Yet in retrospect, this approach taken by the NSA looks reckless. It depended on these arrangements staying completely secret. In June 2013, the Washington Post said that Microsoft, Google, Facebook, Apple, YouTube, Skype, AOL and Yahoo cooperated with the NSA’s PRISM programme. The companies said that they provided data only when legally obliged to do so.[53]
It is worth noting that the initial coverage of PRISM was accompanied by some serious inaccuracies and misrepresentations.[54] It does not give the NSA the claimed ‘direct access’ to these companies’ servers. It is a way of transferring data collected under a court order. The Washington Post also backed away from its initial claim that the companies concerned ‘participate knowingly’.
Nonetheless, the business models and brands of these companies are dented. They are furious with the administration, both for what they were made to do, and because it has been made public. Microsoft, for example, has issued a statement decrying the interception of customer data on its networks as an ‘advanced persistent threat’—the term normally used for Chinese and other cyber attacks.[55] Microsoft says it will expand the use of encryption, challenge gag orders in court and make its software more transparent (to allay fears that it may contain accidental or deliberate flaws which enable snooping).
But the distorted lens through which the Snowden cheerleaders view the world magnifies failings close to home, and obscures those abroad. The shortcomings of the West become its defining characteristics. Greenwald, with his extensive experience as a trial lawyer specialising in corporate wrongdoing, provides a caustic if glib account of America’s misdeeds. He cites the Bush administration’s foreign policy, the rendition (kidnapping) and torture of terrorist suspects, past incidents of warrantless wiretapping, and much more besides. These are real problems and should indeed provoke soul-searching among those who wish the West to occupy the moral high ground, and for democracies to maintain their political and economic pre-eminence. But they are no excuse for nihilism.
As the journalist Brendan O’Neill points out:[56]
Conspiracy theorising and the cult of the whistle-blower have the same origins: a crisis of democracy, the collapse of public engagement, and a dearth of faith in politicians and even in politics itself. The more that some people feel alienated from politics, cut off from the old to-and-fro of political debate, the more they can feel tempted to embrace hare-brained stories about tiny cliques of rich folk or lizards or Jews running everything behind our backs. Conspiracy theories feed off the carcass of democratic engagement. And so it is with whistle-blowing, too: the more that radicals lose faith in both the political system, which they view as totally corrupt, and the little people, who are ‘wilfully ignorant’, the more they come to believe that only brave, truth-wielding individuals can save the world from enslavement by a dastardly elite.
The Snowdenistas’ extremism and hyperbole reflect a mind-set which the blogger Catherine A Fitzpatrick has outlined well in her essay ‘When Thinking Styles Collide’.[57] She was actually writing about the geek world’s attitude to anti-piracy legislation, but the points she makes also highlight the weakness of other self-described crusaders for digital freedom, who scorn the law-making process, and judicial and parliamentary oversight, as out-of-date or irrelevant in the digital age. Geeks, she says, do not ‘get’ governance.
• They don’t understand how a bill becomes a law and don’t believe in the process;
• They don’t understand how cases get prosecuted and how evidence has to be presented and [how] the different parts of the judicial system operate… checks and balances;
• They don’t get how judicial review works to determine constitutionality.
The problem, she argues, is that tech-savvy people tend to look at laws as if they are computer code. In the software world, even a tiny flaw negates a hugely strong premise. Once a bad law is on the books, they believe, it will operate like bad software: mechanically, like a guillotine. So: ‘unless every single edge-case, hypothetical, problem is identified, spelled out, and remedied, nothing can stand.’
That is not the way that a modern law-governed society works. Imperfections and hard cases abound. The art of politics and administration is balancing constraints and anomalies in a way that produces the least unfair or dangerous outcomes, now and in the future. That world is messy and sometimes murky. To the self-righteous and impatient it may seem impossible to change. But for all its faults, it is capable of correction. America recovered from the McCarthy era. The Church committee reined in an out-of-control FBI after the abuses discovered in the 1970s. The same is true in other Western countries.
Zealots such as Snowden prefer their own judgment to the outcomes that this flawed, slow, muddled system provides. It is their right to believe this and to act on it—within the law. But their form of protest takes the form of stealing and publishing state secrets, in a way that causes irreversible damage (impact, as they would put it). This is not an approach that would be tolerated in other forms of protest. Anti-nuclear activists may blockade power stations or weapons facilities. Even they would regard it as irresponsible to try to sabotage them, aiming to cause maximum damage, in the expectation that the resulting debate will outweigh the harm done.
Arbitrary power is the great grievance of the Snowden camp. Who gave the NSA and GCHQ the power to bug and snoop? The real answer to that is simple: the elected governments and leaders of those countries, the judges and lawmakers who have the constitutional authority to supervise intelligence services, and the directors of the agencies in the exercise of their lawful powers. You may not like the system. You may think it needs improving (I do). But never in the history of intelligence has supervision been stronger. America in particular stands out as a country that has taken the most elusive and lawless part of government and crammed it into a system of legislative and judicial oversight. Greenwald simply dismisses such arrangements. For those in search of reform, he argues, ‘the answer definitely does not lie in the typical processes of democratic accountability that we are all taught to respect’.[58] Instead, he thinks the answer lies in international pressure on America. Shame and destruction, not votes, laws and institutions, bring about reform.
The question about arbitrary power actually deserves to be posed in the other direction. What constitutional authority do the Guardian, Der Spiegel or the New York Times have? What gives them the right to leak their countries’ most closely guarded secrets, obtained at vast expense, and with the sacrifice of tens of thousands of man-hours? Even the most passionate defenders of press freedom would hesitate to say that editors are the supreme guardians of the national interest. And even the most self-important editor would hesitate to claim omniscience. What expertise do editors and journalists have in handling these stolen secrets? How can they judge that a particular programme is worthy of exposure (rendering it useless overnight and perhaps endangering those who have worked on it) and that another can be spared the glare of publicity, at least for now and possibly ever?
53
http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html?hpid=z1; http://techcrunch.com/2013/06/06/google-facebook-apple-deny-participation-in-nsa-prism-program. Dropbox was also reportedly involved, but denied any knowledge: Larry Page and David Drummond, ‘Official Google Blog’, June 7, 2013, http://googleblog.blogspot.de/2013/06/what.html
54
http://www.zdnet.com/the-real-story-in-the-nsa-scandal-is-the-collapse-of-journalism-7000016570; http://news.cnet.com/8301-13578_3-57588337-38/no-evidence-of-nsas-direct-access-to-tech-companies
55
56
57
‘When Thinking Styles Collide: Silicon Valley, Congress and C.P. Snow’s Two Cultures’, http://3dblogger.typepad.com/wired_state/2012/06/when-thinking-styles-collide-silicon-valley-congress-and-cp-snows-two-cultures.html. See also the follow-up post ‘Who can be trusted’, http://3dblogger.typepad.com/wired_state/2013/12/who-can-be-trusted-on-nsa-and-encryption.html