There’s the how and there’s the against whom

TW: PRISM, government surveillance, drone strikes

The Ed Bott Report beat me to the punch on how (among other developments in the PRISM scandal) The Guardian’s Glenn Greenwald and various Washington Post reporters have started surreptitiously qualifying their statements on the basic functions of the extensive and arguably unconstitutional information-gathering network. In a nutshell, most electronic surveillance requires information to come directly from a particular company, which the government cannot access without their knowledge or even cooperation (although, under those conditions, they do share significant amounts of information). PRISM has been used to supplement that data with what the NSA can pick up directly on their own, but under similar legal restrictions (namely the requirement of a warrant or court order).

Admittedly, I’m a bit skeptical of Bott’s conclusion that these data-amassing companies are privacy’s plucky canary in the internet coalmine, but his analysis of the shifting reporting on what programs are key to surveillance and how they operate is much less ideological and seems rooted in factual analysis.

(Image from one recent anti-PRISM protest, where the protester’s sign reads: “Hands off my meta-data”. From here.)

The legal system that surrounds the surveillance mechanisms that Snowden helped maintain was something that he appears to have remained ignorant of, like too many US citizens, since its failures are pivotal to understanding the risks and problems with PRISM. There’s a real missed opportunity in that, given how its already shaped how Snowden, and consequently Greenwald, and as a result many civil libertarians. In the second video of Greenwald’s interview with Snowden, which was released this week, Snowden opened with a frankly bizarre statement (in response to what response he anticipated from the US government): “That argument [that his leak aided and abetted enemies of the United States] can be made against anybody who reveals information that points out mass surveillance systems, because fundamentally they apply equally to ourselves [presumably meaning US citizens] as they do our enemies [presumably non-citizens].”

Actually, much like the legal standards of what’s cruel and unusual punishment and what’s a public and speedy trial, this entire debate is informed by radically different attitudes and procedures towards US citizens and non-citizens. This implied fear that that distinction is eroding at this point seems fundamentally central to the modern civil libertarian movement. From Rand Paul’s filibuster to Snowden’s analysis, lots of White men with US passports seem to be worried that drone strikes and excessive surveillance could become their reality in spite of their citizenship (and not, you’ll notice, their humanity – this is about the rights of citizens not all people).

The fact that the biggest threats are to those without US citizenship (or, complicating the issue, people of color who are presumed to lack US citizenship) is essentially missing from that political movement’s consciousness and specifically the picture that Snowden painted of US-run surveillance. Court orders and warrants to take the information of US citizens and non-citizens alike generally flow through the FISC (Foreign Intelligence Surveillance Court), which has frankly terrifying legal standards, but that’s not the only information that that unique court system handles. As the Washington Post reported, it was a member of the FISC who ruled that the Obama administration could keep a secret list of non-citizens it wanted killed. The same system is indeed spying on us all, but under court orders which view secret murder as a fair use of information gathered of non-citizens. In only one case, for this moment, have standards remotely akin to that been applied to a US citizen.

The system is predicated on a political distinction, which civil libertarians seem loath to acknowledge.

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One thought on “There’s the how and there’s the against whom

  1. […] their concern is for US citizens who are under “suspicionless surveillance”. I’ve written before about the frequency with which non-citizens of the US are left out of discussing the US […]

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