Barry Eisler

Tuesday, August 27, 2013

David Miranda and the Preclusion of Privacy, Part 2

Last week I argued that the UK government's lawless detention of David Miranda, spouse of Guardian journalist Glenn Greenwald, was intended to make journalism harder, slower, and less secure (and see this great follow-up by NYU journalism professor Jay Rosen of Press Think).

Today, I'd like to discuss a common leftist reaction to the National Surveillance State's war on journalism:  the idea that journalists should preempt government attacks like Miranda's detention and the destruction of Guardian computers by immediately dumping onto the Internet any secret files that come into their possession.

The notion is superficially appealing:  if you're a journalist, patiently examining a large trove of secret documents so as to minimize the private harm and maximize the public benefit of publication, and there's a chance the government could impede or intercept your efforts, shouldn't you insure against such a dire possibility by immediately publishing everything you have?

To answer this question, we should ask two of our own.  First, what are your proper objectives as a journalist?  And second, what does the National Surveillance State hope you'll do?

I think many people would answer the first question with some version of, "The proper objective of a journalist is to make information public."  This is fine as far as it goes, but I don't think it's complete.  To me, the proper objective of a journalist is to bring about meaningful change.  Publication by itself could conceivably serve a variety of functions:  it could embarrass, or titillate, or entertain… it could provide some level of emotional satisfaction for the journalist and her audience.  Any one or combination of these could be an objective of journalism, but is any of them a worthy objective?  I would argue no, not particularly, at least not in comparison to what I think is the most important objective of journalism, which is, again, to bring about meaningful change.

(For more on the exceptionally interesting and important topic of what journalism is for and how it can best be done, have a look at The Greatest Trick the Devil Ever Pulled, and especially at the links at the bottom of the post.)

If you agree that the proper objective of journalists like Barton Gellman and Glenn Greenwald and Laura Poitras is to use their reporting to bring about meaningful change, I think you have to agree that timing and tactics matter.  That is, what course of action would have a better chance of achieving meaningful change:  immediate, indiscriminate dumping, on the one hand, or deliberate, time-released reporting, on the other?  I would argue the latter, and I think the events of the last two months tend to suggest that the kind of drawn-out, deliberate reporting for which Greenwald has been criticized by some on the left support that argument.  James Clapper, the Director of National Intelligence, has been caught lying to Congress; public opinion has shifted dramatically; voters are engaged in an overdue debate about programs of which previously they had no knowledge; Congress only narrowly defeated an effort to defund the NSA's bulk collection of Americans' phone records.  Of course I can't prove causality, but I can't see how any of this would have been achieved, or in any way better served, by an immediate indiscriminate data dump.

Pushing back the National Surveillance State is a long game that requires sound tactics.  Those tactics can only be properly understood by reverse-engineering from the correct objectives.  Yes, it might be emotionally satisfying to embarrass powerful officials, and it might be temporarily empowering to feel like you're flipping the bird to a bunch of self-important oligarchs, and yes, an immediate dump might be the proper tactic in the service of such objectives.  But they are the wrong objectives.  If meaningful change is your primary goal, you have to work backward from that objective, and not let other, less worthy ones distract you.

But look, even if you disagree about which tactic would be most likely to bring about meaningful change, might the fact that we share a goal and differ only about tactics be cause for some perspective?  The fury I've seen in some portions of the Twitterverse at Greenwald's insistence on a patient, deliberate approach seems out of all proportion.  I know patience, perspective, and civility aren't necessarily the hallmarks of Twitter  discourse, but still.  This is -- I think -- a discreet disagreement about the utility of certain tactics, not a culture war about philosophical aims.

Okay, now let's ask that second question.  What does the National Surveillance State want?

