Tuesday, April 1, 2014

A Re-awakening: Reporting, Government & National Security

‘[A]ll of the mechanisms of accountability, all of the checking powers that exist in both political and civil society are re-awakened by transparency. And then we get to decide, collectively, where we want to draw the line.’
Barton Gellman
Sources + Secrets: A Conference on the Press,
the Government & National Security
21 March 2014

It is tempting—and commonplace—, in thinking about what we have learned about the power and scope of government surveillance, to focus on the person of Edward Snowden, only the latest and perhaps most controversial source of a vast amount of data on this issue.

Mr Snowden is not unimportant to the story, obviously. He is a story. 

There is the question of what Mr Snowden did and did not do. (Remember: Mr Snowden published nothing himself but rather made information available to media.) And, Mr Snowden has made personal choices after the publication of information he helped facilitate that perhaps complicate our assessment of him in an already complex context.

But, to focus on Mr Snowden to the exclusion of the information we now know is, I think, to miss larger (at least equal) considerations.

There is also the question of what we have learned as a result of these revelations. We have learned what we have about government surveillance in part precisely because Mr Snowden did not simply unload raw data into the public square but chose to reveal information to a mediated, an edited institutional actor, the Press, to make deliberate and deliberated choices about what to publish, when and how. 

I think we miss, too, considering how The Context, for lack of a better phrase, may invite if not Mr Snowden  in particular someone or some kind of similar revelation. There is the problem of oversight of someone in Mr Snowden’s position as a contracted government employee, to be sure. Surely there is the problem of contracting this work at all. There is also the question of the duration and scope of our national security concern and the secrecy with which government has pursued its national security function.

The extent of what We have learned has shown Us the extent of what We did not know. And what We did not know—whether effective in securing our secrecy or not—We have the right to know. Surely someone, at some point, would come forward in some way. In a sense, Mr Snowden is a reprise if not a kind of Newton’s Third Law of Motion applied to government secrecy.

I do not suggest government may not restrict access to specific information for specific amounts of time. I understand the need to protect information that will likely compromise the success of government efforts to effect a national security.

Nor do I suggest that Mr Snowden is absolved by virtue of what we have learned. Law contemplates what what we recognize: a meaningful consideration of the information we know and how we come to know it. Indeed, Mr Snowden’s return to the US will benefit Us in this debate, if We are smart enough to use his return to consider the complicated proposition of understanding what he did (and did not do), what We learned, what We do not like, what We punish and how.

This arc in thinking about Mr Snowden and what We now know is perhaps obvious enough. Though, what may be obvious bears repeating. It is also important to think a bit more specifically. In addition to Mr Snowden and whether national security is important (it is) and the NSA’s character (something Professor Geoffrey Stone, a member of the President’s Review Group on Intelligence and Communications Technologies, helpfully clarifies as better than he expected) there is what our new knowledge allows.

The following, from Barton Gellman, at Secrets + Sources, is a fine example of the contention:

The crucial thing that’s happened here is an increase in transparency.
Obviously, information is power. Secrecy is very great power, especially when coupled with surveillance, because you make us transparent and yourself opaque in government.  
Because of this transparency, you’ve seen not only journalism building on itself but all kinds of other things happening. 
In the private sector, you have now awakening, for the first time in my memory, a real marketplace for privacy. There were small outposts of that before. But, they were, they were boutiques. 
You now have large companies competing to demonstrate to consumers, because consumers are worried about their privacy, because of these revelations, for...to show that they are more secure than others. Google has, as a result of some of the reporting, encrypted all the traffic between its data centers. Yahoo, which resisted for four-and-a-half years encryption by default between its computers and our computers, has now promised, on the day of one of the NSA [National Security Agency] stories, that it will encrypt all of them, or will have encrypted all of them by last January. So, it has done so. 
In the legal field, you have law suits to try to challenge whether some of these programs violated statutes or the Constitution, which were thrown out before on grounds, for example, that the plaintiffs could not prove they personally were affected and so they had no standing. Now they can prove they were affected. There’s documentary proof out there. And so the lawsuits are re-awakened. We will find out which of these programs are constitutional and which are not.  
You have advocacy change.
And, you have Members of Congress who happily went along with these programs and said, ‘Sure. Why not. They seem fine to me.’, who now are hearing from constituents and are changing their views and their votes.
And so, all of the mechanisms of accountability, all of the checking powers that exist in both political and civil society are re-awakened by transparency. 
And then we get to decide, collectively, where we want to draw the line.
We may not like how we got here. In that thought, we clearly include assessing Mr Snowden. We ought to include an assessment of government surveillance in the name of national security and, perhaps even more important, what, how and when we come to know details about government surveillance in the name of national security.
What has resulted from these revelations—the substance of what we know and the processes that our knowledge has facilitated—is central to cherished ideals of democratic self-government. Perhaps we can find a better way to re-awaken ourselves.


The above is my own transcription of Mr Gellman’s quote from his participation in “The Snowden Revelations,” a panel at Sources + Secrets: A Conference on the Press, the Government & National Security (21 March 2014).