First things first, now that the White House advisory committee's report on National Security Agency surveillance is out: If it were not already abundantly evident, this report should serve as a 300-page vindication of Edward Snowden's whistle-blowing. Like a federal court ruling earlier this week that found the NSA's mass collection of telephonic metadata to violate Fourth Amendment privacy protections, the advisory report urges against the mass collection of U.S. citizens' call data.
In what many would and should see as a coup de grâce for the case against Snowden, the report goes as far as to state (although buried in fine print, as Politico noted) that the dragnet data collections, sanctioned by Section 215 of the Patriot Act, have not been "essential" in preventing terror attacks and (footnoted): "The section 215 telephony meta-data program has made only a modest contribution to the nation’s security … and there has been no instance in which NSA could say with confidence that the outcome would have been different without the section 215 telephony meta-data program.”
Snowden's leaks brought these NSA dragnet programs, like PRISM, to light. Both the judiciary and advisers to executive have deemed these surveillance practices not only unconstitutional, but unnecessary for national security. The suggestions (inscribed in the Espionage Act charges that he faces) that Snowden harmed national security with his leaks have been nullified; the value of his leaks to upholding civil liberties and constitutional legal standards has been amply proven. Anything but total amnesty for the whistle-blower is a national disgrace.
Now to the report itself, a curious document. In some ways it falls desperately short; in some ways it goes a long way in urging reform. Of course, it is not yet White House ratified and remains a set of recommendations only. Essentially it is a reflection of the problems (both ideological and practical) of our current national security state, its supporting corporate communications nexus and its modus operandi.
As the headlines today blare out, the report does recommend the end of the NSA's mass hoarding of millions of U.S. phone users' metadata. The prevailing thrust of the report is more nuanced, however: It suggests an end to mass data collection without sufficient cause and the ability to prove it. Thus, the report suggests that telecom companies, not government spy agencies, hold on to users' communications data, but -- and this is crucial -- in a format that makes the data readily accessible to the NSA. As the New Yorker's Amy Davidson commented, this sort of recommendation can be reduced to urging a shift in national security thinking: "Don’t do things just because you can. Tell people what the rules are. Remember that 'security' doesn’t just mean chasing terrorists — it 'refers to a quite different and equally fundamental value,' spelled out in the Fourth Amendment: 'The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"
Significantly, the report also recommends that the government should not "undermine efforts to create encryption standards" and not "subvert, undermine, weaken or make vulnerable" commercial security software. Among Snowden's more chilling leaks was the revelation that the NSA had purposefully weakened the very security of the Internet as it developed to serve the intelligence community's voracious hoarding complex.
That the White House's NSA advisory committee is constituted by numerous executive branch and national security insiders further highlights the necessity of surveillance reform Snowden's revelations made clear. The recommendations are stronger than expected. And certainly, placing the burden of proof on the spy agency to make clear why they need to collect certain data and metadata would prompt an attitude shift away from post-9/11 paranoid surveillance practices. The report calls for an end to the agency hoarding metadata and de facto treating every citizen as a threat worthy of possible observation.
But, as I and others have stressed, the surveillance state is not simply made up of the NSA and will not be undone by NSA reforms alone. A state of surveillance is upheld by a nexus of government agencies and tech/telecom giants. I will reiterate here what I wrote last week concerning the fortitude of a corporate-government surveillance state:
The intelligence community has been upholding a surveillance state largely without our knowing (until Snowden came along); tech giants like Google and Facebook have been operating on and building a surveillance state with our tacit consent. The curtailing of NSA mass surveillance through reforms and greater transparency will not dismantle the general state of surveillance in which we live — perhaps, though, it will create a state of surveillance (corporate surveillance) that people are willing to accept in order to live online and communicate easily. But, to be sure, that is no promise of personal privacy.
As the White House advisory committee's recommendations make clear; our telephonic metadata, even if reforms are enacted, will be held in surveillable form. Granted, they will not be handed over in bulk daily to a government agency, but the average phone and Internet user remains essentially trackable and tracked. To live as essentially unsurveilled subjects, it will take more than pushing for NSA reforms; the task is to rethink how we use our communications devices and apparatuses so as to not render ourselves always ripe for surveillance.
The advisory committee's recommendations point to a possible turning point in an ideological battle over the operations of a national security state. The report is an important recognition that this preemptive, prefigurative mode of policing and surveillance is not only unconstitutional, but also practically inefficacious if the aim is preventing terror attacks. But national security interests are only one pillar of the surveillance state edifice. It remains in the corporate-government interest to maintain a readily surveilled populace. As such, the enactment of the advisory board's recommendations (which is no sure thing) would be only the beginning in an uphill battle for unsurveilled selves.
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