Increased state surveillance can be thought of in several different ways, depending on where you stand. Described uncharitably, it’s a Faustian bargain that dissolves from within the very liberty and democracy it’s meant to defend. Viewed less negatively, it’s a social contract between state and citizen, albeit a contract one of the parties was never told existed, let alone handed the pen to sign.
In either case, it’s a quid pro quo arrangement where the transaction involved is relatively straightforward: the public agrees to allow the state to violate some of its more inviolable rights and freedoms as it sees fit, such as leapfrogging due process or encroaching on people’s privacy by reading their emails, listening to their phone calls or collecting other intimate personal information. In return, the state promises to use this increased presence in its citizens’ daily lives to keep them safe from threats by detecting possible terrorist activity before it happens, allowing authorities to step in.
As with any contract, its use is only as good as each party’s ability to uphold its end of the bargain. If one or both stop fulfilling their role, whether by choice or because they’re no longer capable of doing so, the agreement is null and void. The question is, are western governments pulling their weight in this deal?
It’s a question particularly worth asking a week on from what was arguably the most serious challenge to state surveillance in the West, in the form of the expiration of the Patriot Act, a once seemingly unassailable law that legislators regularly tripped over themselves to renew. With its provisions expired, the NSA temporarily lost its ability to sweep up a plethora of Americans’ private records, as well to carry out “roving wiretaps” and spy on non-US targets unaffiliated with foreign terrorist groups. This was despite an onslaught of dire warnings from US officials, including President Obama, who likened allowing the law to expire to playing Russian roulette. Congress’ inability to renew the Act, mere days before the two-year anniversary of Edward Snowden’s leak being revealed to the world, stands in stark contrast to the lopsided voting margins it passed with, and shows how far attitudes toward state surveillance have changed since the world first saw footage of Snowden in a Hong Kong hotel room.
This most recent episode also shows the limits of reform, however. The subsequent passing of the USA Freedom Act may be the most significant reform of US government surveillance powers in decades, but by reinstating some of the Patriot Act’s expired provisions it’s also something of a step back. And in fact, even this modest success is an outlier, globally.
Curiously, as much as the Snowden revelations generated worldwide outrage, protest and debate about government overreach, as well as putting spy agencies under unprecedented scrutiny, this has not spelled a sea change in surveillance policies throughout the West. Rather than a rolling back, the last few years have largely seen a doubling down of state power:
- In October 2014, Australia passed what are widely deemed to be some of the most authoritarian laws ever adopted by a democratic country, granting the government the power to spy on virtually any computer in the world with one warrant, imprison journalists and whistleblowers for a decade, and criminalize simply “advocating” terrorism, among other things. Presently, the Australian parliament is debating whether or not to empower the government to strip some accused terrorists of their citizenship.
- A mere two months after Snowden’s leaks revealed the extent of the NSA’s reach into the world’s telecommunications system, New Zealand passed a law allowing its foreign spy agency – with access to the NSA’s same systems – to spy on New Zealanders. Since then, it has incrementally expanded spy agencies’ powers, including allowing its domestic spy agency to spy on terror suspects without a warrant for a limited time.
- In the UK, the government instituted a law forcing communications companies to store all of their customers’ personal data for 12 months, rewrote an existing law to allow spy agencies and the police to hack computers with impunity, and recently introduced a new law that would let the government muzzle “extremist organizations”. Following the Conservative government’s election victory, it has proposed expanding its ability to collect and store data on a mass scale.
- The Canadian government pushed through legislation at the beginning of May that criminalizes the “promotion” of terrorism, empowers the government to remove “terrorist propaganda” from impressionable eyes, and expand its spy agency’s powers to now include intervening against terror plots.
- France, meanwhile, passed new surveillance powers that allow its intelligence agencies to tap phones and emails without a warrant, as well as put recording devices in homes and record computer key strokes in real time.
Not only were these measures all taken after Snowden’s leaks had set off a firestorm of debate about the proper limits of state powers, but all but one (France) of the countries listed above are members of the Five Eyes Alliance – the group of nations for whom the revelations were arguably most pertinent.