Well, let's use that handy tool of trying to put ourselves in the shoes of those determined to spy on everything boundlessly and totally.  You're determined to make journalism harder, slower, and less secure by interdicting backup means of communication -- detaining couriers, invading newsrooms, that sort of thing.  But you're smart, too, and you know that for every action, there is a reaction.  Spies and soldiers are trained never to attack without first asking, How will the enemy react to my attack?  Because that reaction could be dangerous, meaning you might have to reconsider your original plan, or it might be useful, creating a new vulnerability that you can then exploit.

Let me put it this way:  do you think it's even conceivable that the National Surveillance State is engaging in tactics like detaining the spouses of journalists and invading newsrooms, without having first imagined how journalists might respond?  Is it even conceivable that the spooks are unaware they're are creating an incentive for journalists to just dump everything on the Internet as a way of preempting governmental attempts at interdiction?  No, it isn't conceivable.  The government is engaging in these tactics knowing full well that the tactics will incentivize less careful, patient, discriminate reporting.  What follows, then, is one of two things:  a journalistic "data dump" reaction is either a risk the National Surveillance State is willing to take… or it is an objective it is attempting to achieve.

Which is it?  I would argue the latter.  Again, put yourself in the shoes of our secret overlords:  if you can goad someone like Greenwald into rashly dumping improperly vetted secret information onto the Internet, is that a loss for you… or is it in fact a significant win?

Answer that question by asking, what would the data dump cost you, and what would it gain?  Operationally, it would cost you little.  Spying operations have been continually outed since the dawn of the Cold War, and the size and power of the National Surveillance State has only grown.  A few new revelations will have no more impact on the leviathan-like expansion of your reach than have any of the previous ones.  Conversely, a blown listening station, or better yet, a dead human asset, would be enormously useful:  it might enable you to shift the narrative from lawlessness and overreach to something more like "These traitor journalists have blood on their hands!," which you know is your propaganda trump card.

All this being the case, you might not merely hope someone like Greenwald would abandon his patient, methodical reporting in favor of something more knee-jerk and less careful.  You might go further than just hoping.  You might even try to provoke Greenwald -- say, by harassing his family.  You might even try to manufacture opportunities to change the narrative -- say, by leaking a few ostensibly damaging secrets yourself and blaming them on Edward Snowden.  More than anything, if you're the National Surveillance State right now, you crave a bloody shirt you might wave to try to blow back the tide of thoughtfulness and rationality precipitated by Edward Snowden's whistleblowing, and by the extremely careful reporting accompanying it thus far.

(Or, short of that, wag the dog by going to war with Syria, I guess.  That kind of thing is always a good distraction.  But I digress.)

On balance, therefore, I'd have to say that if journalists start dumping secrets in response to government interdiction efforts rather than judiciously reporting them, it will be a win for the National Surveillance State.  The National Surveillance State understands this, and is choosing its tactics accordingly.

Of course, if you're one of the people who's been agitating for an immediate, indiscriminate, knee-jerk document dump instead of the patient, deliberate approach that has kept Snowden's revelations as front page news for over two months now, the fact that you and the National Surveillance State both want the same thing isn't necessarily dispositive.  But it ought to give you pause.  When you find yourself and your antagonist both trying to bring about the same thing, one of you is being smart, and the other, naive.  Best to give a little more thought about which is which, and choose your tactics accordingly.
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Thursday, August 22, 2013

David Miranda and the Preclusion of Privacy

Updated Below

I think it's obvious to any reasonable observer that the UK authorities detained David Miranda, spouse of Guardian journalist Glenn Greenwald, to intimidate journalists and whistleblowers -- to "send a message," as Greenwald put it.  But I also think there's something more going on.

Put yourself in the shoes of the National Surveillance State (given the kind of US/UK cooperation involved in Miranda's detention, we could as easily call it the International Surveillance State).  In collusion with US telcos, you've succeeded in commandeering the Internet, and are able to monitor at least 75% of American Internet activity.  Further such monitoring represents opportunities for improved coverage only at the margins, and because people are now changing their Internet behavior to evade government eavesdropping, you realize you have to turn your attention to emerging attempts at privacy.  You will have to focus especially on journalists, the fourth estate:  as Guardian editor Alan Rusbridger has observed, "The Guardian's work on the Snowden story has involved many individuals taking a huge number of flights in order to have face-to-face meetings.  Not good for the environment, but increasingly the only way to operate.  Soon we will be back to pen and paper."

