Edward Snowden’s revelation that the US government was spying on millions of communications between civilians sent shock waves through Silicon Valley. Major technology companies that had often been complicit in the surveillance program, such as Facebook, Google, and Apple realized the full extent of government spying and faced public outcry over the lack of user privacy. They responded swiftly with heightened security measures; now, the Apple iPhone’s iMessage and Facetime, Facebook’s Messenger and WhatsApp, and Google’s Gmail, among other apps and services in the tech industry, use end-to-end encryption. In essence, end-to-end encryption ensures that companies are not able to break the encryption on their own users’ messages. Only the sender and recipient — the two “end” points of the information transaction — have the “key” to decipher a message.

If the NSA knocks on Yahoo!’s door requesting information with the threat of a $250,000 per day fine for noncompliance, as the NSA did last year, Yahoo! doesn’t even need to refuse. They can respond, correctly, that they simply don’t have the information. This new security method has made government surveillance more difficult, although certainly not impossible (formal requests for user information are hardly the only means of intelligence-gathering) and has affirmed company user privacy agreements. However, end-to-end encryption faces firm opposition from federal agencies and the threat of legislative regulation.

In November, UK Home Secretary Theresa May announced the Snoopers Charter, a proposed draft of the Investigatory Power Bill, which aims to update existing information communication regulations in light of new technologies. For months, many in the tech industry feared an outright ban of end-to-end encryption in the bill. The final piece of legislation is more nuanced, but serves the same ends of opening user information up to government access. Section 189 of the Snoopers Charter declares the Secretary of State may issue orders to companies “relating to the removal of electronic protection applied…to any communication or data.” In effect, the government would be able to order tech companies to remove end-to-end encryption or, more likely, ask Facebook, Google, or Apple to reengineer end-to-end encryption to provide a “back-door” for government intelligence agency access.

Currently, there are no similar proposals on this side of the Atlantic, but the US federal government has voiced similar opposition to end-to-end encryption. FBI Director James Cromey and Deputy Attorney General Sally Ouillian Yates recently testified to the Congress on this very issue. Cromey provided the amusing description of end-to-end encrypted messages intercepted by the government as “gobbledygook.” Yates spoke more firmly on the issue. A mandate on companies using end-to-end encryption “may ultimately be necessary,” she said. Noting that critics of the Snoopers Charter and policies like it often assert that engineering a “backdoor” is not possible, Yates responded, “Maybe no one will be creative enough [to solve the problem] unless you force them to.”

Efforts to pass regulations in response to new security technology could, however, run into legal and constitutional roadblocks. End-to-end encryption may be defended under the Fourth Amendment right to privacy against unreasonable search, as wiretapping often occurs without proper warrants on civilians who are not suspected of being involved in criminal activity.

Efforts to pass regulations in response to new security technology could, however, run into legal and constitutional roadblocks. End-to-end encryption may be defended under the Fourth Amendment right to privacy against unreasonable search, as wiretapping often occurs without proper warrants on civilians who are not suspected of being involved in criminal activity. A 2013 Supreme Court case on this grounds was dismissed, but simply because the plaintiffs could not prove they had been wiretapped. End-to-end encryption puts barriers on mass government surveillance and, therefore, may be defended as a means of ensuring Fourth Amendment privacy.

Issues of government-enforced decryption may also jeopardize Fifth Amendment protection against self-incrimination. With end-to-end encryption in effect and companies unable to comply with law enforcement orders, there have been requests in criminal cases that the accused decrypt their own phones, computers, or individual files for evidence gathering or be held in contempt of court for “obstruction of justice.” The question of whether decryption is a form of self-incrimination has yet to be decided definitively. Cases on the subject have vacillated back and forth on the issue. Jason Grimmelmann, a University of Maryland Law School Professor, has said the decision comes down to whether police have a justifiable reason to demand decryption, “If the police don’t know what they’re going to find inside,” he says, “they can’t make you unlock it.” Mass surveillance can similarly be cast as a blind search for incriminating evidence at the expense of users’ Fifth Amendment rights.

Proponents and apologists of government surveillance often assert that these rights to privacy are superseded by the indefinable and malleable concept of the state’s compelling interests, including national security and public safety. On these terms the debate can devolve into an argument of values in which little ground is gained by either side. Perhaps, a more compelling argument against end-to-end encryption regulation is that it’s bad policy, and that it stands against the state’s compelling interests.

As previously mentioned, in response to government requests for a “backdoor” into encrypted user information, technologists and technology companies have responded that it’s not possible without severely comprising the overall security of end-to-end encryption. One analogy that’s been used in this argument is that “there’s no way to outfit a safe with a backdoor that only the FBI can open.”

The wave of tech companies employing end-to-end encryption is not solely a response to the Edward Snowden leak. It can also be read as a general response to the state of cyber security, in other words, the dire state of cyber security, in which hacks have become “when” rather than“if” questions. This is not the time for the government to be mandating that companies scale back their security measures.

If we are considering the compelling interests of public safety, the threat of cybersecurity fraud and theft is mounting and should be prioritized by the federal government, not purposely exacerbated by requiring major tech companies to collect massive stockpiles of data whose security has been deliberately compromised. And certainly, after reflecting on this summer’s OPM breach, in which the social security numbers of over 22 million federal workers were stolen, federal agencies are hardly on firm footing when demanding major alterations to Silicon Valley’s cybersecurity infrastructure.

