Does Journalism versus Surveillance equal Terrorism?

August 21, 2013

The deten­tion of Glenn Greenwald’s part­ner does not raise any issues over the use of cur­rent anti-ter­ror­ism legis­la­tion to tar­get journ­al­ism. The law says:

A per­son com­mits an offence if—
(a) he col­lects or makes a record of inform­a­tion of a kind likely to be use­ful to a per­son com­mit­ting or pre­par­ing an act of ter­ror­ism, or
(b) he pos­sesses a doc­u­ment or record con­tain­ing inform­a­tion of that kind.

and

An examin­ing officer may exam­ine goods…for the pur­pose of determ­in­ing wheth­er they have been used in the com­mis­sion, pre­par­a­tion or instig­a­tion of acts of ter­ror­ism

So flu research­ers and train spot­ters beware, in fact almost any­one doing any­thing a ter­ror­ist might find use­ful should be care­ful — and who knows what ter­ror­ists find use­ful? And even ask­ing such a ques­tion, let alone research­ing it, might turn up inform­a­tion which said ter­ror­ists may indeed find use­ful.

Bad laws may well appear absurd, but they are laws non­ethe­less, and they can lead dir­ectly to jail. But the issue here is not law, or act­ing in solid­ar­ity with an embar­rassed ally, but powers that are on the brink of des­troy­ing the ‘watch­dog’ func­tion of journ­al­ism, and a soci­ety where a legis­lature with the resources of the 19C attempts to over­see a secret exec­ut­ive with the powers of the 21C.

When it comes to Edward Snowden, the secur­ity ser­vices clearly feel that they, and not journ­al­ists or MPs, are in the best pos­i­tion to decide on what ele­ments of his rev­el­a­tions con­sti­tute a threat.

Guard­i­an edit­or Alan Rus­bridger, who pub­lished them, was told by one intel­li­gence officer over­see­ing the destruc­tion of a secret-stuffed laptop: “You’ve had your debate. There’s no need to write any more.” The lit­er­ary equi­val­ent of “Noth­ing to see here. Please move along.”

Clearly the scope of the ter­ror­ist threat is per­ceived to be any evid­en­tial ques­tion­ing of the secur­ity ser­vices’ rela­tion­ships with oth­er powers and agen­cies, or any fac­tu­ally-based chal­lenge to the mech­an­isms through which they mon­it­or and inter­fere with lives.

The clar­ity ends rather abruptly. The evid­ence and facts required to make such chal­lenges are — by the very nature of the activ­ity — secret and there­fore must likely be obtained or held illeg­ally.

To make mat­ters mud­di­er, the argu­ment has to be con­duc­ted largely by proxy.

No one speaks dir­ectly for the secur­ity ser­vices, or if they leak on their behalf, their simple mes­sage is that the pub­lic — and the press — must trust them: that the over­sight mech­an­isms which gov­ern them are more than suf­fi­cient; the powers under which they oper­ate barely adequate.

This is hardly a unique pos­i­tion. Many of us feel that we should have more free­dom to act, few­er restric­tions on our beha­viour, more resources at our dis­pos­al. As Lord Leveson dis­covered, news­pa­per edit­ors are no excep­tion, espe­cially when it comes to the free­dom to humi­li­ate and shame celebrit­ies, politi­cians, and any­one fool­hardy enough to enter the pub­lic line of fire.

By com­par­is­on, the secur­ity ser­vices might be con­sidered mod­els of restraint. And there are indeed real plots and real threats.

Yet the rev­el­a­tions that our phone calls, inter­net searches, emails and texts are digit­ally stored and sifted, and the poten­tial for such inform­a­tion to be bought and sold (see Leveson above, although not just by journ­al­ists but by law­yers, insurers, and private indi­vidu­als) is a cause for con­cern that silence, or simple faith, can­not meet.

Thought­ful, lib­er­ally-minded pro­viders of digit­al sur­veil­lance ser­vices to gov­ern­ments acknow­ledge the prob­lem. This is Alex Karp of Palantir*:

In the case of gov­ern­ment agen­cies, he sug­gests an over­sight body that reviews all sur­veil­lance – an insti­tu­tion that is purely the­or­et­ic­al at the moment. “Some­thing like this will exist,” Karp insists. “Soci­et­ies will build it, pre­cisely because the altern­at­ive is let­ting ter­ror­ism hap­pen or los­ing all our liber­ties.” For­bes

No one seems likely to build it soon. Or to sug­gest how to over­see such over­seers. In the mean­time, we are wit­ness­ing the end of anonym­ous whis­tleblow­ing on the secret affairs of the state. As Rus­bridger wrote in the piece linked above: “it may not be long before it will be impossible for journ­al­ists to have con­fid­en­tial sources.” This will make offi­cial scru­tiny more neces­sary, and the bar of con­science yet high­er.

Let us not be under the illu­sion that whis­tleblowers are saints, and journ­al­ists their priestly con­fess­ors. But let us neither ima­gine that sur­veil­lance is a sword only wiel­ded by the just, and secrecy their only shield.

Absent a pub­lic debate and we must trust that our new secur­ity struc­tures con­tain no young digit­al Edgar Hoovers await­ing their moment, and that the most sin­is­ter res­ults of sur­veil­lance are embar­rass­ments at air­ports and not the Stasi-esque night­mare fic­tion­al­ised in The Lives of Oth­ers. If his­tory sug­gests any­thing, it is that we will only find out long after the event. Tech­no­logy, mean­while, is find­ing out ever more, ever faster.

*Palantir is a mem­ber of the Tech­no­logy Pion­eer com­munity of my employ­er, the World Eco­nom­ic For­um.

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