/tmp/think/tank on Snowden, Judges and intelligence governance

A US federal judge has ruled that mass government surveillance of the phone network is legal. What does that mean?

Judge and politics are trying to find a message, a communication solution to the NSA and surveillance problem. The NSA surveillance problem remains, as explained below, but these judge’s positions are in context of a political fight, judge are part of this.

In front of the public outcry against USA and NSA and the global Intelligence Community, the USA needed someone of importance to counter-balance other judges arguments and public opinion.

Judge Pauley’s ruling contradicts last week’s court ruling in Washington DC. Why do we have two completely opposite views on NSA surveillance?

Well, there’s an internal problem at NSA, it’s like an internal war is going on at NSA.

“Security is the problem” you will say is a problem, we agree, but not only this.

Much more importantly:
NSA is failing its job.

Too much data, too few efficiency, hidden by some small successes (but appartenly none on the terrorist side) that were used to justify usefulness of the mass surveillance programs. There’s a real imbalance.

The fail is that so much dollar invested and so much compromise of privacy for, in reality, not that much success.
And the ultimate argument is “We didn’t have another 9/11″. Physical security is ultimate thing you cannot touch and that everybody wants. And it’s a good argument to justify anything. More importantly than this, it is a way for the US to get a global information dominance. And this is the real agenda. It is a political tool, at the global level. You cannot say in the media that you use intelligence for this agenda, even though everyone knows it. It’s too much damaging and too much linked with the ego of USA leading class. Truth is shocking, that’s why you need media to “mediate” it to the public, even sometime by obscuring it or fading it to make it digestible.

In the USA, the NSA is not even able to reform itself from within due to this duality: discourse about homeland protection, reality of global information dominance for economical but also leadership goals.
Otherwise, Snowden would have used NSA internal way to solve imbalance rather than become a whistleblower. He said it.

Judge and politics are trying to find a message, a communication solution to it. But the underlying problem at NSA and in the Intelligence Community stays. There’s something being sold to the public, but below it, surveillance programs are only justified if you want to keep an unfair advantage at leading the world, not if you want to destroy terrorism. Remember also that terrorism is another tool for spy programs. Intelligence agencies have used terrorists since the beginning of 20th century at least to organize national changes and actions.

Some judges (Richard Leon) are thinking about the fundamentals, like Benjamin Franklin said:
“Who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”

Some others judges (William H. Pauley III) are more operations-focused and want to justify what is being used. And they need to find something which is not too much opposed to constitution yet enables the surveillance to go on.

These judges argue about the sense of the data. Metadata is who calls who. The definition of both the contents of monitored conversations and Metadata (the information of who calls who), is now much different than it was when first regulation about interception was first introduced:
Metadata has much more data (location, type of communication) and can be mined and explored in automated ways
Metadata is sufficient to classify you politically
Metadata is sufficient to know if you are conservative or liberal or fringe; stable or instable; etc…
And it can be done at the international level, having a “color card” for every one of digital-related human being.

So depending what meaning you put on a word, you get a very different view of uses, and of resulting ruling from judges. It’s very easy to manipulate this and navigate toward your hidden agenda. Who in the general public knew what Metadata was even a few weeks or month ago? How many people still don’t know and can be manipulated in saying “it’s harmless”?

Judge Pauley said that “the right to be free from searches and seizures is fundamental, but not absolute.” What does it mean? How are privacy rights limited?
Indeed, the fundamental problem is the catch-22 of modern democracies trying to hold the society together. And they try to use intelligence for this goal: to know that they are in control. (Sometime: to try to maintain illusion, but that’s only when they fail).
Not only USA, all modern countries have the same problem.

One part is real villains: they exist, they are not wise, some people fight them.

Another part is addressing inequalities.
It’s like water and dams.
Either you build a worldwide ecosystem with more equality.
Or you have to build better and stronger walls.
Today’s walls are NSA surveillance program and Drones in the eyes of politicians.
Tomorrow it may be something new.
That’s where public pressure and other states’ peer pressure are here to balance and make equilibrium.

When Judge Pauley says that “the right to be free from searches and seizures is fundamental, but not absolute.”, it’s true: if you’re suspected from a murder for example, you can be searched, there can be seizures.

