Crypto and empire: the contradictions of counter-surveillance advocacy

Abstract

Since Edward Snowden’s revelations of US and UK surveillance programs, privacy advocates, progressive security engineers, and policy makers have been seeking to win majority support for countering surveillance. The problem is framed as the replacement of targeted surveillance with mass surveillance programs, and the solutions put forward are predominantly technical and involve the use of encryption – or ‘crypto’ – as a defense mechanism. The counter-surveillance movement is timely and deserves widespread support. However, as this article will argue and illustrate, raising the specter of an Orwellian system of mass surveillance, shifting the discussion to the technical domain, and couching that shift in economic terms undermine a political reading that would attend to the racial, gendered, classed, and colonial aspects of the surveillance programs. Our question is as follows: how can this specific discursive framing of counter-surveillance be re-politicized and broadened to enable a wider societal debate informed by the experiences of those subjected to targeted surveillance and associated state violence?

Keywords

digital rights activism empire encryption George Orwell infrastructure privacy surveillance

Introduction

Since Edward Snowden’s revelations of the National Security Agency (NSA) and Government Communications Headquarters (GCHQ) surveillance programs, privacy advocates, progressive security engineers, and policy makers have been seeking to win majority support for countering surveillance. The problem is presented as the perpetration of mass surveillance and the solutions put forward are predominantly technical and involve the use of encryption – or ‘crypto’ – as a defense mechanism. Techno-legal arguments have been popularly expressed through an artificial differentiation between mass and targeted surveillance. But as this article will address, this strategy is based on a number of contradictions and comes at a great cost.

First and foremost, the normative distinction of mass and targeted surveillance deems ‘targeted surveillance’ legitimate for national security purposes and places it beyond the scope of public debate. ‘Everybody is under surveillance’ serves as the point of departure for a market-driven technical response to reclaim privacy, without addressing the ways in which surveillance disproportionately affects marginalized communities and peoples. Universalist proposals for ‘globally applicable’ technical solutions mask that the most prominent initiatives to address surveillance issues are situated in the United States and Western Europe and are mainly discussed through the socio-political lens of technical specialists. As such, these discussions fail to give space to those who are on the receiving end of global surveillance programs and linked forms of violence, such as extrajudicial killing, torture, and impoverishment including populations in the United States and Europe whose racialization has been integral to histories of colonialism, plantation slavery, and empire, up to the War on Terror’s construction of Muslims as objects of a racial surveillance gaze (Kundnani, 2014).

In this article, we will illustrate the inadequacy of such responses to the Snowden revelations as articulated by prominent civil society initiatives like Reset the Net, technical experts like Bruce Schneier and Chris Soghoian, official legal documents responding to the revelations, and prominent newspaper articles. We share the conviction that the counter-surveillance struggle is important and that Snowden’s courageous disclosures contributed greatly to such a project. However, as this article will argue and illustrate, raising the specter of an Orwellian system of mass surveillance, shifting the discussion to the technical domain, and couching that shift in economic terms undermine a political reading that would attend to the racial, gendered, classed, and colonial aspects of the surveillance programs. This demands our critical attention as the depoliticization of counter-surveillance projects implies that structural inequality, subordination, and marginalization are cast out of the realm of political contestation. We are instead presented with a ‘normal’ economic sphere of market rationality that is ostensibly apolitical. Hence, our question is as follows: how can this specific discursive framing of counter-surveillance be re-politicized and broadened to enable a wider societal debate informed by the experiences of those subjected to targeted surveillance and associated state violence?

Mass surveillance as Big Brother?