On October 29, the European Parliament voted on a resolution encouraging member states to offer asylum to Edward Snowden, the former government contractor who leaked classified information about the United States’  NSA surveillance program two years ago. The resolution also officially recognized Snowden as a “human rights defender.” The decision is nonbinding, but it stands as a forceful encouragement for European countries to offer Snowden asylum and protection.

Although the resolution is mostly symbolic, it reflects a massive shift in how government surveillance programs are evaluated by the European public and illuminates the changing face of relations between the United States and Europe. As a greater amount information on these programs has been made accessible, public opposition to the programs has grown. The EU parliament’s vote mirrors this collective change in view.

The altered public opinion shows the radical difference between the current political environment and that which gave rise to the development of these government surveillance programs. In the months following the September 11 attacks, governments around the world revised their conception of national security and constructed far-reaching surveillance programs in response to the pressing fears of future terrorist attacks.

In the United States, efforts to prevent terrorism became the country’s primary foreign policy priority, one that arguably took precedent over the nation’s long commitment to civil liberties. Leaders struggled to devise a response to the attacks and to act in the best interest of protecting the country.

In the past 14 years, although the face of terrorism has evolved, the threat of attacks remains present. The development of international terrorist organizations like ISIL continues to make national security a subject of primary concern for the United States and for countries around the world. Never is this fear more present than it is now, as France is still reeling from the terror attacks that took place within its borders on November 14.

Accordingly, the United States and its European allies continue to grapple with how to best devise an effective framework for protecting their national interests. The American NSA finds its counterparts in Germany’s Bundestag surveillance unit, France’s alleged Frenchelon, and the UK’s GCHQ surveillance unit. What’s more, Snowden’s leaked information exposed that these surveillance organizations have largely worked in tandem with the NSA. Coordination frees governments from domestic limits to surveillance in their own countries by spying on each other and then exchanging information. The NSA in particular is given more extensive leeway regarding intelligence-gathering on other countries and international organizations.

A Pew Research Center survey from 2014 shows that citizens in countries around the globe overwhelmingly find government surveillance of personal communications “unacceptable.”

Furthermore, it seems that in recent years, spying and surveillance conducted by Western governments has become more widespread. In October, Germany passed a new data retention law, expanding the ability of Internet and cellular providers to retain data. This past summer, France adopted a hugely controversial law that further enabled the government to pursue invasive surveillance methods, while Austria is in the process of evaluating new surveillance-related policy changes.  And the Obama administration – although committed to an overhaul – has recently restarted surveillance initiatives, still navigating its way to a new stance on the issue in the post-Snowden era.

So how does Snowden’s pardon by the EU parliament fit into this international landscape, one in which countries are as committed as ever to pursuing the very programs that Snowden sought to undermine?

First, the decision is undeniably legitimized by the fact that public opinion has been shifting away from support for these types of programs. In the wake of 9/11, national security might have provided enough grounds for the public to support these invasive measures; for many, however, government claims of national security no longer provide a tenable claim.

A Pew Research Center survey from 2014 shows that citizens in countries around the globe overwhelmingly find government surveillance of personal communications “unacceptable,” with 97 percent of Greek respondents, 88 percent of French respondents, 87 percent of German and Spanish respondents, and 70 percent of UK citizens polled holding this view. This  public context forms an environment in which the EU parliament has revised its stance to a more forgiving and even appraising position on Snowden and whistleblowers in general.

But discussing the merits or drawbacks of the parliament’s action does not present the full picture; EU members were motivated by more than just public support. There is a strong case to be made that the EU parliament’s pardoning  represented a diplomatic rebuke of the United States. By naming him a human rights activist, the EU has decisively challenged the United States and the Obama administration.

There has been no official statement from Obama on the decision, but in a response this summer to an online petition asking to pardon Snowden, the White House made its stance clear, stating  “He should come home to the United States and be judged by his peers – not hide behind the cover of an authoritarian regime.” It is evident that the administration’s position is in direct conflict with the EU parliament’s standing; this conflict suggests that the decision was intentionally defiant.

Why challenge the United States? One potential answer is that the EU wants to confront US hegemony, and this decision is part of a larger effort of resisting American power abroad. The chairman of the Workshop of Eurasian Ideas, Grigory Trofimchuk, has supported this interpretation. He argued in an interview with Radio Sputnik, “I think that Europe’s decision – is not simply a formal document, but the intentional act of defiance to Washington that goes against US policy on the Snowden issue…[Europe] gladly seized the opportunity to demonstrate its independence.”

In other words, perhaps more than a statement on surveillance, the EU parliament’s decision was largely an effort to capitalize on an opportunity to “demonstrate its independence.” Siding with Snowden allowed the EU to collectively cement its authority as distinctly separate from the United States’ influence. This interpretation would explain the apparent inconsistency of backing Snowden at a time when they are implementing policies that bolster their own surveillance programs.

Moreover, this challenge comes at a time when the United States has noticeably trailed behind European countries in its efforts to support the flow of refugees from Syria. Given that the United States often takes a prominent and leading role in the mitigation of international crises, it is significant that its presence has been weak in aiding the accommodation of Syrian refugees. Perhaps the EU parliament’s political move is a symbolic provocation, then, a signal to the United States. If the United States won’t step up, then the EU will act independently — its pardon of Snowden a symbolic gesture of that intention.

