Why we should not trust the US government on digital surveillance – yet

Trop d’incertitudes, d’approximations et de contre-vérités pèsent sur les explications du programme Prism (surveillance des communications par Internet et réseaux sociaux) pour qu’on puisse les croire, écrit Teun van Dongen , dans un commentaire pour Aspenia, le site de l’Institut Aspen Italie.

Anyone who has been trying to keep up with the news and debates about the US digital surveillance programs feels a bit like a moviegoer perplexed by a complex plot. Unfortunately, instead of a sonorous baritone who solemnly and authoritatively tells us what is going on as in some movies, we get an ever-growing spaghetti bowl of contradictory facts, half-facts, opinions, arcane expert judgments, unverifiable pieces of inside information. In general, one should be careful about passing judgment on issues without fully understanding them, but in this case, the obscurity itself is reason enough to be highly critical.

The first point where the murkiness is ground for criticism is the substantiation of the claims that the PRISM program and phone surveillance have been instrumental in the disruption of terrorist plots – as many as 50 of them. The US National Security Agency (NSA) has so far given four concrete examples of attacks that have been foiled with the help of the digital surveillance programs. When confronted with credible claims that these plots were more likely detected by old-school intelligence methods, the NSA failed to come up with a response that was more than a mere reiteration of the claims. Furthermore, in one of the four cases, a plan for an attack against the New York Stock Exchange, the suspected perpetrators were released without charge.

It is possible that these happen to be the four least convincing of the 50 cases, but given what we know about the current terrorist threat, it is hard to believe that digital surveillance played a significant role in the other 46 plots. Many jihadist terrorist attacks are planned and carried out by small groups of operatives that are part of the same social circle and that live in the same neighborhoods, sometimes even in the same houses. Such cells do most of the planning and preparation of their attacks during face to face meetings, so they are unlikely to be picked up by digital surveillance. It is difficult to be absolutely sure about this, but the Tsarnaev brothers probably did not discuss much of the planning of the Boston bombings online. Furthermore, the preference for real-life contacts is not merely a matter of convenience, but also of operational security. Some jihadist cells are known to have stayed away from ICT to avoid leaving digital traces.

The credibility of assertions about the effectiveness of the programs is undermined further by the strong growth in the number of attacks that the NSA supposedly foiled by sifting through endless amounts of digital data. When the news broke, House Intelligence Committee chairman Mike Rogers claimed that one terrorist attack had been prevented. Around the same time, the head of the Senate Intelligence Committee, Dianne Feinstein, spoke of several attacks. Then, NSA chief Keith Alexander drew the number up to “dozens”, only to one-up himself later by claiming that 50 attacks had been prevented. And this may not be the final score.

Instead of making a clear case for PRISM and other forms of digital surveillance, congressmen, senators and NSA staff leave us in the dark about when and how data crunching has prevented terrorist attacks. Put less generously, they are simply juggling numbers and cases around in a feeble attempt to convince the outside world that the NSA is fighting the good fight. But in doing so, they not only fail to convince, but they also show that the people who should know are either confused or lying about what the digital surveillance programs actually entail.

In response to the news about the collection of phone records, President Obama assured the public that “[n]obody’s listening to your telephone calls”. Congressmen Jerrold Nadler, on the other hand, relayed that he had been told during a briefing that intelligence officials can listen to the content of phone calls without any legal authorization. Another inconsistency concerns the way PRISM data is used after being collected. Senator Lindsey Graham explained that the data is searched using profiles made up of behaviors that are thought to be associated with the planning of a terrorist attack, such as making phone calls to Yemen. Intelligence officials then claimed that this is not how they work, after which Graham withdrew his statement and said he had misspoken. As for the intelligence sharing with other countries, Dutch Interior Minister Ronald Plasterk said that the AIVD, the Dutch intelligence and security service, does not have access to PRISM data. An anonymous AIVD official, however, claimed that he and his colleagues simply have to file requests to the NSA to get access to the contents of any e-mail account. Again, all this can mean two things : either we are being lied to, or there is a difference between what intelligence agencies are doing and politicians’ perception of what intelligence agencies are doing. In both cases, the potential for misuse is enormous.

Proponents of the digital surveillance programs have rightfully pointed out that there are as yet no known cases of misuse of PRISM data. It is worth remembering, however, that all of our e-mails and phone records are ultimately in the hands of a president whose record on human and civil rights is far from perfect and now highly controversial. Presumably to the disappointment of the committee that granted him the Nobel Peace Prize, Obama presided over a drone campaign that killed scores of innocent Pakistani civilians as well as Anwar al-Awlaki, a US citizen who by any legal standard should have been brought to trial. Also, Obama has yet to live up to his promise to shut down Guantanamo Bay, that symbol of the heavy-handedness and disregard for the rule of law that characterized the presidency of George W. Bush.

Summing up, we can only guess whether and how the programs are effective and if the way they function is misunderstood or concealed by politicians. In addition, they are carried out under the aegis of – and presumably closely monitored by – an administration with a poor civil rights record. We would be ill-advised to blindly trust Obama and other officials and representatives who jumped to the defense of the digital surveillance programs. We should argue for the abandonment of such practices, at least until a full and coherent account of facts and procedures gives us reason to do otherwise.