In his video message broadcast in Britain on Channel 4 on Christmas Day, 2013, Snowden remarked that Orwell had warned us of the dangers of the type of government surveillance we face today (Snowden, 2013). References to Orwell’s Nineteen Eighty-Four have been widespread in the counter-surveillance debate; indeed, sales of the book were said to have soared recently (Hendrix, 2013). It is therefore worth examining the claims that Nineteen Eighty-Four makes with regard to surveillance and totalitarian forms of government, in particular with a focus on the notion of mass surveillance that is often invoked with the image of Orwell’s Big Brother. The continuing debt to a mid-20th-century account of surveillance constrains analysis in significant ways, not least on the crucial question of how race is inscribed in surveillance. Orwell approaches this question with the prejudices of his day, taking totalitarian rule to ultimately involve a kind of non-Western barbarism and thereby failing to grasp surveillance itself as a racialized form of governing. Nevertheless, there are aspects of Nineteen Eighty-Four that are suggestively comparable to our own time. Orwell’s ‘telescreens’ resemble our own networked screens that receive and transmit simultaneously. Just as we have scant chance of knowing whether our individual online activity is being monitored, so too, for Nineteen Eighty-Four’s Winston, there is no way of knowing which individual wires government spies are plugged into. But the wider context of surveillance in Nineteen Eighty-Four is the typical mid-20th-century image of a totalitarian state. The novel presents Oceania as a gray, cold world of dull uniformity, sexual repression, and 3-year plans, where historical memories have been erased and crude propaganda dominates. Even the gin tastes bad. As a government bureaucrat, Winston lives according to the routine assumption that every aspect of his life might be scrutinized. Surveillance is undifferentiated and universal. The writing of a diary in Oceania is a crime punishable by death, unlike our world today, where the injunction to self-diarize through social media and mobile apps is the very basis upon which digital surveillance rests.

The subjectivity that underpins Oceania is the masses’ docile devotion to the totalitarian system. When Orwell wants to capture this mindset, he turns to images of the non-Western other. Consider, for example, this passage describing the ritual displays of loyalty to the regime:

… the entire group broke into a deep slow, rhythmical chant of ‘B-B! … B-B!’ – over and over again, very slowly, with a long pause between the first ‘B’ and the second – a heavy, murmurous sound, somehow curiously savage, in the background of which one seemed to hear the stamp of naked feet and the throbbing of tom-toms. (Orwell, 1954: 16–17)

Elsewhere, Orwell introduces the suggestion that the totalitarianism of Oceania is the political expression of ‘Oriental despotism’. Oceania’s rival, Eastasia, does not need to base its totalitarianism on a new ideological formation like Big Brother’s ‘Ingsoc’ but simply draws on what Orwell implies is traditional Oriental philosophy, characterized as adhering to the principles of ‘Death-worship’ and ‘Obliteration of the self’ (p. 157). And the embodiment of the Big Brother regime, O’Brien, has a servant, Martin, whose ‘expressionless’ ‘Mongolian face’ (pp. 136, 141) is connected by Orwell to the ‘double-think’ (i.e. the rejection of the rules of logic) upon which the regime’s totalitarianism relies. The implication is that in the East, the abolition of the self and of logic, which totalitarianism requires, is indigenous rather than innovatory (Pietz, 1988: 62). A significant strand of Orwell’s critique of totalitarianism is thus to portray it as a kind of cultural import from a distinct and more primitive society – an alien corruption of European modernity and rationality, not a product of Europe itself.

In this respect, Orwell’s Nineteen Eighty-Four resembles another classic of the mid-20th century literature on surveillance and totalitarianism. As Pietz argues, Hannah Arendt’s The Origins of Totalitarianism refers to totalitarianism’s linkage to ‘Oriental despotism’ which had, Arendt says, always rested on ‘the mass man’s typical feeling of superfluousness’, a feeling longstanding in India and China but only appearing in modern Europe with the industrial era’s atomization, breakdown of social stratification, and mass of lonely individuals (Arendt, 1958: 311). In this way, totalitarianism was, on some deep level, externalized from the history of the West, and viewed as resulting from the corruption of European politics by an alien form (Pietz, 1988: 69). Her model for this process of alien corruption was Joseph Conrad’s Heart of Darkness: European colonizers, confronted by the ‘savagery’ of the colonized population, degenerated into ‘savages’ themselves, setting a precedent for the would-be totalitarian leaders of the European ‘mob’ (Arendt, 1958: 185–191).