Under these circumstances, if you were the NSA, and you learned -- say, by examining passenger manifests and customs data -- that Glenn Greenwald's spouse was traveling from the couple's home in Rio to Berlin, currently the home of Laura Poitras, Greenwald's collaborator on the blockbuster Snowden revelations, what would you do?

You might reasonably suspect that the spouse, trusted by both parties, was helping Greenwald and Poitras in some fashion with their reporting.  If you dug into credit card transactions and learned the Guardian was paying for the spouse's travel, your suspicions would harden.  You might decide to place a call to your contacts at Britain's GCHQ, mentioning to them that a certain Brazilian national would soon be transiting Heathrow en route from Berlin to his home in Rio, and recommending ever so artfully that this Brazilian national be detained, all his electronic gear confiscated, his personal passwords revealed to you under the threat of imprisonment (yes, the UK airport authorities really can legally imprison you if you don't tell them your Facebook password.  They have to, to keep you safe).

Of course you wouldn't formally direct the UK authorities to do anything; you'd want to maintain the ability to obscure your involvement without outright lying about it if possible.  And of course you might not even be sure the spouse would be carrying anything secret at all, but intercepting secret information wasn't really the purpose of the exercise anyway.  The purpose was to demonstrate to journalists that what they thought was a secure secondary means of communication -- a courier, possibly to ferry encrypted thumb drives from one air-gapped computer to another -- can be compromised, and thereby to make the journalists' efforts harder and slower.

Does this sort of "deny and disrupt" campaign sound familiar?  It should:  you've seen it before, deployed against terror networks.  That's because part of the value in targeting the electronic communications of actual terrorists is that the terrorists are forced to use far slower means of plotting.  The NSA has learned this lesson well, and is now applying it to journalists.  I suppose it's fitting that Miranda was held pursuant to a law that is ostensibly limited to anti-terror efforts.  The National Surveillance State understands that what works for one can be usefully directed against the other.  In fact, it's not clear the National Surveillance State even recognizes a meaningful difference.

The National Surveillance State doesn't want anyone to be able to communicate without the authorities being able to monitor that communication.  Think that's too strong a statement?  If so, you're not paying attention.  There's a reason the government names its programs Total Information Awareness and Boundless Informant and acknowledges it wants to "collect it all" and build its own "haystack" and has redefined the word "relevant" to mean "everything."  The desire to spy on everything totally and boundlessly isn't even new; what's changed is just that it's become more feasible of late.  You can argue that the NSA's nomenclature isn't (at least not yet) properly descriptive; you can't argue that it isn't at least aspirational.

To achieve the ability to monitor all human communication, broadly speaking the National Surveillance State must do two things:  first, button up the primary means of human communication -- today meaning the Internet, telephone, and snail mail; second, clamp down on backup systems, meaning face-to-face communication, which is, after all, all that's left to the population when everything else has been bugged.  Miranda's detention was part of the second prong of attack.  So, incidentally, was the destruction of Guardian computers containing some of Snowden's leaks.  The authorities knew there were copies, so destroying the information itself wasn't the point of the exercise.  The point was to make the Guardian spend time and energy developing suboptimal backup options -- that is, to make journalism harder, slower, and less secure.

A heart beset by coronary disease will begin to recruit secondary arteries to carry oxygenated blood.  If you're the NSA, you recognize you have to block those developing secondary routes, too, or you'll lose control of the flow you feed on.  To the National Surveillance State, therefore, coverage of Miranda's treatment at Heathrow isn't a bug.  It's a feature.  And why not?  The authorities want you to understand they can do it to you, too.  Whether they've miscalculated depends on how well they've gauged the passivity of the public.