Ultimately, how this action by the EU parliament will influence US policy remains to be seen. With respect to Snowden, for the immediate future, not much will change practically. According to an interview with his attorney, Snowden will continue to live in Russia on his three-year residency permit and can only hope that the parliament’s decision will provide the impetus needed for European countries to take concrete action and offer him asylum.

We will also observe how the United States responds to this challenge to its authority in the international sphere. It remains to be seen whether the White House will directly confront the EU on this question of surveillance or whether it will act to reassert American authority on another front. In the wake of the major ISIL terror attacks worldwide, there is abundant opportunity for the United States to make moves on the world stage; Obama’s choices on policy and action will demonstrate to what extent the White House chooses to demonstrate its leadership.

Photo: Mike Mozart

Joel Simon is the executive director of the Committee to Protect Journalists, an independent nonprofit that provides assistance to journalists in dangerous situations around the globe.

Brown Political Review: News organizations have recently slashed budgets for foreign correspondents and have since taken on more freelancers. How are freelancers treated in comparison to full-time staffers with respect to safety, and what bearing does that have on journalists’ security?

Joel Simon: When I was a freelancer in Latin America in the ’80s, I never had a staff job. Some of the issues I hear about now were the same issues I heard about then. There was always a role for freelancers in journalism [because it] traffics in information. If you have information with news value, you can find someone who will take it. Freelancers always believed that they could go out there and track down information that others couldn’t. We never had the formal support of media institutions…That dynamic hasn’t really changed. So, what’s shifted? There are more freelancers on the front lines, and they’re covering things that are even more dangerous and deadly. When I was a freelancer in Central America, it wasn’t a walk in the park, but it was nothing like Syria [is today]; they’re just night and day. In some ways, these two dynamics are related. Technology has completely transformed the news business, but it’s also reduced the value of journalists themselves. It used to be that if you had information to disseminate, you had to do it through journalists. They had an information monopoly. That’s not the case any more. This makes all journalists, but particularly freelancers, even more vulnerable.

BPR: Do treaties like the Geneva Conventions, which define the rights of noncombatants in armed conflicts, have a demonstrable impact on the safety of journalists?

JS: The Geneva Conventions were written in the aftermath of World War II, when there was no notion of independent journalists operating in a battlefield environment. The journalists who covered WWII were largely integrated into the military forces that they were covering. One of the important protections the Conventions afford is that journalists are entitled to prisoner of war status. Then Vietnam came along, when the notion of independent war correspondents developed. Some journalists during the Vietnam War covered the conflict while integrated into the military, but more and more were operating independently, [which] gave them greater security to cover the conflict as civilians. When the [Geneva Convention] Additional Protocols were developed, they conferred on journalists the protections available to all civilians — meaning that they are not military targets, and unless they carry a gun, they can’t be targeted. Most journalists have to acknowledge that international humanitarian law is really, from a functional perspective, not even operative in most of these conflict environments, because they’re not fully respected. But I think that these journalists see themselves as civilians operating independently with the protection of the armed forces, so therefore they are entitled to the full range of protections available to civilians.

BPR: You wrote a letter to President Obama regarding the effects of NSA surveillance tactics on journalists, and you also signed an open letter to Iranian President Hassan Rouhani encouraging him to comply with the United Nations Special Procedures. How much of the effort of writing a letter to a head of state is an exercise in naming-and-shaming?

JS: Those examples are very far apart on the continuum. When we write to President Rouhani, we certainly hope for, but don’t expect, real engagement. He is trying to convince folks that there is real reform going on in Iran and that his government is trying to improve conditions for the media. In fact, conditions have not improved. If he’s trying to make those claims, we need to make sure he’s held accountable. With President Obama, there are very different considerations. The first is that surveillance is a real threat. Not in the same way that jailing or violence are, but among journalists around the world there’s awareness that it’s difficult and maybe increasingly impossible to communicate via modern methods while feeling safe that the communication is totally secure. It’s almost guaranteed that it’s being swept up by the NSA. Everyone is focused on this in a US context. But if you’re a Pakistani journalist interviewing militants in Pakistan —  and these are very sensitive stories — if the NSA knows you’re doing this and can get access to your electronic communications, they’re going to do it…In fact, if they weren’t doing it, they wouldn’t be doing their jobs. We think there has to be some awareness of the implications of these policies on the free flow of global information.

BPR: What impact did the beheadings of American journalists James Foley and Steven Sotloff by ISIS have on the journalistic community?

JS: The community of people who cover conflict is small and tight-knit. Many people knew Steven Sotloff, but he was a more reserved person. Jim Foley was extremely outgoing and knew everybody who had covered the Middle East in the past couple of years, so people felt personally devastated. There are a couple of things that have caused reflection within the industry: There has been discussion about freelancers, their role, their vulnerability, the kind of support they need and how we can provide that. Another thing that has been really tricky is how to cover these videos…With these ISIS videos, they’ve created an information black hole through their extraordinary violence. There’s almost no independent information coming out from the areas under their control, so they’ve created an environment where whatever information does come out is even more valuable. These ISIS videos are essentially news reports. It’s even creepier now that they have [British hostage] John Cantlie running around as a fake anchor. You have to acknowledge that the beheading of a US journalist is a newsworthy event, but the source of this information is the perpetrator of the violence. So how do you cover that and inform the public while not simply participating in their propaganda efforts?…We have to be very wary about relying on ISIS propaganda to tell these stories.