He refers to this to justify the mass surveillance, but it’s by omitting the intent of constitution and law.

The US constitution says that citizen should be free from “arbitrary searches and seizures”:

The Fourth Amendment to the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Mass surveillance is random, permanent, global searches and capture of communication. And it is the case with NSA and intelligence agencies surveillance. It’s global, arbitrary, and that’s why it’s called mass surveillance.

The concept of house is now extended: your computer is your house. It contains your letter, your private journal, your photos. It is now located not only in your computer, but your family computer, which are often distributed around the country or the world. Hence the notion of “house” here applies globally, and its protection needs also to be global.

/tmp/thinktank analysis

Global / Governmental level

  • It’s only the beginning of a new intensity of criticism toward Intelligence Agencies global mass surveillance. It’s going to grow.
  • The level of impunity of states in uncontrolled mass surveillance is going to decrease. Just like the level of corruption is going to decrease.
  • Public is going to be more and more aware that the techniques used by mass surveillance are the same as the one being used by criminal organization and will protect themselves actively against online theft and identity abused in ways that will block part of both mass surveillance and online criminality.
  • Public, civil and lawmaking is going to increase oversight and intelligence agencies controls to improve democracy, even in front of enormous governmental and administration resistance.
  • Nation states are going to continue investing massively in surveillance technology until massive public backlashes in term of costs and lack of ROI proofs (low Return on Investment over massive investments).
  • True global improvements do not come from this societal domain of mass surveillance but from positive creation of value and sharing at the global level.
  • Mass surveillance is going to add more inertia to the governments investing in them, ultimately slowing these down to an organic disadvantage and thus lose strategically.
  • Legal interception mandated by judge will probably develop linearly with the increase of technology adoption by general public. Parliament will use these kind of metrics in order to monitor the activities of police-related interception.
  • Parliamentary oversight of intelligence agencies and surveillance program will increase, often with new tools to do so.
  • Return on Investment over mass surveillance will be calculated over time and published in media regularly to show good governance and accountability of intelligence agencies. Government and administrations failing to do so will be singled out internationally for their lack of governance.
  • Few governments will be able to use mass surveillance for global leadership and will statistically fall into the strategical losing party rather than being part of the strategical leaders, despite huge investments. Some governments will use these programs to slow down the fall of their nation by not being confident enough to use creation and production to invert the tendency.
  • Big governments (China, Brazil, India, Russia, USA, Australia) may be tempted to start investing or invest more into surveillance but will do in more balanced ways after analyzing the impact of Wikileaks and Snowden revelations. The attraction effect of “what can NSA do” will be balanced by the enormous costs and the exposed inefficiencies of such.
  • Governments, often smaller ones, with positive and creative orientation rather than the defense orientation may benefit from lighter, more agile form of democracy, along with better balanced budgets. This orientation will benefit from lighter or absence of mass surveillance, but not from this alone.

Individual level / Local level

  • General public is going to become globally more aware even if only a fraction of the public take actions to defend the general public rights and privacy.
  • Protection of privacy is going to improve dramatically, often through pervasive use of Cryptography in consumer products and applications.
  • Privacy is going to become more and more well regarded by consumers, understanding that it protects them both from online criminals and from uncontrolled mass-surveillance by governments.
  • New protection technologies will be provided by auto-organized groups, most often from open source software movement and hacker circles, and will be massively adopted in new upcoming communication devices and applications brought by start-ups and non-profit free software organization.
  • Software publishing corporations will be slower to adopt and publish privacy-enabling solutions but will gradually understand these are part of necessary security and recognize the growing market for such security.
  • Corporations will protect themselves more and more with the same techniques as individual do and will see impact on their own security posture. Some impacts will be positive such as better intellectual property protection. Some impacts will need new measures such as the pervasive use encryption (SSL/TLS for example) on DLP, IDS and IPS technologies.
  • Telecom and Mobile provider will need to show their investment in protecting against uncontrolled mass surveillance and will ask for more oversight and clearer situation from governments and administration.
  • General awareness against information insecurity by the general public will have tremendous positive impacts against online criminal activities, far out-benefitting the decreased efficiency of mass surveillance.

For more information, come see /tmp/lab conference on saturday 18th january 2014 at Médiathèque Aragon in Choisy le Roi.

 

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