tag:theconversation.com,2011:/fr/topics/edward-snowden-6189/articlesEdward Snowden – The Conversation2024-02-05T14:19:18Ztag:theconversation.com,2011:article/2221652024-02-05T14:19:18Z2024-02-05T14:19:18ZSurveillance and the state: South Africa’s proposed new spying law is open for comment – an expert points out its flaws<p>In early 2021, the South African Constitutional Court <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/36631/%5bJudgment%5d%20CCT%20278%20of%2019%20and%20279%20of%2019%20AmaBhungane%20Centre%20for%20Investigative%20Journalism%20v%20Minister%20of%20Justice%20and%20Others.pdf?sequence=42&isAllowed=y">found</a> that the country’s <a href="https://www.ssa.gov.za/">State Security Agency</a>, through its signals intelligence agency, the <a href="https://mg.co.za/article/2013-06-21-00-spy-wars-south-africa-is-not-innocent/">National Communication Centre</a>, was conducting <a href="https://privacyinternational.org/long-read/827/how-bulk-interception-works">bulk interception of electronic signals</a> unlawfully. </p>
<p>Bulk interception <a href="https://privacyinternational.org/long-read/827/how-bulk-interception-works">involves</a> the surveillance of electronic signals, including communication signals and internet traffic, on a very large scale, and often on an untargeted basis. If intelligence agents misuse this capability, it can have a massive, negative impact on the privacy of innocent people. </p>
<p>The court found that there was no law authorising the practice of bulk surveillance and limiting its potential abuse. It ordered that the agency cease such surveillance until there was. </p>
<p>In November 2023, the South African presidency responded to the ruling by tabling a bill to, among other things, plug the gaps identified by the country’s highest court. The <a href="https://static.pmg.org.za/B40-2023_General_Intelligence_Laws.pdf">General Intelligence Laws Amendment Bill</a> sets out how the surveillance centre, based in Pretoria, the capital city, should be regulated.</p>
<p>I have researched intelligence and surveillance for over a decade and also served on the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">2018 High Level Review Panel on the State Security Agency</a>. <a href="https://intelwatch.org.za/2023/11/17/briefing-note-general-intelligence-laws-amendment-bill-gilab/">In my view</a>, the bill lacks basic controls over how this highly invasive form of surveillance should be used. This compromises citizens’ privacy and increases the potential for the state to repeat previous abuses. I discuss some of these abuses below. </p>
<h2>The dangers</h2>
<p>Intelligence agencies use bulk interception to put large numbers of people, and <a href="https://www.theguardian.com/world/2014/may/03/everyone-is-under-surveillance-now-says-whistleblower-edward-snowden">even whole populations</a>, under surveillance. This is regardless of whether they are suspected of serious crimes or threats to national security. Their intention is to obtain strategic intelligence about <a href="https://www.nsa.gov/Signals-Intelligence/Overview/">longer term external threats</a> to a country’s security, and that may be difficult to obtain by other means. </p>
<p>Former United States National Security Agency contractor <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">Edward Snowden’s</a> leaks of classified intelligence documents showed how these capabilities had been used to <a href="https://www.reuters.com/article/idUSKBN25T3CJ/">spy on US citizens</a>. The leaks also showed that British intelligence <a href="https://www.lemonde.fr/afrique/article/2016/12/08/british-spying-tentacles-reach-across-africa-s-heads-of-states-and-business-leaders_5045668_3212.html">spied on African</a> trade negotiators, politicians and business people to give the UK government and its partners unfair trade advantages.</p>
<p>In the case of South Africa, around 2005, rogue agents in the erstwhile <a href="https://irp.fas.org/world/rsa/index.html">National Intelligence Agency</a> misused bulk interception to <a href="https://www.gov.za/sites/default/files/gcis_document/201409/igreport0.pdf">spy on</a> senior members of the ruling African National Congress, the opposition, business people and civil servants. This was despite the agency’s mandate being to focus on foreign threats. </p>
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<a href="https://theconversation.com/south-africas-new-intelligence-bill-is-meant-to-stem-abuses-whats-good-and-bad-about-it-220473">South Africa's new intelligence bill is meant to stem abuses – what's good and bad about it</a>