Standing before a packed audience in the Taubman Center for Public Policy, Timothy Edgar called this past summer a “crisis of confidence” for the National Security Administration (NSA). Edgar, a civil liberties and privacy lawyer who has worked in the past two U.S. presidential administrations, claimed that Edward Snowden’s betrayal of the U.S. intelligence community and his subsequent escape to Russia — the United States’ principal intelligence adversary — was not the biggest blow to the NSA’s confidence. Instead, the agency’s internal shock stems from the wide discrepancy between how the American public received Snowden’s actions and how the intelligence community perceived the same set of events. To the public, Snowden is certainly not the traitor that those within the system believe him to be. In some circles he has even been heralded as a national hero.

The traitor–hero divide is only further evidence that Snowden has ignited one of the most poignant aspects of Americans’ historical distrust of big government: the invasion of privacy. The recent revelation that the United States has spied on foreign heads of state and conducted industrial espionage in Mexico, Brazil, France, Germany and Spain has invited international fury, just as Snowden was exiting the world stage. As the Obama administration and the NSA scramble to fend off both domestic and international criticism, there has been surprisingly little discourse — even from Republicans, content to watch Obama flail — justifying these modes of espionage. Now seems the opportune time to question why the United States bears the brunt of the world’s criticism surrounding espionage tactics, even as many states, specifically those in Europe, spy on the United States to the best of their abilities. But even more essential, and absent, in this crisis of confidence is a public understanding of espionage’s crucial role in maintaining the stability that the international community has enjoyed for the past 70 years.

The massive U.S. intelligence operations of today began during World War II, subsequently found a comfortable niche in the Cold War and finally reached a peak with the War on Terror. Since Snowden’s revelations this summer, the global community appears to have forgotten that the United States has been spying on most of the world — or more accurately, the world has been spying on itself — for the greater part of the last century. They also forget that the past 70 years arguably have been the most stable in world history. Despite fears of nuclear proliferation during the Cold War and the rise of terrorism in the 21st century, these decades have seen the decline of interstate war and the lowest civilian death toll ever. The United States has remained the dominant superpower in the world order throughout this turbulent period, and it has engaged in both international and domestic espionage at unprecedented levels, not by coincidence. Certainly, increased spying isn’t the only, or even the most important, contributing factor to a stable world order. Other post-World War II institutions — the United Nations, the World Bank and the International Monetary Fund — are often rightly credited with facilitating world peace and prosperity. We have also experienced a proliferation of democratic governments. While these factors are certainly pivotal to international cooperation, espionage’s role in promoting international stability is often overlooked. When it is referenced, it’s either underemphasized or excessively vilified.

In order to produce any kind of lasting change, the negotiations that occur within institutions such as the UN must maintain a considerable degree of transparency. This openness helps to eliminate misperceptions and avoid misguided policies like isolationism or appeasement. In the absence of transparency, as international relations theorist Robert Keohane explains, “States are uncertain about what their partners and rivals value at a given time. They naturally respond to uncertainty by being less willing to enter into agreements.” Simply put, without transparent dialogue, states are less likely to compromise and more likely to go to war. In an anarchical international system, governments can never truly know their allies’ interests or intentions, and most importantly, how long they will remain loyal. Espionage, then, forces a degree of transparency that allows leaders to anticipate the actions of allies and foes alike. As former Assistant Secretary of Homeland Security Stewart Baker noted, the United States “can’t stop gathering intelligence without running the risk of terrible surprises.” Historically unpredictable developments — the invasion of the Sudetenland, Austria and Poland by Nazi Germany, for instance — have resulted in total war. In retrospect, if states had been more aware of each other’s intentions, they may have been able to take the necessary precautions in order to stabilize the situation.

There is little evidence to suggest that this transparency must be voluntary to be effective; gathering information on Germany’s intentions through espionage would have been no different from the country blatantly stating its intentions. Admittedly, the intelligence community’s perceptions of another nation’s foreign policy certainly aren’t foolproof. But even if spy agencies are not able to provide absolute assurances, the information they collect can shed light on a state’s intentions. Throughout the past 70 years, intelligence agencies have allowed states to keep tabs on potential changes in policies and alliances, and to take action in time to allow for swift diplomacy or limited, stabilizing military action. So what explains the international and domestic backlash against U.S. espionage efforts now?

The anti-NSA mentality is partially predicated on the false assumption that “victimized” countries do not gather intelligence themselves. Last month, European media outlets and diplomats discovered that the United States had collected data on heads of state, and they reported the story with an air of surprise and utter disgust. The German weekly news magazine Der Spiegel reported that “the espionage attack on the EU is … a surprise for most European diplomats, who until now assumed that they maintained friendly ties to the U.S. government.” Intelligence officers tell a different story. As Bernard Squarcini, former head of France’s Directorate of Territorial Surveillance, explained bluntly, “I am amazed by such disconcerting naïveté. You’d almost think our politicians don’t bother to read the reports they get from the intelligence services. The French intelligence services know full well that all countries, whether or not they are allies in the fight against terrorism, spy on each other all the time.” France “is the evil empire in stealing technology,” said a German businessman quoted in documents posted by Wikileaks. “The total damage [it does] to the German economy is greater than that inflicted by China or Russia. And Germany… is France’s closest and most trusted friend.”