Updated:  Part 2 is here.
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Monday, August 19, 2013

Heathrow Isn't an Incident. It's a Principle

In case you missed it, yesterday for nine hours at Heathrow Airport the UK authorities detained David Miranda, the partner of Guardian journalist Glenn Greenwald, under an anti-terrorism law, and have confiscated all Miranda's electronic gear, including games and a watch.  No explanation was given; no news about when or even whether Miranda's property will be returned to him.  This is the kind of thing the US likes to criticize when it's China or Iran doing it.

Maybe you don't like Greenwald -- his personality, his reporting, what he stands for, whatever. Maybe on a gut level you find Miranda's detainment pleasing, and so you'll support it.  If so, remember that you're not supporting an incident, you're supporting a principle -- the principle that governments can harass the family members of journalists they don't like, or anyone else.  The principle that governments can detain you and confiscate your property without any due process or even a word of explanation.  That's the principle at issue here.  The government fully understands this.  Do we?

Some related reading:

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Wednesday, August 14, 2013

Tom Friedman: No Sixth Amendment For You

Updated Below

Every time I come across a Tom Friedman column, I ask myself, "Could this guy get any stupider?"  And every time, he manages to find a way.

Yesterday's drivel was about whistleblower Edward Snowden.  Let's try to unpack the Friedmanesque quantities of bullshit he crams into one short paragraph.

"Considering the breadth of reforms that President Obama is now proposing to prevent privacy abuses in intelligence gathering…"

Obama's proposed "reforms" are a joke, a whitewash, and an insult to anyone with a functioning brain.

" the wake of Snowden’s disclosures, Snowden deserves a chance to make a second impression — that he truly is a whistle-blower, not a traitor.  The fact is, he dumped his data and fled to countries that are hostile to us and to the very principles he espoused. To make a second impression, Snowden would need to come home, make his case and face his accusers. It would mean risking a lengthy jail term…"

Wow.  Snowden now "deserves a chance" to be afforded a trial as guaranteed by the Sixth Amendment, but in the absence of Obama's proposed whitewash, he would have had to forfeit his Sixth Amendment rights?  This is very generous of Friedman, suggesting that under proper conditions an American might deserve Constitutional protections.  What does Friedman think Snowden "deserved" before Friedman decided he had earned his "chance" at being afforded his Sixth Amendment rights -- an imperial drone execution?

And "the fact is" that Snowden "dumped his data?"  Snowden personally reviewed everything he handed over to The Guardian's Glenn Greenwald and The Washington Post's Bart Gellman, held back a great deal more, and instructed Greenwald and Gellman to use their journalistic discretion in determining how and how much they should publish of even the limited amounts he gave them.  To call this "dumping" is to eviscerate the word of meaning.

And Snowden was bad for fleeing to "hostile" countries?  Initially, he went to Hong Kong; he then got stuck in Russia when the US government revoked his passport.  Which means:  he's in Russia now because the US government stranded him there. Where would Friedman prefer Snowden fled -- France? Italy? Portugal? Spain?  All of which are so in thrall to the United States that, acting on a tip that Snowden was on board, they denied access to their airspace to the plane of Evo Morales, president of Bolivia, forcing him to land in Austria, where he was then detained for twelve hours.

And does it ever occur to Friedman that there's a reason an American whistleblower might feel compelled to flee?  That the the US government might bear some responsibility for why an American whistleblower might feel compelled to seek asylum abroad?  More on this below.

I couldn't help noticing that Friedman referred to a possible lengthy "jail" term.  This might be because Friedman doesn't know that jail is where people are held before sentencing, and that prison is where they're sent after.  Or he might have been using the term accurately after all, given that Bradley Manning spent three years in jail, much of it in solitary confinement, before his sentencing; given that journalist Barrett Brown has been in jail for over a year awaiting trial; and given the US government's demonstrated proclivity for imprisoning people indefinitely without any sentencing at all -- indeed, without even bothering to accuse them of a crime (we call these unfortunates "detainees" because, having been convicted of nothing, they can't be convicts, and because "prisoners" sounds so harsh.  "Detainees" just sounds so much more pleasant; really, it's almost as nice as "guests").