All of this begs the question of whether this continued legislative strengthening of spy agencies’ capabilities is actually justified by the results. Instituting these powers behind close doors without the public’s consent is and was outrageous enough in the first place. To keep handing shadowy government agencies’ more and more invasive powers therefore requires a compelling reason. At minimum, they would have to boast a solid track record of using these capabilities to prevent terrorist attacks – in other words, holding up their end of the bargain.
Indeed, if there’s only one reason governments have been able to defend or even expand these powers in the face concerted political opposition, it’s because they’ve successfully made the case for these programs’ effectiveness in keeping people safe. For US officials, the go-to justification is the September 11 attacks. Defending the NSA shortly after Snowden’s revelations, its former director Keith Alexander told a House Select Intelligence Committee that he preferred explaining the agency’s “rigorous oversight” to “trying to explain how we failed to prevent another 9/11.” Congressman Peter King, former deputy CIA director Michael Morell, and then FBI director Robert Mueller likewise asserted that September 11 would have been foiled had the NSA only had these powers then. Mueller even went so far as to say the programs were essential to preventing “another Boston.”
This is an argument repeated all across the globe. Attacking the opposition Labor party for their objection to a proposed law to expand the GCSB’s powers, New Zealand Prime Minister John Key questioned: “if one day there was a equivalent of the Boston bombings in New Zealand, would they be the very same members who would stand up and say they prevented New Zealanders from being kept as safe as they otherwise could be?” Proposing an extension of anti-terrorism powers last year, Australian Prime Minister Tony Abbott cited both ISIL and the anti-terror raids that had occurred four days earlier, stating that new laws “may be a small price to pay for saving lives.” Only a day after linking arms with other world leaders and marching in solidarity with Charlie Hebdo, British Prime Minister David Cameron announced that the “attacks in Paris demonstrated the scale of the threat that we face and the need to have robust powers… in order to keep our people safe.” Politicians the world over long ago learnt that even if they aren’t successful in using tragedies to manipulate the public, it can’t hurt to try.
To make such claims, and so frequently, one would think surveillance agencies would have an at least below-average record in stopping terrorism attacks. In reality, the record of security agencies in keeping their citizens safe has been dismal. Time and again, governments that have held the supposed trump card of near limitless surveillance have utterly failed to even detect, let alone prevent, terrorist attacks.
Far from Mueller’s warnings of “another Boston”, the first Boston bombing itself was a failure for the US national security state. Though they had been relentlessly hoovering up emails, phone calls and metadata for years prior, American security agencies appear to have been completely surprised by the attack. This was also despite the fact that the elder Tsarnaev brother had come to the attention of both the CIA and the FBI before the attacks.
The GCHQ sucks up more data than it’s able to actually store in its quest to “master the Internet”, including gaining access to an unspecified proportion of global Internet traffic and storing details of virtually all Internet users’ activities. Yet none of that helped security services prevent the murder of soldier Lee Rigby in 2013. Nor did it help them stop the attempted bombing of an English Defense League rally (a racist organization) in the same year – the attackers were late to the event, and were only caught when their car was later randomly stopped. In each of these cases, one of the perpetrators involved was known to (and in the latter case, being surveyed by) security agencies. Meanwhile, in the case of the attempted 2011 Birmingham bombings, the attackers were caught due to targeted surveillance, not an indiscriminate dragnet.
Membership in the Five Eyes Alliance and access to its toys similarly failed to help Australia and Canada in their run-ins with the long arm of terrorism. Last October saw two separate incidents labeled terrorism take place in Canada, when one man (who, again, was known to authorities) ran down two soldiers in his car, while another tried to storm the country’s parliament. Two months later, Man Haron Monis, out on bail while facing a whopping 40 charges of sexual and indecent assault, and with a history of writing hate letters to families of dead Australian soldiers, took 18 people hostage in a Sydney cafe. Just three days before the incident, the Australian Security Intelligence Organization (Australia’s domestic security agency) had received 18 calls about Monis regarding inflammatory posts on his Facebook page, but determined he was not an imminent threat.