Pointing to the limitations of Orwell and Arendt’s notions of mass surveillance, particularly the subtle but significant ways they understand it as an alien intrusion into a pristine Western political culture, is instructive. Their influence on today’s privacy advocates is not simply a matter of their ideas impacting on readers but the deeper ‘common sense’ assumptions and images of the nature of surveillance that undergird privacy advocacy and which are largely inherited from the Cold War.

The production of racialized subjects through surveillance has a long history, running through government censuses, police record-keeping, and colonial discourses of ‘tribal’ and ‘ethnic’ definition (Browne, 2009; Mamdani, 2012; Sa’adi, 2012). But it is crucially a history that is inseparable from the history of state racism. As John Fiske (1998) has written, surveillance ‘enables different races to be policed differently, and it has an insidious set of ‘chilling’ effects upon the freedoms of opinion, movement and association that cumulatively produce racially differentiated senses of “the citizen”’ (p. 69). In other words, racialization is essential to the surveillance mechanisms that are in turn intrinsic to the modern social order. If we live in a panoptic society, it is also a racial panopticon. When NSA officials state that they only focus on the ‘bad guys’ not ‘average people’ (Ledgett, 2014), those terms are in practice racialized and mobilize a flawed ontological separation between deserving and innocent targets, and, correspondingly, good and bad surveillance. It is this differentiated aspect of state surveillance that is lost if we draw on the classic image of a mass surveillance society depicted in Nineteen Eighty-Four.

A more differentiated reading of these surveillance infrastructures and their entanglements with larger political projects is necessary. The relations of empire are increasingly embedded in a media infrastructure of military and commercial digital networks, laws, norms, attitudes, and practices that create institutionalized structures whereby the flows of global power, exploitation, and surveillance are facilitated, connecting and binding people into, often racialized, groupings (Larkin, 2008: 5–10). It is an infrastructure that links the visual and Wi-Fi surveillance of military drones, the commercial databases of US tech corporations, homeland security profiling at airports, and the interrogation of detainees at Central Intelligence Agency (CIA) black sites (Andrejevic and Burdon, 2015: 31). The power of this media infrastructure lies both in the direct effects of its use and in the spectacle it presents of technological power. As Mattelart (2010) argues, this ‘globalization of surveillance’ builds on longer structures of criminalization and colonialism but now moves easily across earlier boundaries between state and industry, military and civilian policing, and internal and external security, inaugurating a new mode of global control (pp. 198–199). This infrastructure works not by identifying individuals as suspects, whether in a bulk or targeted fashion, but through diffuse and widespread monitoring based on algorithmic risk assessments (Lyon, 2003: 674, 2014: 3), which are ultimately linked to maintaining the rule of capital and empire. Race too is inscribed in this infrastructure, producing a global ‘identity-industrial complex’ and a ‘raceless racism’ embedded in identity databases, bodily surveillance (Browne, 2009), and ‘rational discrimination’ (Gandy, 2010: 30).

Mass versus targeted surveillance

If we look at the current policy debates and different forms of mainstream political resistance against government surveillance in the wake of the Snowden revelations, we generally observe not resistance but complicity with the institutionalized structures of empire through the way in which the surveillance problem is framed and addressed. Specifically, the current debate has snapped to grid on a techno-legal distinction between mass and targeted surveillance. Experts in policy circles now widely use this distinction to frame the injustices done by ongoing government surveillance programs, the NSA’s in particular, and the way the injustices should be addressed through the political process and elsewhere.

