The End of Privacy

By Justin Randle
Photo of a surveillance drone

This article is part of our July focus on “Australia in the World”. Click here for more articles in this issue.

By Justin Randle

Though the technology and infrastructure has been building steadily for years, for many of us, the arrival of the high noon of mass surveillance and the end of privacy has been sudden, unexpected and unannounced. The warnings of the watchmen in the night, the whistleblowers, investigative journalists, publishers like Julian Assange and others having gone unheard or neglected by the mainstream media.

Most problematically, there was no public consultation on creating a global surveillance apparatus, which can reach into every facet of our existence. Politicians didn’t carefully elucidate the proposed changes or campaign on them. Candidate Obama didn’t say: if whistleblowers attempt to inform people about unconstitutional acts, crimes against humanity or government abuse they will be considered “enemies of the state”, vindictively pursued and routinely charged with espionage. On the campaign trail, there was no mention of a McCarthyist anti-whistleblower measure, the Insider Threat Program, that not only encourages Federal employees to monitor and report their colleagues but also criminalizes failure to do so. On the contrary, the Obama-Biden Plan stated:

“Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.”

So the public has been largely unaware that a mass global surveillance apparatus is now firmly embedded in modern life. Until now. The recent revelations by 29-year-old whistleblower Edward Snowden expose profound changes of such magnitude they can no longer be ignored.

The first revelation published in The Guardian was a secret court order instructing major US telecommunications company Verizon to provide the US National Security Agency (NSA) with metadata on all phone calls in its systems, on an “ongoing, daily basis.” That was closely followed by a bombshell in the Washington Post and The Guardian which revealed the previously undisclosed so-called PRISM program which gives the NSA and FBI access to the servers of Google, Facebook, Skype, Apple, Microsoft (Hotmail), Yahoo, AOL, and others without individual court orders. Under this program the NSA can access both stored and real time information including “email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details, and more.” Subsequent reports have included the revelation that the British Government Communication Headquarters (GCHQ) intercepted foreign politicians’ communications at the 2009 G20 summit and claim that the US agencies have hacked Chinese cell phone companies to steal SMS data. The most recent involves the US spying on European Union offices and accessing their internal documents, emails and phone calls.

Snowden exposed a global spying architecture capable of reaching into all of our communications and data; effectively the end of privacy as we know it. The NSA, CIA and other intelligence agencies argue that use of ever more sophisticated algorithms and tools to filter the vast amounts of information they hoover up is all done in the name of national security. Snowden’s leaks show that for these unaccountable agencies there is no information considered off limits; nothing is private; anyone’s online or phone data is but a signal to be analysed and stored.

The question that inevitably arises is what are people’s rights in this new world? Who owns your data? Where are the limits to what previously was considered private? Where does data sovereignty come in?

The Impact on Journalism

A key line of defense against the excessive use of government power is the media.

Unsurprisingly, state surveillance has journalism in its cross hairs. Unless journalists and sources are proficient in using encryption and anonymity platforms like Tor (which most are not), there is no guarantee that communication can ever take place without the state monitoring it. Combined with the fierce manner in which whistleblowers are pursued, this signals a potential death knell for investigative reporting by effectively criminalising it. This isn’t theoretical, it is happening now.

In May 2013, the US Justice Department acknowledged secretly accessing two months of phone records of over 100 Associated Press journalists and editors. The Newspaper Association of America stated: “these actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights.” The methods by which one of the oldest news agencies collects information and the identities of its confidential sources is exposed to the US Government by such measures. Days later it was revealed that Fox News journalist James Rosen’s personal email contents were searched by the FBI, as part of an investigation into classified information allegedly provided to him about North Korea in 2009.

This goes beyond surveillance, it is a crack down on one the most important groups in a liberal democracy tasked with holding power to account. Even if AP journalists did have the technology and inclination to go off the grid to speak to sources anonymously – who would now leak to them?

AP Chief Executive and President Gary Pruitt stated longstanding sources no longer speak to AP by phone. It was revealed that the night before the fearless investigative journalist Michael Hastings died at the age of 33, he wrote an email to friends stating

“the Feds are interviewing my ‘close friends and associates.’ Perhaps if the authorities arrive… may be wise to immediately request legal counsel before any conversations or interviews about our news-gathering practices or related journalism issues. Also: I’m onto a big story, and need to go off the rada[r] for a bit.”

He was investigating the NSA at the time.

Rise of the Drones

Representing a physical manifestation of the trend we see in electronic data collection is the proliferation of surveillance drones, again proceeding with scant public disclosure or debate. Both of these new forms of mass surveillance can, and are, changing the nature of the relationship between the citizen and the state.

In the US in particular, the drone manufacturing lobby is growing stronger by the day. They have strong advocacy links into Congress. As the push to profit from “the drone market” intensifies unsurprisingly, drones increase. The head of the FBI recently stated that surveillance drones are already being used on American citizens. He added that this happens “very seldom”. On the current trajectory, if the Snowden leaks are anything to go by, we can assume that this will increase.

