Smashed Hard Drives, Shuttered Email Services, And The Slow Leak Of Free Speech

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It can’t be easy defending the NSA’s surveillance efforts. The task continues to be made increasingly difficult by the myriad revelations that continue to spill from the treasure trove of information that Edward Snowden released to the world.

It’s just metadata. It’s just metadata on all phone calls. No they can’t call up your emails. Well, yes, XKeyscore is real, and you should be happy we have it. No, there have been zero privacy abuses. Well, fine, in one 12-month period ending in 2012 there were 2,776, but that’s just proof of oversight and none were willful! Wrong.

And no, there has been no harm to individuals. We should worry more about terrorism.

That last one is the most recent line of arguing I’ve run into, and I find it hard to fully understand. It presumes that a supposed immediate or short-term risk — say of immolation via act of terrorism — is functional cause to toss out, on a chronic basis, rights of the individual.

The cost of lost privacy is not fixed, and it is not always immediate. Just as if I were to constrain your rights to free speech and assembly tomorrow — presuming you live in a country that protects such rights at all, something that we will get to — you might not run into those new boundaries right away. But you can be damned sure that when you did need your right to speak out, even the lightest limitation would be odious: Either you can say what you will, or the right to decide what can be said has been handed to someone else.

In the United States, we have a history with this specific bit of evil, perhaps best evinced in my view with the endlessly abused Espionage Act of 1917 and revoked mail privileges during World War I.

This dovetails into the privacy debate because it details that civil liberties are under constant risk of government impingement, and that government is more than willing to abuse its authority when it sees fit. Say, perhaps during a war. Perhaps even a war akin to the one that we are currently waging here in the United States. One that has no apparent end. This is the essential stop-gap argument for why we need to grant domestic spying agencies the right to doodle about in our private lives if it fancies them.

We can frame this in the form of a question: What would our reaction be if a foreign terrorist group had the ability to end privacy as we know it, and we then found out? Uproar in the streets, would be the pre-Snowden result, I think. Stern condemnations from Congress, and the like. War, even. Drone strikes at least! But we are now being told by friends and family and government alike that to protect us from terrorists we must commit ourselves to the actions that we would have found so damned awful to begin with.

If we sacrifice the American experiment of radical individual liberty to save the American experiment of radical individual liberty, what have we accomplished?

Let’s take a short trip through the past few days, in which result — that bugaboo “harm” — of the NSA’s actions has been material.

Lavabit shuttered its doors following governmental pressure for it to break its contract with its users and end their email privacy. Edward Snowden was said to be a client of the service. Death by association, if you will. 410,000 users were shut down in that process. Silent Circle, another email provider, followed suit.

Then, following Lavabit’s revelations, Groklaw announced early this morning that it will close. In a post announcing the end of the site and its work, Groklaw stated that its closure was in part due to the simple fact that “There is now no shield from forced exposure.”

Well, then.

Next up, the partner of Guardian journalist Glenn Greenwald was detained at Heathrow Airport in London for nine hours on the back of an anti-terrorism law. He was questioned, threatened, and then robbed of his computer and other effects. Happily, according to Greenwald, the contents of the electronics seized via force were encrypted. Greenwald, of course, has broken much of the information that Snowden leaked. The level of pettiness that now stains the governmental fretting over revelations of its activities is making the United States and the United Kingdom into bullies of schoolish nature.

And perhaps worst of all to come out of the NSA fallout is the U.K. authority’s threatening of the Guardian newspaper itself, and the later smashing of parts of its electronic hardware. This is the stuff of bad novels or, as you might call it, modern reality:

During one of these meetings I asked directly whether the government would move to close down the Guardian’s reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government’s intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks – the thumb drive and the first amendment – had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?

The man was unmoved. And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. “We can call off the black helicopters,” joked one as we swept up the remains of a MacBook Pro.

All right.

What is the harm in lost privacy? It’s broad and not always easy to touch directly. But as the above anecdotes detail, it is a rolling loss. You can’t be private if every encrypted email provider is bullied by the government into handing over data. You can’t be private if information on your every phone call is recorded. You can’t be private if your thoughts, notes, friends, information, and actions are recorded and kept in perpetuity.

We’re not quite there yet, thankfully, but what the NSA wants is simple: “Collect it all.” We’ve caught them halfway through the jar of baked delights.

It could be argued that we are conflating the NSA dragnet surveillance and the response to those involved in reporting it. For example, that we are mixing up the inherent privacy harm of XKeyscore and the response of the government to Lavabit once it discovered that Snowden had an account there.

I find that to be a distinction without a difference: The same arrogance and legal authority is being used in both cases. And if one is the fever and the other the sweat, then damn them both for being born of the same sickness.

What happens when you lose privacy? Well, a hell of a lot it turns out. And when you defy arrogated state authority, they don’t like it. Not one bit. But we don’t care if they don’t like it. What we want returned to us is our right to be private.

Top Image Credit: Andrew Malone