In these framings, mass surveillance stands for the large-scale data gathering activities of governments about everyone. Thus, mass surveillance is indiscriminate, by definition. It involves methods that sweep up the data and communications of the entire population, notably including those of innocent people. Widely discussed examples are the US government program of bulk collection of communications meta-data (Greenwald, 2013) and the wholesale global interception of communications that flow through fiber-optic cables (Washington Post, 2013). The value of bulk collection is that it would allow the government to find the needle in the haystack ‘because international terrorists inevitably leave footprints when they recruit, train, finance, and plan their operations’ (Review Group, 2013). Thus, this logically leads to ‘the NSA’s collection of everything it can obtain on every communications channel to which it can get access’ (Schneier, 2014b). And ‘because such information overwhelmingly concerns the behavior of ordinary, law-abiding individuals, there is a substantial risk of serious invasions of privacy’ (Review Group, 2013). Moreover, the notion of mass surveillance is used to raise the specter of the all-seeing state that no longer respects freedom, resembling an Orwellian or simply non-Western society: ‘Ubiquitous surveillance should have died with the fall of Communism’ (Schneier, 2014a).

By contrast, targeted surveillance is portrayed as the collection of the data and communications of those who are considered to be the legitimate targets of government investigation and repression. It involves targeted collection methods, such as government agents actively and covertly taking control of specific communications channels and devices to gather data on specific individuals. The targets are typically short-handedly referred to as those who want to harm ‘us’ – criminals, terrorists, and foreign powers that threaten the interests of the proper community. Thus, it follows that targeted surveillance represents ‘the best of the NSA and is exactly what we want it to do’ (Schneier, 2014b) or what we should prefer it to do instead of mass surveillance (Blaze, 2014).

From a legal perspective, the legitimacy of surveillance is situated in the application of legal review and scrutiny by relevant judicial and executive authorities. As United Nations (UN) Special Rapporteur (2014) Emmerson concludes in a recent report, ‘[w]ith targeted surveillance, it is possible to make an objective assessment of the necessity and proportionality of the contemplated surveillance, weighing the degree of the proposed intrusion against its anticipated value to a particular investigation’ (p. 4). The assumption here is that targeted surveillance can be considered an appropriate use of state power if the legal system is granted the task of assessing its proportionality.

Thus, the distinction between mass and targeted surveillance helps to narrowly delineate the contested terrain. What is not questioned is the larger political, economic, and military function of national and global surveillance practices. In principle, the state surveillance apparatus is considered legitimate as long as it has and pursues legitimate targets, such as criminals and terrorists, and respects the fundamental rights and freedoms of the population, protected through the UN Charter or constitutional rights such as the Fourth Amendment in the United States. The grounding of protections in legal rights such as the Fourth Amendment here also serves to cultivate inclusion in an imagined (national) community:

In a free society […], people are secure in the sense that they need not fear that their conversations and activities are being watched, monitored, questioned, interrogated, or scrutinized. Citizens are free from this kind of fear. In unfree societies, by contrast, there is no right to be let alone, and people struggle to organize their lives to avoid the government’s probing eye. (Review Group, 2013: 44)

The distinction between mass and targeted surveillance practices is problematically superficial on many levels. First, the distinction relies on a rather formal separation between industry and government surveillance. Clearly, Internet users are already subjects of the comprehensive collection and analysis of their data and communications by corporations. This industry surveillance is taking place in the shadow of explicit laws and secret informal arrangements allowing for government access to data. The specific value that corporate entities or government agencies may try to extract from their surveillance of populations may be different, but ultimately, it is unproductive to treat them as separate problems (Gürses and Diaz, 2013).

Second, as argued above, the distinction relies on an imaginary in which those under surveillance are only those who deserve to be targets. Even in cases of targeted collection methods, however, the data that are collected relates to more than those imagined as ‘legitimate targets’. Not only individuals or organizations but also parts of the technical infrastructure and entire countries are the subjects of targeted government data surveillance programs. As journalist Glen Greenwald has reported, for example, Yemen’s digital infrastructure – in this case, Wi-Fi signals in the air – is used to map cities, which allows the NSA to monitor a population, online and offline. Apparent internal NSA mottos (‘We Track ’Em, You Whack ’Em’) point to the ways monitoring provides the basis for lethal action (Poitras et al., 2014; Priest, 2013; Scahill and Greenwald, 2014). Even in a world of only targeted surveillance, agencies like the NSA would target a variety of ‘innocent’ entities to establish information dominance for the national security and foreign affairs purposes they pursue, which go far beyond keeping an eye on individuals or organizations allegedly posing a direct threat.

