive data and not in a light manner, as some claim, with the argument that on the Internet there cannot be any expectation of privacy.
The issue is that we all have the right to not be spied upon, that this information was very useful for the prevention of certain risks and that the probability is very remote that this information can come to be consulted.
It’s extremely curious to see so many advocates for the NSA and its methods referring to the terrorist attacks that PRISM and similar programs will have prevented — a very contested argument, by the way, with many experts defending techniques that are more respectful of rights and are more effective and cheaper — without placing on the other side of the balance not even one inconvenient instance of espionage of innocent citizens, as if they didn’t exist.
In a 2009 interview with CNBC, the CEO of Google, Eric Schmidt, said, in response to a question about the confidence that users were able to have in Google as a bank of immense information about the private lives of all of us, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
The implication is clear: We should merely do, say, write and see that which does not matter what others know about us. And this is one of the best definitions of a totalitarian state that you can have.
It’s not admissible that a society who respects liberties — or, simply, the most basic free will — functions as such; it certainly is not the way a democratic society should function.
Morals of the Story
The moral of the story is far from being written, but there are some propositions that are able to begin to be enunciated. The first is that it’s unacceptable in a democracy that there are secret laws, secret courts of law with decisions that cannot be appealed, agencies with discretionary powers that are without any sort of democratic scrutiny, legislatures that are forbidden to discuss the function of institutions and citizens purposely kept in ignorance of the acts of their government.
The second is that, given all of these vices, there are good reasons to consider that all of these actions of the NSA and the FISA court are illegal and unconstitutional, by calling into question the right to privacy of citizens and democracy itself, and Snowden acted in an exemplary manner, as a true citizen.
The third is that in a globalized world, paranoia of a minority with totalitarian dreams in America jeopardizes our liberties all over the world and makes us vulnerable facing the first unscrupulous psycho that holds our data in his or her hands … which are, at this very moment, in Washington.
The fourth is that, if you haven’t already written your letter of protest to the American administration in your capacity as a user of the services of the companies who are being pressured by the NSA, sit yourself down at a computer and start writing it. It wasn’t only on Sept. 11 that we were all Americans. We are today as well.
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