Europe’s indignant response could reflect the disparity between relatively insignificant European espionage and the United States’ enormous information-gathering capabilities. Germany’s post-WWII pacifist stance has resulted in “an underdeveloped geo-political mindset,” says Jen Techau, director for the European policy forum Carnegie Europe. The result leaves much to be desired in Germany’s intelligence operations. While Techau’s claims may be true, it seems unrealistic, given Germany’s decades-long aversion to domestic surveillance, that intelligence services could be ramped up significantly, at least in public. By conveying outrage over U.S. espionage, Germany is echoing the sentiments of its people. Meanwhile, the government is attempting to strategically pressure the U.S. government into an espionage agreement that would benefit Germany, providing them with the intelligence they themselves lack the political latitude to collect. While Germany likely does not hold enough leverage over the United States to enact the strict espionage treaty it desires, the country utilized media hype in order to get to the negotiating table with American senior intelligence officials this month, which is more than they have been able to achieve in the past. Whether countries like Germany and France succeed in pressuring the United States into treaties that ban spying between allies and encourage intelligence sharing is beyond the point. Their vain attempts at exploiting espionage scandals illustrate their desire to capitalize on the high volume of U.S. intelligence, which they cannot come close to matching. In effect, the German government is using the United States as a scapegoat in order to manipulate domestic sentiment — purporting to protect the interests of the people while pressing for a favorable data gathering agreement.

Germany could be forgiven for its tenacity. Pressuring the United States into an agreement would help Western allies identify common problems and build trust. France and Germany are both eager to join the elite “Five Eyes,” a spying alliance consisting of Australia, Canada, Great Britain, New Zealand and the United States. This inner circle of allies has historically remained transparent with one another without the need for mutual espionage. By joining this club, France and Germany would simultaneously ensure access to the largest intelligence bank in the world while keeping their leaders and industry safe from surveillance. In order to enter into such an agreement, the United States, Germany and France would have to establish an extensive culture of transparency with one another, just as the Five Eyes countries have already done. But such a relationship has a long way to go before coming to fruition, and the United States is hesitant to forego the ability to continue spying on these two allies.

Nevertheless, the U.S. government continues to get the short end of the stick: not only the international community, but also the American people, have met the news of surveiling foreign dignitaries with shock. The public discord sparked by the Snowden affair has resulted in the greatest “crisis of confidence” that the American security complex has possibly ever had to deal with.

At the heart of the outrage is the inability of the law to keep up with the rapid advances in intelligence gathering technologies. The 1960s witnessed grave abuses by intelligence agencies — the Martin Luther King Jr. wiretaps, J. Edgar Hoover’s virtual dictatorship of the FBI — because legal norms had yet to address the technology of the time, and relatively little oversight existed over the intelligence community. This changed during the 1970s, the sole effective period of reform in the history of U.S. intelligence practices. During this period, the Foreign Intelligence Surveillance Act (FISA) was passed, which established the FISA court — effectively a Congressional oversight committee with the purpose of approving all domestic wiretaps. This period also birthed a new branch of law surrounding civil liberties and privacy. As law caught up with surveillance technologies, abuses waned and accountability became the norm.

This legacy changed with the terrorist attacks of September 11, aggressively warping the previously delicate balance between security and liberty. In the name of national security, the George W. Bush administration harnessed never-before-seen technological capabilities (the mass collection of data, the stockpiling of information from social media sites) to conduct warrantless wiretapping on an unprecedented scale.  Eventually these practices were institutionalized with the Bush-era FISA amendments that, as Timothy Edgar sees it, transformed FISA “from a shield to protect our liberties into a sword for the protection of programs.” The government’s enormous gathering of information went largely unchallenged, continuing into the Obama administration up until this year’s NSA debacle.

It’s clear the American public has become increasingly wary about the effects of the intelligence complex’s intrusion into every day life. Whistleblowers such as Snowden may be the ultimate embodiment of public discomfort with the fact that woefully under-equipped oversight laws are cyclically outpaced by surveillance technology. By virtue of the countless threats it faces, the United States has good reason to continue collecting intelligence, and mass data analysis- — though not necessarily collection — is an effective way to do this. According to NSA Director Keith Alexander, 54 terrorist attacks have been stopped thanks to the mass data collection allowed by the amendments to FISA and the larger scope of electronic surveillance, a dozen of which would have struck on the U.S. mainland. Technology, in other words, is serving a valuable purpose: it’s the law that must now play quick catch up with technology to ensure not only the protection of privacy, but also the protection of sensitive, classified information.

Back in Taubman, Edgar laid out a three-pronged plan for ensuring that our system of checks and balances is reinvigorated. The first step is to increase the transparency of the intelligence system. Spying is inherently secretive, but subjecting information about FISA’s decision-making process to public review would increase accountability and reduce incentives for people like Snowden to leak classified information. Such measures could include the release of FISA opinions, which would give citizens access to the justifications for widespread data collection. A better-informed public is less likely to be surprised by government actions, and is more likely to channel its objections through democratic pathways to instigate reform, hopefully reducing the need for whistleblowers. The second step would involve strengthening checks and balances, primarily by changing the system through which judges are appointed. Today, the Chief Justice of the Supreme Court selects all FISA judges,  which limits candidates’ political diversity.