At a strategic level, the focus on bulk collection practices within the counter-surveillance rhetoric apparently serves the purpose of broadening the audience for this agenda. It invokes an emotional category toward the politically privileged and stays clear of discussions of how specific communities like African Americans, indigenous communities, ethnic and religious minorities have long been deliberately targeted and disproportionately affected. If the problem is mass surveillance, then what is at stake is not a violent geo-political agenda led by a few very powerful states or the deliberate targeting of communities within national contexts, but that now ‘everybody’ is under surveillance. The ‘innocent citizens’ who are unduly victims of mass surveillance programs must then stand up for their freedom. They must set a precedent that defines the value of freedom, which through programs like the Internet freedom agenda is presented as safeguarded by the United States and US-based technology companies (US Secretary of State, 2010). In sum, according to this line of thinking, it is essential that the NSAs of this world dismantle their mass surveillance programs and restrict them to activities directed at their legitimate targets, that is, criminals, terrorists, and foreign powers.

Crypto as the answer

The bottom line is that encryption works.

Edward Snowden

While some legal reforms have been proposed that would render certain bulk collection programs illegal, proposals for the use and wider deployment of encryption technologies have become the dominant theme in counter-surveillance initiatives. Partly, this turn to technological solutions flows from a distrust within the (security) engineering community, be it academics or engineering practitioners, toward these mainstream political institutions. Specifically, members of these communities tend to be skeptical about the possibility of achieving institutional change and unimpressed by the apparent lack of legal reform in this specific political moment (Williams, 2014; Zetter, 2014). Even if the relevant institutions could be marshaled against surveillance programs, the programs could continue secretly. Hence, many in the technical community in the United States and the United Kingdom see the re-engineering of communication systems and protocols as a preferable solution and as the most effective protection against mass surveillance, the anathema of a free society. But what is crypto, and what is it not, and what does it mean to develop a counter-surveillance strategy around technical solutions?

In very simplified terms, encryption is the process of encoding information in human-readable media into a garbled state so that only intended parties with access to a decoding mechanism and a secret decryption key can access its content. When encryption is applied to data flowing over the Internet, that is, it is garbled, it disables others than the intended recipients to access the content of the information transmitted. Similarly, organizations can encrypt data they hold in storage. However, if they hold a copy of the secret key, they can still provide governments or others access to this information.

In the last few decades, encryption has become more readily available to the masses. Knowledge of advanced encryption techniques used to be tightly controlled by states and their intelligence agencies. The ‘cypherpunks’, originally a group of mostly US-based activist-technologists, played an important role in the availability of advanced crypto for civilian use. According to this group, it is up to ‘coders’ to guarantee privacy to the masses through technological design. Cypherpunks argued that with the proliferation of communication networks, governments would inevitably increase their surveillance capabilities. As an antidote, they proposed technologies in the communications infrastructure in order to ensure the confidentiality of information. They further envisioned techniques to conceal the identity of a user to a communication partner and to hide from third parties who is communicating with whom. Put together, confidentiality of information and anonymity, and the technologies for making these properties attainable for the public, were considered fundamental to the freedom of the individual in the face of organized surveillance of ‘governments, corporations, or other large, faceless organizations [that cannot be expected to] grant us privacy out of their beneficence’ (Hughes, 1993). In the current counter-surveillance debates, technical experts are referring to this technical understanding of privacy based on confidentiality and anonymity when debating privacy.