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<p>These rogue agents were able to abuse bulk interception because there was no law controlling and limiting how these capabilities were to be used. A 2008 commission of inquiry, appointed by then-minister of intelligence <a href="https://www.sahistory.org.za/people/ronald-ronnie-kasrils">Ronnie Kasrils</a>, <a href="https://www.lse.ac.uk/international-development/Assets/Documents/PDFs/csrc-background-papers/Intelligence-In-a-Constitutional-Democracy.pdf">called</a> for this law to be enacted. The government refused to do so until it was forced to act by the Constitutional Court ruling. </p>
<p>The government <a href="https://www.anchoredinlaw.net/wp-content/uploads/2019/09/Answering-Affidavit-DG-State-Security-Agency.pdf">justified</a> its refusal to act by claiming that the National Communication Centre was regulated adequately through the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act39of1994.pdf">National Strategic Intelligence Act</a>. The court rejected this argument because the act failed to address the regulation of bulk interception directly. </p>
<h2>What the Constitutional Court said</h2>
<p>The 2021 Constitutional Court <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/36631/%5bJudgment%5d%20CCT%20278%20of%2019%20and%20279%20of%2019%20AmaBhungane%20Centre%20for%20Investigative%20Journalism%20v%20Minister%20of%20Justice%20and%20Others.pdf?sequence=42&isAllowed=y">judgment</a> did not address whether bulk interception should ever be acceptable as a surveillance practice. However, it appeared to accept the <a href="https://www.anchoredinlaw.net/wp-content/uploads/2019/09/Answering-Affidavit-DG-State-Security-Agency.pdf">agency’s argument</a> that it was an internationally accepted method of monitoring transnational signals. But the legitimacy of this practice is <a href="https://www.documentcloud.org/documents/3115985-APPLICANTS-REPLY-to-GOVT-OBSERVATIONS-PDF.html">highly contested internationally</a>. That’s because this form of surveillance usually extends far beyond what is needed to protect national security.</p>
<p>The court <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/36631/%5bJudgment%5d%20CCT%20278%20of%2019%20and%20279%20of%2019%20AmaBhungane%20Centre%20for%20Investigative%20Journalism%20v%20Minister%20of%20Justice%20and%20Others.pdf?sequence=42&isAllow">indicated</a> that it would want to see a law authorising bulk surveillance that sets out “the nuts and bolts of the Centre’s functions”. The law would also need to spell out in</p>
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<p>clear, precise terms the manner, circumstances or duration of the collection, gathering, evaluation and analysis of domestic and foreign intelligence.</p>
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<p>The court would also be looking for detail on</p>
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<p>how these various types of intelligence must be captured, copied, stored, or distributed.</p>
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<h2>What the amendment bill says</h2>
<p>The <a href="https://static.pmg.org.za/B40-2023_General_Intelligence_Laws.pdf">amendment bill</a> provides for the proper establishment of the National Communication Centre and its functions. This includes the collection and analysis of intelligence from electronic signals, and information security or cryptography. A parliamentary <a href="https://pmg.org.za/committee/335/">ad hoc committee</a> has set a <a href="https://www.parliament.gov.za/press-releases/media-statement-ad-hoc-committee-general-intelligence-laws-amendment-bill-extends-deadline-written-submissions#:%7E:text=Unfortunately%2C%20the%20timeline%20to%20process,over%206%20000%20written%20submissions.">deadline</a> of 15 February 2024 for public comment.</p>
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Read more:
<a href="https://theconversation.com/south-africas-intelligence-agency-needs-speedy-reform-or-it-must-be-shut-down-200386">South Africa's intelligence agency needs speedy reform - or it must be shut down</a>
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<p>The bill says, in vague terms, that the centre shall gather, correlate, evaluate and analyse relevant intelligence to identify any threat or potential threat to national security. But it doesn’t provide any of the details the court said it would be looking for. This is a major weakness.</p>
<p>The bill has one strength, though. It states that the surveillance centre needs to seek the permission of a retired judge, assisted by two interception experts, before conducting bulk interception. The judge will be appointed by the president, and the experts by the minister in charge of intelligence. The position is <a href="https://www.ssa.gov.za/AboutUs">located in the presidency</a>.</p>
<p>However, it does not spell out the bases on which the judge will take decisions. The fact that the judge would be an executive appointment also raises doubts about his or her independence.</p>