The third step involves scrutinizing the type and scope of technology used to collect intelligence. No matter what intelligence spokespersons say, bulk data collection is not necessary to achieve the same results that the NSA currently attains, and analysis of large volumes of data is possible without storing it long-term. The use of cryptographic techniques, for example, would achieve the same ends without the violation of privacy incurred through the storage of data. U.S. intelligence agencies could analyze data by searching for key words and other specifics without revealing content or storing the datum unless it were flagged. Moving toward cryptographic methods of analysis and eliminating data stockpiling would also lessen the need for security subcontractors, like Snowden, who perhaps pose the largest threat to intelligence security in their positions as for-profit handlers of valuable government information. Most importantly, lawyers and technologists must stop talking past each other, so that surveillance methods and policy can meet. Until the public is informed to the fullest extent possible about the intelligence community’s procedures, the United States will face international and domestic criticism.

The U.S. intelligence complex has undergone cycles of abuse and reform before. With that historical progression in mind, it seems clear that the post-9/11 intelligence era is coming to an end. This year has proven a fatal blow to U.S. intelligence organizations, first with domestic backlash and now international pressure and disdain, resulting in a crisis of confidence between the American people and the national security complex. The crisis, however, provides us with an unmistakable opportunity to analyze the role of espionage in the international system, and the motivations behind international actors who too often get away with unvarnished hypocrisy in condemning American intelligence practices. Just as it’s time to reform the system of checks and balances on domestic espionage, it is also time to accept that espionage might have a lawful place in our world. Global transparency and stability may depend on it.

 

It’s not often we get to feel sorry for an elected politician. Government shutdown here, Weinergate there, a Parliamentary expenses scandal across the Pond thrown in for good measure — pity for politicos is rare and unthinkable enough as to acquire a unicorn-like novelty during this time of political apathy and disappointment in government. Yet, British politician Andrew Mitchell has given us such an opportunity, to feel that an elected public figure has been treated harshly. Moreover, the perpetrator in his case isn’t an impatient and exasperated public but, surprisingly, another arm of the state.

Roughly a year ago, Mitchell, who at the time was Conservative Chief Whip in the House of Commons, stood accused of spewing a classist slur at a policeman during an altercation that took place outside Downing Street, the prime ministerial residence. It was a narrative that was all too easy to accept; a politician from a party already perceived as out of touch had let himself go and voiced the kind of vitriol that the cynics among us might have suspected was already on his mind. The story seemed to gain even more credence when police investigators proclaimed that he was being uncooperative with their inquiry and called for his resignation. It was a wish that he fulfilled not many days later.

Fast-forward a year and circumstances are rather different. The evidence has fallen apart on a number of measures and today the story is not Mr. Mitchell’s transgressions but rather those of the police. The timing of the incident — amidst talk of extensive reforms, including elements of privatization and performance incentives being administered to the police force — politicizes the event and invites speculation about ulterior motives on the their behalf.

While no doubt slightly fantastical, as there are better ways to stymie reform than to tar high-ranking government officials with the brush of classism, it is thought provoking. While much of our ire for political grievances — and in many cases rightfully so — is directed at the elected elements of government, it’s of paramount importance that we also not lose sight of the parts that do not stand behind podiums and beseech us to vote for them again every few years. Not because they’d feel neglected, but because the permanence of agencies and bureaucracies, not subject to the change mechanism that is electoral politics, allows those bodies a degree of autonomy that can be quite harmful.

This kind of harm can and indeed does go beyond the stereotypical inefficiencies best skewered by Parkinson’s Law (“work expands so as to accommodate the number of bureaucrats available for its completion”) and most epitomized by the embarrassing shortcomings in the recently launched healthcare.gov. For example, the recent revelations that the NSA was spying on the leaders of other countries without the knowledge or permission of the President or his staff is a highly salient example of agency overreach. While it is difficult to tell how much of this was due to institutional shortcomings, as opposed to the failings of the current administration, it is hardly a stretch to speculate that more concrete checks and balances might have lessened the extent to which the NSA overstepped the line. In this instance, diplomatic relations with other countries were put at stake because of the actions of an unelected governmental body.

Bureaucracies have been around a while, and suspicions at their possibly sinister nature have been around almost as long. Robert Michels, a contemporary of Weber’s, worried at the tendency of unelected organizations, even those founded with high-minded purposes, to become oligarchic and self-sustaining in nature. While originally written in reference to the democratic socialist parties of the early twentieth century, the criticism may also be extended to governmental bodies. The actions of the police in Andrew Mitchell’s case — if we can assume the mistakes were not entirely innocent — would fall into this category of a self-serving agency. Even New York’s controversial stop-and-frisk policy could be seen as an example of an unelected governmental body expanding to give itself more powers than it should have (though it is true that support from elected figures has been forthcoming). Indeed, when polled, a majority of New Yorkers both supported the appointment of an inspector general to oversee the Police Department, and disapproved of the policy of stop-and-frisk.

This is not the time to go into depth on the pros and cons of the program, but it is a salient case of popular opinion supporting greater restraints on a body without an electoral mandate. If there was a mechanism for oversight that was publicly accountable, like the aforementioned inspector general, who would exclusively and expressly focus on the conduct of the police department, then there might not be as much controversy over the practice. Such a figure would be directly accountable to the public, relying on their votes to keep his or her job, and would consequently provide a counter-balancing force to the police, should they exceed their brief. Even the civil service in Japan, among the most revered in the world, greatly overstepped its jurisdiction by becoming the conduit through which special interests and lobbying groups could seek to sway policy, with the arguments often taking a monetary form. In this guise, the state bureaucracy became arguably the most powerful branch of government, as a legislature dominated by the ruling LDP would do little more than legitimize the proposals sent to them, resulting in rife corruption and favoritism. In this case, public disapproval was strong enough that the LDP were voted out in favor of a party that campaigned on a platform of bringing the civil service to heel.