In contrast to the libertarian underpinnings of many cypherpunks, technical experts and their supporters have used ‘effectivity’ as the lens through which to evaluate responses to the surveillance programs and to promote privacy technologies as a way to mitigate against mass surveillance, for example, ‘encryption makes bulk surveillance too expensive’ (Cassidy, 2014). Four main recurring arguments confirm the prominence of neoliberal economics as the register through which to discuss surveillance programs and to select appropriate technical counter-measures. The first simply claims that mass surveillance programs are ineffective in achieving their goals (Corrigan, 2015; Schneier, 2015). Despite the existence of these multi-billion dollar projects, it is argued, there is no evidence that the intelligence gathered has helped to prevent an imminent terrorist attack (Nakashima, 2014).

Second, by collecting information about everyone, technical experts posit that the resources of the agency are distributed on too many leads, the overwhelming majority of which are likely to be false positives. As Snowden puts it, ‘I believe investing in mass surveillance at the expense of traditional, proven methods can cost lives, and history has shown my concerns are justified’ (European Parliament, 2014). This is also in line with the ‘diminishing returns on surveillance’ theory, which states that ‘a great amount of surveillance is produced for the first few units of intelligence budget invested, but less and less intelligence is produced as this budget is increased’ (Danezis and Wittneben, 2006)

The third argument asserts that encryption can reverse the trend of the decreasing costs of mass surveillance. If encryption is applied ‘everywhere’, then the intelligence agencies would no longer be able to scoop massive amounts of unprotected data. Rather, the maintaining of effective surveillance capabilities would then require intelligence agencies to spend greater resources on breaking encryption, asking for the information from service providers directly through a legal process, or by knocking on a target’s door. As Bruce Schneier puts it,

The NSA and others do mass surveillance because it’s easier than targeting. Initiatives like Reset the Net force governments into targeted surveillance. That’s how we win. (Reset the Net, 2014)

Thus, if by raising the costs the government can be brought to abstain from indiscriminate surveillance, they will be forced to go back to ‘surveillance founded upon individualized suspicion’, which is seen as a practice ‘above reproach’ (European Parliament, 2014). Even better, the fourth argument goes, intelligence agencies will be forced to switch from passive to active attacks, for instance through exploiting vulnerabilities in systems, which are easier for targets to detect. By virtue of their cost and visibility, active attacks will further dampen attempts at indiscriminate surveillance. For these reasons, they are regarded as preferable to passive (and stealthy) mass surveillance (Dam and Lin, 1996).

The dominance of economic arguments among the technical community does not come as a surprise. Security researchers who study cryptography have traditionally evaluated the strength of proposed schemes based on the time and resources it would take an adversary to break the scheme. But taken outside of their disciplinary boundaries, these economic arguments fall short of addressing what is politically at stake with the surveillance programs, and what would count as appropriate counter-surveillance strategies.

Strikingly, by focusing on economics and technical design, technical experts avoid taking a clear position on the national security systems they are seeking to effectively counter. For example, the economic arguments that intelligence agencies are inefficient and that there is a diminishing return on surveillance may be intended as strategic rhetoric, but they also implicitly position counter-surveillance advocates as concerned with the efficiency of national security projects. It is unclear to us whether this vague positioning is preferred because it allows computer scientists and security engineers to appeal to the national security establishment or because it allows for pluralism in matters of national security among their ranks. According to its proponents, the economic arguments ‘aspire to bring rationality’ into the counter-surveillance discussion (Anderson, 2014). However, they also provide space for political maneuvering which requires further deliberation given computer scientists’ and security researchers’ increased entanglement with national security projects through ‘cybersecurity research funding’ (Slye, 2013).