<h2>Inadequate benchmarking</h2>
<p>The bill fails to incorporate international benchmarks on the regulation of strategic intelligence and bulk interception in a democracy. These require that a domestic legal framework provide what the European Court of Human Rights <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-210077%22%5D%7D">has referred to</a> as “end-to-end” safeguards covering all stages of bulk interception.</p>
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Read more:
<a href="https://theconversation.com/south-africas-intelligence-watchdog-is-failing-civil-society-how-to-restore-its-credibility-195121">South Africa's intelligence watchdog is failing civil society. How to restore its credibility</a>
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<p>The European Court <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-210077%22%5D%7D">has stated</a> that a domestic legal framework should define</p>
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<li><p>the grounds on which bulk interception may be authorised</p></li>
<li><p>the circumstances</p></li>
<li><p>the procedures to be followed for granting authorisation </p></li>
<li><p>procedures for selecting, examining and using material obtained from intercepts</p></li>
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<p>The framework <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-210077%22%5D%7D">should also set out</a> </p>
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<li><p>the precautions to be taken when communicating the material to other parties</p></li>
<li><p>limits on the duration of interception </p></li>
<li><p>procedures for the storage of intercepted material</p></li>
<li><p>the circumstances in which such material must be erased and destroyed </p></li>
<li><p>supervision procedures by an independent authority</p></li>
<li><p>compliance procedures for review of surveillance once it has been completed.</p></li>
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<p>The bill does not meet these requirements. </p>
<p>Incorporating these details in regulations would not be adequate on its own, as the bill gives the intelligence minister too much power to set the ground rules for bulk interception. These rules are also unlikely to be subjected to the same level of public scrutiny as the bill. </p>
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Read more:
<a href="https://theconversation.com/zondo-commissions-report-on-south-africas-intelligence-agency-is-important-but-flawed-186582">Zondo Commission's report on South Africa's intelligence agency is important but flawed</a>
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<p>The fact that the presidency is attempting to get away with the most minimal regulation of bulk interception raises doubt about its <a href="https://www.stateofthenation.gov.za/assets/downloads/State%20Capture%20Commission%20Response.pdf">stated commitment</a> to intelligence reform to limit the scope for abuse, and parliament needs correct the bill’s clear deficiencies.</p><img src="https://counter.theconversation.com/content/222165/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from the British Academy and is a director of the non-governmental organisation Intelwatch. </span></em></p>The fact that the presidency is attempting to get away with minimal regulation of bulk interception raises doubt about its commitment to ending intelligence abuse.Jane Duncan, Professor of Digital Society, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2204732024-01-11T15:54:30Z2024-01-11T15:54:30ZSouth Africa’s new intelligence bill is meant to stem abuses – what’s good and bad about it<p>When South Africa became a constitutional democracy <a href="https://www.britannica.com/question/How-did-apartheid-end">in 1994</a>, it replaced its apartheid-era intelligence apparatus with a new one aimed at serving the country’s new democratic dispensation. However, the regime of former president Jacob Zuma, 2009-2018, deviated from this path. It <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">abused</a> the intelligence services to serve his political and allegdly corrupt ends. Now the country is taking steps to remedy the situation.</p>
<p>In November 2023, the presidency published the <a href="https://pmg.org.za/bill/1197/">General Intelligence Laws Amendment Bill</a>. It proposes overhauling the civilian intelligence agency, the <a href="http://www.ssa.gov.za/">State Security Agency</a>, to address the <a href="https://www.saflii.org/images/state-capture-commission-report-part-5-vol1.pdf">abuses</a>.</p>