Despite the pessimistic nature of these examples, I don’t wish to argue that bureaucracies are essentially evil (and if they are, then they are a necessary one). Rather, it is the danger that, like any branch of government, if left unchecked they tend to swell beyond the jurisdiction that is fitting for bodies of that unelected nature, whether it is going over the head of elected elements, as in the case of the NSA, or actively antagonizing those elements, as did the police in the instance of the Andrew Mitchell scandal. In short, there is more than red tape at stake here, and we cannot let bureaucracies run with their scissors.

The Edward Snowden saga is far from over. Last week, the Guardian and Der Spiegel broke a story, based on evidence reportedly found within the documents released by Snowden, that the NSA has been monitoring German Chancellor Angela Merkel’s cell-phone since as early as 2002, when she headed the Christian Democratic Party. The surveillance, naturally, was met with widespread condemnation, both here in the U.S., even from those who called the Snowden leaks an “act of treason,” and of course in Europe. Most understandably, the biggest outcry came from Merkel herself, in the form of a personal phone call with President Obama.

Many months ago, I asked a question of the Pentagon (of which the NSA is a part) in regards to North Korea: why would we, the American people, believe you after the falsities that led us to Iraq? A more dangerous question has now formed: why would anyone in the world, particularly the foreign leaders like Chancellor Merkel who we supposedly respect and rely on, offer the American intelligence and diplomatic community a shred of trust?

In response to these allegations, the White House has only been able to offer the most incriminating of responses: it is not and will not monitor her communications. As Roger Cohen at the New York Times writes, this assurance is “tantamount to confirmation through omission that in the past it has.”

Some, like Congressman Mike Rogers (R-MI), expect the world to believe their untenable though impassioned defense that these NSA activities are worth their intransigence, if only to keep us safe. I disagree, and claim that we will find the opposite occur. The often-tenuous diplomatic and personal relationships on which the global security to which Rogers appeals are built will crumble, lost amidst a haze of accusations and breaches of trust.

What is just as fascinating as the story itself is the way that it has been discussed here in America. An interesting exchange took place last Friday on MSNBC’s Morning Joe. Discussing the Merkel revelations, Sam Stein, the Huffington Post’s White House correspondent, said, “To a certain extent I’m not surprised we spy on foreign leaders. There’s got to be a historical precedent, in the telephone age.”  Harold Ford Jr., a former congressman from Tennessee, quickly interrupted: “Are you saying you’re not surprised we’re spying on Angela Merkel? … You’re not surprised by that, I am surprised by that.”

What is so dangerous is the air of inevitability that has come to accompany the actions of the American intelligence community. It’s a question of what’s worse: that NSA surveillance has illegally reached into the deepest echelon’s of foreign governments, establishing secret intelligence centers in these nations,  or the fact that, frankly, many aren’t surprised that it has. I understand Mr. Ford’s indignation — but I also sympathize with Mr. Stein. If the NSA had no qualms in surveilling those many millions of  private cellular records, what would stop them from doing so to 35 of the world’s leaders? What is so dangerous is the air of inevitability (though thankfully not acceptance) that has come to accompany the actions of the American intelligence community.

Many, including myself, are guilty of what could be called a complex of denial. It has always been understood that America spies on foreign leaders, and of course there exists historical precedence for such activities. But with this year’s Snowden revelations, and particularly with this recent story, what has previously been easily ignored can and should be ignored no longer. What is unfortunate is that it might take an infringement of the rights of just one person, Ms. Merkel, to lead to a dialogue that should not be secreted away in the name of national security.

“Gentlemen do not read others’ mail.”

–Henry L. Stimson.

“One might expect Europeans to protest loudly — if only to appease their offended publics — but then revert to type and do little concrete in response. After all, America’s European partners have a long history of deferring to Washington, and it’s not entirely clear why anyone should expect them to grow a real backbone now.”

Stephen Walt.

The Cold War ended two decades ago. Today’s world looks nothing like the bipolar (and in retrospect, enviably stable) order of 1947-1991, but it isn’t a New American Century either. This  is largely a result of the West’s self-inflicted wounds: the European Union is busy bleeding itself dry with austerity policies and America becoming a dysfunctional regime. But part of it is unavoidable: in a world were the US’s share of world GDP has dropped to half of its postwar peak and European armies are not even operational, Western power is becoming a brittle, if not fictitious, construct.

None of this is new, but it still has to dawn upon European elites. When it comes to foreign policy the European Union remains, despite diverging interests and huge disagreements, Washington’s yes-man. This pliant attitude made sense when the Red Army lurked along the other side of the Elbe, but not today. And yet the recent attempt to retain Bolivian President Evo Morales in Austria, on the assumption that NSA whistleblower Edward Snowden was hidden inside his plane, epitomizes the ongoing capitulation of European foreign policy to American interests.

The episode is grotesque for three reasons. The first and most obvious is brutta figura. Appearances and procedure matter in international affairs: stopping and searching a Head of State’s plane (Austria); coming up with unconvincing excuses to block its use of national airspace (France, Portugal, Italy); and flopping on whether to let it refuel (Spain) makes Europeans seem unconcerned with international law and blindly obedient to US guidelines. They are both. And there is another ugly issue at stake. I suspect the overbearing attitude of European officials has much to do with the fact that Morales is the small, brown, and funnily dressed president of a “remote” and “often-overlooked” country full of indios. Or would Austria have dared stop Vladimir Putin if he were the one visiting Bolivia?