Security researchers were most vocal about the reported NSA’s weakening of encryption standards vetted by the US national standards body National Institute of Standards and Technology (NIST) and spoke against the secret corruption of the ‘crypto-infrastructure’ that underlies many computer security projects. These researchers, typically members of an international research community, argued that availability of strong crypto to the masses and industry is not at odds with, but rather part and parcel of, a national agenda. Researchers in the United States published a statement condemning both mass surveillance and the weakening of computer security; the latter was framed as a threat to the national economy:

[Our country] must give intelligence and law-enforcement authorities the means to pursue terrorists and criminals, but we can do so without fundamentally undermining the security that enables commerce, entertainment, personal communication, and other aspects of 21st-century life. (Open Letter from US Researchers in Cryptography and Information Security, 2014)

Their UK counterparts focused on how the weakening of computer security was a threat to national security itself:

By weakening all our security so that [our governments] can listen in to the communications of our enemies, they also weaken our security against our potential enemies. (Open Letter from UK Security Researchers, 2013)

Especially, the letter of the UK researchers surfaces the double bind that these researchers find themselves in. They are expected to serve as gatekeepers in national security, such as is evident in the recently redefined cybersecurity programs (HM Government, 2014). At the same time, the integrity of their practice is threatened through the weakening of computer security to serve the ends of intelligence gathering. These researchers could have used this opportunity to also condemn the way in which their scientific practices are increasingly folded into national security projects through cybersecurity programs. However, the distinction between computer (or information) security and cybersecurity is not always self-evident and is blurred in both statements. Both computer security and cybersecurity are concerned with protecting technical systems from attacks. However, cybersecurity, when defined through the lens of national security, comes with a license to break from normal democratic procedure and with steep funding for national security programs (Nissenbaum, 2005). The question is then whether there is space for those within this funding regime to express discontent beyond the protection of the integrity of their disciplinary practice, and to resist being integrated into national security projects.

Depoliticization and re-politicization

Policy debates on government surveillance and encryption initiatives are marked by an underlying drive to depoliticize. Wendy Brown describes depoliticization as involving the construing of ‘inequality, subordination, marginalization, and social conflict, which all require political analysis and political solutions, as personal and individual, on the one hand, or as natural, religious, or cultural on the other’ (Brown, 2006: 15). It is both a mode of disavowing the constitutive histories and powers that organize a political issue such as surveillance as well as a way of substituting ‘emotional and personal vocabularies for political ones in formulating solutions to political problems’. Depoliticization is linked to the ‘diffusion of market rationality across the political and social spheres precipitated by the ascendancy of neoliberalism’ (Brown, 2006: 16–17).

The ultimately artificial separation of industry surveillance from government surveillance reflects neoliberalism’s purported separation of the economic and political spheres, the former assumed to be the realm of ‘natural’ market forces, the latter a realm of politics per se. The consequent depoliticization of industry surveillance leads to its being discussed simply in terms of individual consumer preference. Privacy advocate Chris Soghoian captures this thinking in his comment that ‘It would be fairer if there was a situation where consumers could choose privacy’ (Roberts, 2012). Thus, consumer cryptography can be posed as a solution to state surveillance by trading on the neoliberal valorization of market solutions for political problems. But turning privacy into a marketable commodity creates new power relationships centered upon tech corporations and renders privacy a privilege for those who can afford it.

While the Snowden revelations have clearly been disastrous for the reputations of major tech corporations, the emphasis on the technical aspects of the surveillance problem may have made the situation more manageable for them. Deployment of encrypted services can now serve as the basis of public relations campaigns. The idea that solutions for societal problems can come from technical progress and sophistication in the private sector is the bread and butter of Silicon Valley corporations. The fact that most of the solutions deployed by industry merely reshape industry interactions with government agencies is left unaddressed (Van Hoboken and Rubinstein, 2014). Unsurprisingly, in light of the above, the political and legal reforms to ensure otherwise have simply not been realized. While industry and government officials in the United States publicly fight about surveillance and counter-surveillance measures, they all seem to agree on the need to ensure continued US dominance in foreign tech markets for economic as well as national security reasons.