"...but also trusting the fair-mindedness of the American people, who, I believe, will not allow an authentic whistle-blower to be unfairly punished."

The ignorance here -- or the mendacity -- is breathtaking.  Does Friedman really not know that the U.N.'s special rapporteur on torture formally accused the US government of cruel, inhuman and degrading treatment for locking Bradley Manning in solitary confinement for almost a year?  Has he really never heard of William Binney?  Thomas Drake?  Jesselyn Radack?  The eight whistleblowers the Obama administration has accused of espionage and worse?

Or maybe Friedman thinks none of the punishments these people received was "unfair."  Or that, although the US government has clearly and repeatedly abused its powers, the American people "will not allow" such things to happen this time!

In fact, I doubt even Friedman could be that ignorant or that naive.  More likely, he's hanging his hat on that weasel-word, "authentic."  Because if Tom Friedman thinks you're not authentic, you just don't qualify.  This is a version of the "No True Scotsman" fallacy.  It's also a variant of Obama's own Humpty Dumpty policy, by which America minimizes civilian drone-strike deaths by defining anyone killed in a drone strike as a terrorist.

Maybe the saddest thing of all about Friedman -- sadder than his ignorance, sadder than his bullshit -- is that he actually seems to believe someone with the conscience, conviction, and courage of Edward Snowden could possibly give a shit about making a proper second impression, or any impression at all, on an establishment tool like Friedman.  Can you imagine the level of narcissism required in urging someone to risk torture and life in prison for the chance to make a proper impression on you?

If I were as much of a solipsistic, self-important, l'etat-c'est-moi naval-gazer as Friedman, at this point I might advise him that he must find a way to make a better second impression on me!  Perhaps by repenting for all the bullshit he's ever dumped on any reader foolish enough to trust him, and particularly for his cheerleading for American "Suck on this" barbarity in Iraq.

But I'm not so neurotic as to expect other people to make decisions about their lives based on what kind of impression their decisions might make on me, and not so ignorant as to suggest their constitutional rights might be forfeit should they fail to please me.  That's Friedman's schtick.  I wish someone he trusts would do an intervention.  He really needs help.

Update:  The Freedom of the Press Foundation has its own typically excellent take on Friedman's latest excrescence:

"No, he can’t. Snowden will not be able to make the case he’d like to make in court because, contrary to common sense, there is no public interest or whistleblower exception under the Espionage Act. In recent cases, prosecutors have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant, and are therefore inadmissible in court..."
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Monday, August 12, 2013

Obama: The Sodomy Will Continue Until You Get Used To It

If I put this in a novel, people would say no way, it's too brazen, too bullshit, it could never happen.  But:  the "review" Obama says he wants of NSA activities?  He's going to have it run by James Clapper, the Director of National Intelligence (to whom the NSA reports), the guy who lied to Congress about what the NSA is doing.  So... the NSA will be functionally reviewing itself, with the head of the review someone with a proven history of lying to Congress about the NSA.

Even if the review were being run by a trustworthy outsider instead of proven-liar-insider, its purview would be grounds for pause:

"The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust."

Translation:  "We're going to ask, Can we collect even more than the 'all' we're already vacuuming up?  And can we do it in such a way that we'll have fewer leaks and the American people will squeal a little less?"  This is what Obama thinks America will accept as a "review."

As I said elsewhere:  "Shorter Obama: the NSA will go on fucking America's ass.  But we will consider using some lubricant."

I know it's not a surprise.  But it's still an outrage.  When the government's bullshit levels exceed what even fiction writers might consider plausible, it's probably not a good sign.
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