<p>The bill is extremely broad in scope. It intends to amend 12 laws – including the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act39of1994.pdf">main</a> <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a65-020.pdf">intelligence</a> <a href="https://static.pmg.org.za/docs/120224oversight_0.PDF">laws</a> of the democratic era. </p>
<p>Parliament has set itself a <a href="https://pmg.org.za/committee-meeting/38063/">1 March deadline</a> to complete work on the bill before it dissolves for the national election expected between <a href="https://www.elections.org.za/pw/elections/whats-new-in-the-2024-elections-electoral-amendment-act">May and August</a>. </p>
<p>I have researched intelligence and surveillance for over a decade and also served on the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">2018 High Level Review Panel on the State Security Agency</a>.</p>
<p>In my view, some of the proposals in the bill risk replacing the old abuses with new ones. The bill seeks to broaden intelligence powers drastically but fails to address <a href="https://pmg.org.za/committee-meeting/38207/">longstanding weaknesses in their oversight</a>. </p>
<h2>Ending abuse</h2>
<p>The bill is meant to respond to major criticisms of the State Security Agency during Zuma’s presidency. The critics include the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">High Level Review Panel</a> and the <a href="https://www.saflii.org/images/state-capture-commission-report-part-5-vol1.pdf">Commission of Inquiry into State Capture</a>. </p>
<p>The main criticism of the panel appointed by Zuma’s successor Cyril Ramaphosa in 2018 was that under Zuma, the executive <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">repurposed</a> the agency to keep him in power, along with his supporters and others dependent on his patronage. In 2009, he merged the erstwhile domestic intelligence agency, the National Intelligence Agency, and the foreign agency, the <a href="https://www.ssa.gov.za/AboutUs/Branches">South African Secret Service</a>, by <a href="https://www.defenceweb.co.za/security/national-security/ssa-takes-shape-legislation-to-follow/">presidential proclamation</a>, to centralise intelligence. This made it easier for his regime to control intelligence to achieve nefarious ends. The state capture commission made <a href="https://www.saflii.org/images/state-capture-commission-report-part-5-vol1.pdf">similar findings</a>.</p>
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Read more:
<a href="https://theconversation.com/south-africas-surveillance-law-is-changing-but-citizens-privacy-is-still-at-risk-214508">South Africa’s surveillance law is changing but citizens’ privacy is still at risk</a>
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<p>The most important proposal in the bill is to abolish the <a href="https://nationalgovernment.co.za/units/view/42/state-security-agency-ssa">State Security Agency</a>. It is to be replaced by two separate agencies: one for foreign intelligence, and the other for domestic. The proposed new South African Intelligence Service (foreign) and the South African Intelligence Agency (domestic) will have separate mandates.</p>
<p>Abolishing the State Security Agency would be an important step towards accountability, as set out in the 1994 <a href="https://www.gov.za/documents/white-papers/intelligence-white-paper-01-jan-1995#:%7E:text=The%20goal%20of%20this%20White,relevant%2C%20credible%20and%20reliable%20intelligence.">White Paper on Intelligence</a>. </p>
<p>The proposed names of the envisioned new agencies have symbolic importance. They suggest a shift away from a focus on state security, or protection of those in positions of power. Instead, it puts the focus back on human security. This is the protection of broader society, as <a href="https://www.gov.za/documents/white-papers/intelligence-white-paper-01-jan-1995#:%7E:text=The%20goal%20of%20this%20White,relevant%2C%20credible%20and%20reliable%20intelligence.">required</a> by the 1994 White Paper.</p>
<h2>The dangers of over-broad definitions</h2>
<p>However, the new mandates given to the two new agencies, and the definitions they rely on, are so broad that abuse of their powerful spying capabilities is almost a foregone conclusion.</p>
<p>The bill says the new agencies will be responsible for collecting and analysing intelligence relating to threats or potential threats to national security in accordance with <a href="https://www.justice.gov.za/constitution/chp11.html#:%7E:text=198.,to%20seek%20a%20better%20life.">the constitution</a>.</p>
<p>The bill defines national security as</p>
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<p>the capabilities, measures and activities of the state to pursue or advance any threat, any potential threat, any opportunity, any potential opportunity or the security of the Republic and its people …</p>