Finally, situating the solution in a shift from mass surveillance to targeted surveillance assumes a liberal subject (usually coded as White, male, and middle class) who is seen as possessing ‘privacy’ as an abstract individual right. This camouflages the norms and social relations – such as those pertaining to race and class – that shape surveillance in its modes of practice and legitimization. The suspicion-based surveillance that most liberal privacy advocates argue for can itself be the basis for the racialized criminalization of communities but to understand how that happens requires paying attention to the very specific ways that racialized groups are impacted by state surveillance.

It is no coincidence that the revelations that have received the least attention in the United States are precisely those which point toward the targeted surveillance of Arabs, Muslims, and anyone suspected of being Muslim. In July 2014, Greenwald and Hussain published an article that identified specific targets of NSA surveillance and showed how individuals were being placed under surveillance based on their political activities as suspicious. All of those named as targets were prominent Muslim Americans (Greenwald and Hussain, 2014). It was later revealed by Intercept that the number of people on the National Counterterrorism Center’s no-fly list had increased 10-fold to 47,000 under the Obama administration. Classified yet leaked documents also showed that the Center maintains a fast growing database of a million terrorism suspects worldwide, increasingly including biometric data. This database includes 20,800 persons within the United States, who are disproportionately concentrated in Dearborn, Michigan, with its significant Arab American population (Scahill and Devereaux, 2014). Neither of these stories circulated very widely in the legal and tech privacy advocacy worlds because they did not fit the paradigm of a Big Brother government conducting mass surveillance on ‘ordinary Americans’.

Despite its political shortcomings, the counter-surveillance response helped marshal some to the streets and many to their keyboards. But few of these initiatives have focused on building solidarity with those communities and countries that suffer the violence of these surveillance programs. For example, since the revelations, little has been done to reach out to campaigns in California, or in New York City, where communities are organizing against police surveillance (Craun, 2014; Stop LAPD Spying Coalition, 2014; Sulahry, 2014), or to communities in Pakistan, Afghanistan, Yemen, or Kurdistan that are subject to massive amounts of surveillance and linked violence. If the problem is defined only in terms of a loss of privacy due to mass surveillance, then encryption would indeed be a possible universal solution and community-based political campaigns would be peripheral. But how the problem is defined already involves assumptions about whose experiences of surveillance are to be addressed and whose ignored, and whether it seems possible to ‘design away’ the problem or whether a broader political critique is called for.

Countering the systems of digital surveillance that governments have developed is an urgent political project. Yet any such project has to begin from an analysis of the political uses to which such surveillance is put: the maintenance of a neoliberal empire, structured by racial, gender, and economic inequalities. Such an analysis cannot be produced within the disciplinary boundaries of technical and legal discourses. Yet, the prevailing tendency since Snowden’s revelations has been to limit the range of possible solutions and appropriate discussion to narrowly defined techno-legal parameters, while referring to the popular, but in this case flawed imagery of Big Brother-style mass surveillance. Unfortunately, the legal and technical spheres cannot contribute to the deeply political challenge prompted by Snowden’s revelations without themselves undergoing a thorough politicization. That politicization might begin with a sense of modesty with regard to suggested counter-surveillance ‘fixes’ but ought also to enable the institutional resources of academic disciplines to be deployed to create a much broader discussion. When contributing to the challenge at hand, legal scholars need to be open to the problem of systemic failure of the legal system and the limitations imposed by a recurring methodological nationalism. Tech scholars need to recognize that their counter-surveillance initiatives will only be meaningful if rooted in a design process shared with those whose lives are supposed to be improved by the deployment of counter-surveillance technologies. ‘Baking encryption into internet standards’ is an interesting starting point, as it can avoid privacy technologies being a luxury of the privileged. Yet, even then, hard questions remain. For instance, given that expertise in cryptography is concentrated in centers of power, would existing knowledge dependencies be exacerbated with proposed new encryption standards? Those disproportionately subject to surveillance need to be able to co-define the nature of the problem as well as appropriate technical and non-technical responses. More than ever, in order to remain a potential site of democracy and justice, the global technological infrastructure needs to be subject to public examination and critique to avoid reproducing the legitimating assumptions of national security projects.

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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