It is not necessarily the case that all surveillance drone use is bad. Farmers cheaply surveying their land, emergency services locating missing or trapped people, or environmental groups uncovering corporate environmental violations are just some of the uses that could be beneficial. The problem is that drones proliferate, particularly in law enforcement, while discussions on privacy implications lag considerably.

We are witnessing what former NSA employee Thomas Drake called “a vast, systemic, institutionalized, industrial-scale Leviathan surveillance state that has clearly gone far beyond the original mandate to deal with terrorism—far beyond.”

Security and Privatisation

Fueled by an obsession with national security, the modern mandate for most mass surveillance efforts, both digital and physical, finds its origins in one of the biggest political blank cheques ever cashed: the so called “war on terror.” Under this rubric the US has given itself free rein to fundamentally reinterpret traditional understandings of the rule of law. New measures such as extrajudicial targeted killing en masse, indefinite detention without charge, extreme secrecy, mass surveillance, and secret courts providing secret rulings to secret requests have all become normalised.

All this to apparently keep people safe from terrorism. It hardly needs repeating, but such fears are statistically absurd. In 2010, 31,672 people died from firearm injuries in the United States. Six months after the latest mass shooting to gain widespread coverage, the President is still unable to get modest gun control measures through the Congress. In 2010, according to State Department statistics, 15 U.S. citizens worldwide were killed as a result of incidents of terrorism.

We are witnessing what former NSA employee Thomas Drake called “a vast, systemic, institutionalized, industrial-scale Leviathan surveillance state that has clearly gone far beyond the original mandate to deal with terrorism—far beyond.” There are 4.9 million people with a US “government security clearance,” another 1.4 million have a top secret clearance. In the Washington Post’s two-year investigation, “Top Secret America”, it was reported that “some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.”

The growth of private corporations and consultants who intricately feed into, and off of, this metastasized, sprawling intelligence-industrial complex also present a number of serious issues. The private sector has private interests. Edward Snowden was, like up to 75 per cent of the NSA, a contractor employed by a private corporation. His employer was Booz Allen Hamilton. Booz Allen Hamilton was bought by the Carlyle Group in 2008. It means that for-profit companies convey the highest level intelligence information to elected officials through contracts often not subject to Congressional oversight.

“A category of people – most over the age of 50 – are putting in place a surveillance scheme that monitors a whole generation of teenagers and young adults who’ve never agreed to have their diaries, photo albums, emails and phone records copied and stored by the government forever.”

Surveillance Down Under

These issues are not confined to the US. Australia is also an active player in this radically changing world.

Though the Australian Government has done very little to assist or advocate on behalf of Julian Assange, it did recently pass the Public Interest Disclosure Act. This is a good first step in protecting Australian whistleblowers, though it does not apply to whistleblowing in respect of politicians or the intelligence community.

On the mass surveillance implications for Australia, former Australian defence intelligence analyst, Professor Clinton Fernandes says, “there is clear potential here for conduct ranging from mischief to malice to outright malfeasance. After all, the large number of people with security clearances and the ability to violate the public’s privacy far exceeds the few who are tasked with providing oversight.”

The Parliamentary Joint Committee on Intelligence and Security, recently tabled a report with 43 recommendations, including that mandatory data retention not proceed unless privacy concerns are addressed. But Professor Fernandes says this committee, “that is supposed to oversee the intelligence agencies, tends to have some members who see themselves as barrackers rather than scrutineers. They invariably argue for more funding, for example, and may receive some briefings only after a whistleblower has already taken the risk and gone to the media.”

Ultimately, Professor Fernandes notes, “a category of people – most over the age of 50 – are putting in place a surveillance scheme that monitors a whole generation of teenagers and young adults who’ve never agreed to have their diaries, photo albums, emails and phone records copied and stored by the government forever.”

Herein lies hope: a generation schooled to accede to massive state power is also producing people who courageously stand up against it.

It is highly likely that Australia receives information collected by the US through the PRISM program. But due to the overwhelming secrecy of Australia’s security agencies and a bipartisan consensus on “not commenting on matters of national security,” the full extent of electronic surveillance in Australia is difficult to accurately gauge. Further leaks may be our best chance at knowing more about this.

However, it is not difficult to gauge the understandable cynicism of young people about politics.

In Kevin Rudd’s first speech as Prime Minister, for the second time, he noted that cynicism about politics affects young Australians.  He said he understood why and urged their return to the fold. A key driver of cynicism is the abuse of power, and mass surveillance is an example of this. It is also something of a crime being perpetrated upon the young by the old. While young people record their lives year by year on the internet, there was never informed consent requested or given that all of those private conversations, musings and photographs would be analysed, sold and stored indefinitely by corporations and governments in secret.

But being raised in a digital environment also means young people are uniquely placed to resist it, for the state is unlikely to cede ground voluntarily. It was the moral courage of a 23-year-old US Army private, Bradley Manning that exposed horrendous crimes, abuse, and corruption in Iraq and Afghanistan. Edward Snowden just turned 30. Herein lies hope: a generation schooled to accede to massive state power is also producing people who courageously stand up against it.

Justin Randle is a researcher. He is a former Ministerial Adviser to the Victorian Government and has previously worked for the United Nations in Israel Palestine. He tweets at @JustinRandle_