Astonishingly, in both of these cases, the failure of security agencies to prevent harm to citizens was used as a justification for even more powers. If access to the NSA’s trove of virtually every kind of electronic data around the world, as well as the ability to survey a limitless number of computers with a single warrant, couldn’t prevent these attacks, it’s hard to see what could have. But this is the self-justifying logic of such laws: if they fail to serve their only purpose, it’s not an argument for repealing them – it simply means they’re not extreme enough.
The utter irrelevance of bulk surveillance to stopping any actual terrorism is perhaps best illustrated by the state of things in the US, which has fought the most high profile battle against terrorism, and in many ways served as the global leader in state surveillance in the process. Just recently, the Justice Department’s inspector general determined that the bulk collection of “business records” under the Patriot Act’s Section 215 – which has been interpreted so broadly as to include medical, tax and other records, as well as Internet metadata – did not result in any “major case developments”. Despite security officials’ claims, and the often touted and just-as-often disproved assertion that the NSA’s activities have thwarted 54 plots, the only plot that has been stopped thanks to the recently expired Section 215 was a case of a Somali man wiring money to an extremist militia in his home town.
In fact, evidence points instead to traditional law enforcement measures, such as tips and informants, as being the key ingredient to halting such incidents. This was the case with the foiled 2009 New York subway plot, which resulted from the monitoring of an email address found on a computer seized in a previous arrest. And even then, the US has seen its fair share of security failures: the failed “underwear bomb” in 2009, foiled due to the explosive’s malfunction; the 2010 Times Square bombing, which didn’t eventuate when that explosive, too, didn’t go off; and more recently, the shootings at Garland, Texas at an Islamophobic event. In a pattern that should be familiar by now, the latter was not the first terror-related run-in one of the suspects had with federal authorities.
All of this is not to say that security agencies should have been on high alert in every one of these instances. Quite the contrary – in a number of these cases, there was little indication that the individuals in question would turn out to be dangerous. Taking drastic measures every time someone sends an offensive tweet, is convicted of a crime or watches a particular type of video would not only be overzealous and highly illiberal, it would also be a massive waste of resources.
But based on security agencies’ own stated aims of collecting and knowing everything in order to keep the public unharmed, the results of expanded security powers have fallen short. Time and again, the agencies we hand our rights and freedoms over to to keep us safe have let threats slip through their fingers. If they were part of any other government program – one worth tens of billions of dollars a year, no less – this record of failure would lead to pundits bloviating about waste and inefficiency, and lawmakers renouncing their past support of the measures. At the very least, it wouldn’t lead to calls to double down. Yet that’s exactly what has happened.
In fact, these expanded powers aren’t only ineffective, but may be making us less safe. US officials have often made the point that security agencies needed the “whole haystack” in order to find that one elusive needle that could be the key to halting an attack. However, what today’s spy agencies are doing is not only collecting the whole haystack, but every haystack they can possibly find, rolling them all into an enormous jumble in which finding anything of value is nigh on impossible. If you collect it all, then sifting what’s pertinent from the white noise becomes increasingly difficult, which may explain why spy agencies have so frequently failed to make good on their end of the security bargain. The Intercept recently reported that this is certainly how some in the NSA feel, with critics within the agency complaining that they are literally collecting more data than they know what to do with.
Trading rights for physical safety is, to some extent, only human nature. Evolutionary instincts are strong, and there are few things we wouldn’t give up in order to ensure we keep on living, safe from harm. But we should acknowledge that the current tradeoff between our privacy and our security is a false choice. Spy agencies have repeatedly failed to either prevent or identify terrorist threats using mass surveillance, and no matter how deep we allow them to penetrate our inner worlds, they will continue to fail – and yet continue to try and dig deeper. It’s time to void the contract.
Branko Marcetic is a writer who completed his Masters thesis in history in 2014 at the University of Auckland, New Zealand, looking at the formation of early libertarianism in 1950’s America.
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