LONDON – Last week in the Hague, Barack Obama seemed to have suddenly remembered the oath he swore on his inauguration as president — that stuff about preserving, protecting and defending the constitution of the United States. At any rate, he announced that the NSA would end the “bulk collection” of telephone records and instead would be required to seek a new kind of court order to search data held by telecommunications companies.
This policy change is a tacit admission of what Edward Snowden (and 2001 whistle-blower William Binney before him) had been claiming, namely that the warrantless surveillance of U.S. citizens by the NSA and other government agencies does, in fact, violate the constitution of the United States. Obama’s announcement looked to some observers as the first crack to appear in the implacable facade of the national surveillance state.
Dream on. The significant thing about Obama’s announcement is the two things it left out: surveillance of the Internet (as distinct from the telephonic activity of American citizens); and of the rest of the world — that’s you and me. So even if Obama succeeds in getting his little policy swerve through Congress, the central capabilities of the national surveillance state will remain in place.
At the heart of these capabilities is the “bulk” (that is, warrantless) collection and storage of communications metadata on an unimaginable scale. Given that metadata in this context is essentially a log of every communicative act that you make in cyberspace — where you went; who you emailed or texted; the URL of every website you visited; a list of every web search you’ve ever made; and so on — metadata nowadays constitutes information of a very detailed and intimate nature.
It’s the kind of data that in a civilized society would only be accessible to state authorities under very strict conditions. Yet we now know, thanks to Snowden, that all of it is freely available to the NSA and its overseas franchises.
This is intolerable, for various reasons. The first and most obvious one is the intimacy of the data that is being collected. What is even more offensive is the speciousness of the rationale that is trotted out by state authorities to “justify” it. This goes back to the era of analogue telephony when the U.S. supreme court decided that the “metadata” of a telephone subscriber consisted of a log of the numbers called, and that this log was the product of the telephone company, not of the subscriber. This was perhaps a not unreasonable judgment in an analogue era, but it is entirely inapplicable in a digital one.
Equally offensive is the argument, regularly trotted out by government apologists, that “collection” does not mean what any normal person thinks it means. Sure, they say, the metadata may be hoovered up by the spooks’ machines, but it isn’t actually “collected” until it has been looked at by a human being. This is either breathtaking casuistry or evidence of startling official ignorance of current capabilities in machine learning and pattern recognition. Either way, it’s bullsh-t.
Related to that is the way in which bulk collection of metadata undermines a fundamental principle of any civilized legal system: the presumption of innocence until proved otherwise. Current NSA/GCHQ practice effectively turns every citizen into a suspect to be surveilled.
Finally, there is the legal issue. Ever since Snowden began telling it like it is, the ultimate fallback position of the establishment has been that what the spooks are doing is “lawful.” Even if we accept that proposition, there is still the problem of bad laws caused by incompetent or dishonest lawmaking. And what we are now discovering is how flawed the U.S. lawmaking process relating to warrantless surveillance was. It was Dick Cheney and the politicians who decided what they wanted the NSA to do and drafted the law accordingly. This is no way to run a democracy.