Anyone investing much hope in President Obama reining in National Security Agency surveillance practices is not paying enough attention. The line from the White House feeding excitable headlines about likely “big” reforms is worthy of scrutiny (as, of course, is any line from the White House).
The president is expected to heavily restrict spying on foreign leaders — an NSA practice revealed by Edward Snowden’s leaks that understandably prompted a diplomatic firestorm from U.S. allies, like German Chancellor Angela Merkel, whose phones were being NSA surveilled. Obama is also reportedly (and somewhat more significantly for the rest of us) considering restricting the NSA’s bulk hoarding of Americans’ telephonic data. The latter reform was among the bolder suggestions made to the president in a report compiled late last year by an advisory counsel.
Six months after Snowden’s first revelations about NSA dragnet surveillance came to light, and with the sniff of coming reform in the air, it is crucial to consider what is at stake in these reform efforts and where their limitations lie. I propose (and have made this point here before) that there are profound limits to how far greater transparency and oversight of the spy agency will go in reining in our current state of totalized surveillance. A vast corporate-government surveillance nexus is intractably part of (and gives shape to) contemporary life under late capitalism; it won’t crumble with a handful of government reforms.
Secondly, reforms to NSA practices would be a Pyrrhic victory if Espionage Act charges facing Edward Snowden are not dropped. So long as Snowden continues to face persecution for bringing the extent of NSA surveillance to light, it is clear that we live in a dangerous national security state: Control over truths about government activities that affect us all remain in the hands of the few and the powerful. The pantheon of persecuted U.S. whistle-blowers — Snowden and Chelsea Manning chief among them — should stand as a chilling testament to the government’s war on information, which proceeds unabated. The status quo persists: Dissent on the pain of severe punishment.
The strongest reform reportedly under consideration by the president (and so the one I will focus on here) would see the end of the NSA’s dragnet collection of U.S. citizens’ call data. This is significant: A government that collects communications data without grounds for suspicion de facto treats every citizen as a potential threat. Under proposed reforms, 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. The NSA would be able to access the records only by obtaining separate court approval for each search, though exceptions could be made in the case of a national security emergency. The first point to note here is that if “separate court approval” entails something akin to the furtive decision-making of the Foreign Intelligence Surveillance Court, this is hardly reassuring. Secondly, the exemption for national security emergencies is predictable, but leaves the door open for continued abuses. Indeed, it’s been made abundantly clear in the wake of 9/11 that the supposed state of exception enabled by a national security emergency has been so normalized that the exception is the rule. We have been told: It’s always already a national security emergency.
On Dec. 20 Obama commented on the potential shape of NSA reform. The specifics of his words are worth noting. “There are ways we can do it, potentially, that gives people greater assurance that there are checks and balances — that there’s sufficient oversight and sufficient transparency,” he said. He commented that bulk collection programs like PRISM “could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse.” Aside from his notable use of qualifiers (“could,” “potentially”), the president’s focus was not on making drastic alterations to NSA practices, but on carrying out the sort of executive action that makes a public performance of showing activity that’s already going on to be within the realms of the legal.
If the question at hand is the dismantling of a surveillance state, the likely reforms offer no promise of this. Consider the fact that telecom firms will have to hoard user data in NSA-accessible form. It’s hardly possible — without, of course, dropping off the grid — for Americans to opt out of telephonic communications. The argument that we therefore consent to having our metadata hoarded is weak — what content has consent if refusal appears impossible? The shift from NSA data hoarding to telecom and tech giant data hoarding should not be overstated. Yes, there is a difference between a government surveillance dragnet compared to a corporate one — the government, not, say, AT&T, can directly jail, kill and persecute. But on the issue of privacy and why it matters, there’s not a profound difference to a world created by a totalized corporate surveillance state as opposed to government-centered surveillance state. Corporate surveillance works hand-in-hand with government surveillance — that’s not about to stop. But if a state of privacy is a state in which individuals can act without the assumption of surveillance, NSA reform brings us — those of us who use phones and interact online — no closer to a state of privacy. Glenn Greenwald told me late last year why he thinks privacy matters in principle. His words are worth repeating here:
A human being who lives in a world where he thinks he is always being watched is a human being who makes choices not as a free individual but as someone who is trying to conform to what is expected and demanded of them. And you lose a huge part of your individual freedom when you lose your private realm. Politically that is why tyranny loves surveillance, because it breeds conformity.
My colleague Andrew Leonard noted, “In 2013, the negative consequences of our contemporary lifestyles were impossible to ignore.” As such, we should not let the profundity of Snowden’s revelations be sublimated into narrow focus on surveillance reform. Reform is necessary, but not sufficient. NSA revelations give us pause to think not just about the specifics of that agency’s activities, but the shape of a world in which we have become primed subjects for total surveillance. We didn’t need the NSA to create a globalized network of surveillable subjects, nor is the NSA necessary to its maintenance. We live, through devices, as a countable, trackable population — it’s the lifeblood of contemporary consumer capitalism. Which in turn — by virtue of, as Greenwald put it, surveillance breeding conformity — has value to a state apparatus aiming to do away with dissent and rupture. In the process of urging restrictions to NSA surveillance, we must not fall into the trap of thinking we would therefore vanquish totalized surveillance and earn a realm of privacy. This would require nothing short of an entire rethinking of how we live and communicate. And indeed, to do justice to the sacrifices of whistle-blowers like Snowden and Manning, perhaps this is the least we can do.