The second reason has to do with the senselessness of following American orders. So what if Snowden was hidden in Morales’ plane? It is towards America’s NATO partners that much of the NSA’s spying activity was directed. We are not talking about “spear-fishing” techniques, common enough among allies, but of surveillance conducted on a massive and indiscriminate scale, at a time when the excuse of fighting a “Global War on Terror” no longer holds. This constitutes an unprecedented breach of trust between both sides of the Atlantic (and the English Channel, given the UK’s involvement). Instead of—or in addition to—using this incident as an excuse to abort the much-hyped US-EU trade agreement, the EU should offer Snowden asylum within its borders. That European leaders have opted instead for compliance and agreed to stop Morales’ plane is profoundly disappointing—all the more so when they never complained about CIA flights refueling on their way to Guantánamo.

Last but not least there is a sad irony in packing off Morales’ plane to refuel in the Canary Islands instead of mainland Spain. If Nelson Mandela drove the last nail into the coffin of colonialism in Africa, the honor in Latin America belongs to Evo Morales: like him or not, he is the first indigenous president in a country traditionally ruled by criollos, where whites amount to 15% of the population. Not so in the Canary Islands, because Normans and Spaniards decimated the native population during the 15th Century—right before Columbus used the archipelago as a springboard to the Americas. This is just a coincidence. But it is also the fitting ending of an episode that sheds much light on Europe’s colonial past, its present subordination to Washington’s wishes, and the hollowness of its claims to moral high ground.

The EU remains “an economic giant, a political dwarf, and a military worm” (?!). The third point makes dumping NATO unfeasible, so the European Defense Community will have to remain an imagined one. Regardless, the NSA scandal should serve to create closer political integration among European states. Adopting a Single European Sky and granting Snowden asylum would be a perfect–if ultimately unlikely–point of departure.

 

Stephen Baker is a former senior writer and technology correspondent for BusinessWeek and the author of “Final Jeopardy” and “The Numerati,” about the rapidly growing role of Big Data in the lives of citizens. Baker spoke with BPR Editor-in-Chief Ben Wofford about the recent NSA scandal and the ongoing national debate over privacy and security.

 

Forgetting the Orwellian aspects of the NSA surveillance program (and you shouldn’t), this story has been pretty fun. Some have labeled NSA leaker Edward Snowden a hero, while House Speaker John Boehner called him a traitor. Rand Paul announced he is suing the federal government. Times columnist David Brooks, after applying some pop psychology to Snowden, concluded that this incident exemplifies how young people don’t trust institutions anymore. People like New Yorker contributor Jeffrey Toobin and Wire creator David Simon, not your usual supporters of the surveillance state, have defended the NSA and criticized Snowden.

Simon’s piece is especially interesting, and he lays out a good case why this program is not a big deal. The NSA is only capturing information about who calls whom and when, not recording the calls themselves. As Simon notes, this is an accepted police tactic. This program is allowed under current law. There was oversight of the program by Congress and the secret Foreign Intelligence Surveillance (FISA) Court.

But concerns over the NSA’s activities cannot be brushed aside so easily. Some Congresspeople have said they were unaware of the program’s existence. The FISA court has only denied warrants sought by the government a minuscule 0.03% of the time. This lack of meaningful oversight is one of the main problems with the current NSA surveillance program, and with many current national security policies. As any middle school social studies student will tell you, checks and balances are a hallmark of American democracy.

The other issue with the NSA’s actions is the level of secrecy. There are legitimate government secrets, and you can argue that this program should be one of them. But the lack of oversight, combined with the massive scale of this program and the amount of data collected from American citizens, means it’s important to have a conversation about it.

It’s worth looking at a domestic security program when thinking about how to handle the NSA program. New York City police use a tactic called “stop and frisk” to question people on the street that they have  a reasonable suspicion may have committed a crime. Opponents have criticized the program because it overwhelming targets black and Latino citizens. Proponents note the dramatic fall in New York’s crime rate over the last decade. The tactic has been subject to legal action that has forced the police to clarify and restrict their procedures. The current mayoral election in New York has included debates about stop and frisk, with most Democratic candidates opposed.

The NSA program and stop and frisk are not entirely comparable. It’s hard for the New York police to hide a program happening on the city streets. There is a legitimate case that antiterrorism activities need a greater level of secrecy to succeed. But both programs involve a trade-off between liberty and security. Like with stop and frisk, NSA proponents argue that the program has been successful and stopped dozens of attacks. But stop and frisk is being overseen by the courts and debated in the political process. The NSA’s activities have not been, until now.

Making such programs public will decrease their effectiveness. But isn’t it reasonable to assume that terrorists – or at least the most skilled and dangerous ones – already assume they’re under surveillance? Will this disclosure change their behavior that much?

In his speech responding to the NSA leak, President Obama said:

But I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.

This is exactly right. But by classifying these programs and denying their existence, the only people that get to make those choices are some White House staff and a handful of Congresspeople. Our society hasn’t been able to have that debate. Sometimes security does mean sacrificing liberty. But sometimes our commitment to liberty means that the national security apparatus must work harder to find ways of protecting us that don’t infringe on our privacy.