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<p>This definition is extremely expansive. It allows the intelligence services to undertake any activity that could advance South Africa’s interests. This is regardless of whether there are actual national security threats. </p>
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Read more:
<a href="https://theconversation.com/south-africas-intelligence-watchdog-is-failing-civil-society-how-to-restore-its-credibility-195121">South Africa's intelligence watchdog is failing civil society. How to restore its credibility</a>
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<p>This creates the potential for overlap with the mandates of other state entities. However, unlike these, the intelligence agencies will be able to work secretly, using their extremely invasive <a href="https://mg.co.za/article/2013-06-21-00-spy-wars-south-africa-is-not-innocent/">surveillance</a> <a href="https://www.dailymaverick.co.za/article/2022-07-28-the-awful-state-of-lawful-interception-in-sa-part-two-surveillance-technology-thats-above-the-law/">capabilities</a>.</p>
<p>Such capabilities should only be used in exceptional circumstances when the country is under legitimate threat. To normalise their use in everyday government functions threatens democracy.</p>
<p>Intelligence overreach has happened elsewhere. Governments are increasingly requiring intelligence agencies to ensure that policymakers enjoy <a href="https://www.bloomsbury.com/uk/national-security-surveillance-in-southern-africa-9780755640225/">decision advantages</a> in a range of areas. These include bolstering trade advantages over other countries.</p>
<p>For example, whistleblower <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">Edward Snowden’s</a> leaks of classified US and UK intelligence documents showed how the countries misused broad interpretations of national security to engage in <a href="https://www.bbc.co.uk/news/25907502">industrial espionage</a>.</p>
<p>The UK government used its powerful <a href="https://www.gchq.gov.uk/">signals intelligence capability</a> to <a href="https://www.lemonde.fr/afrique/article/2016/12/08/british-spying-tentacles-reach-across-africa-s-heads-of-states-and-business-leaders_5045668_3212.html">spy on</a> African politicians, diplomats and business people during trade negotiations. These abuses mean intelligence mandates should be narrowed and state intelligence power should be reduced.</p>
<h2>Human security definition of national security</h2>
<p>The State Security Agency used its presentation to parliament on the bill to seek broad mandates. Its <a href="https://pmg.org.za/files/231129Presentation_of_GILAB_Final.pptx">presentation</a> says it seeks to give effect to the national security principles in <a href="https://www.justice.gov.za/constitution/chp11.html#:%7E:text=198.,to%20seek%20a%20better%20life.">section 198</a> of the constitution. The section states that:</p>
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<p>national security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.</p>
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<p>This principle is actually based on the human security definition of national security. The <a href="https://www.un.org/en/ga/">United Nations General Assembly</a> calls this freedom from fear and freedom from want. </p>
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Read more:
<a href="https://theconversation.com/surveillance-laws-are-failing-to-protect-privacy-rights-what-we-found-in-six-african-countries-170373">Surveillance laws are failing to protect privacy rights: what we found in six African countries</a>
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<p>In its broadest sense, human security protects individuals from a wide range of threats and addresses their underlying drivers. These include <a href="https://www.researchgate.net/publication/231962570_Critical_Human_Security_Studies">poverty, underdevelopment and deprivation</a>. State security, on the other hand, is about protecting the state from threats. </p>
<p>If social issues are <a href="https://www.libraryofsocialscience.com/assets/pdf/Waever-Securitization.pdf">securitised</a> – or treated as national security issues requiring intervention by the state’s security services – it becomes difficult to distinguish the work of these agencies from the social welfare arms of the state.</p>
<h2>What needs to happen</h2>
<p>International relations scholar Neil MacFarlane and political scientist Yuen Foong Khong <a href="https://unesdoc.unesco.org/ark:/48223/pf0000147585">suggested</a> in 2006 that it was possible to address this conundrum by maintaining the focus on broader society as the entity that needs protection, rather than the state. </p>
<p>Legislators need to take a <a href="https://unesdoc.unesco.org/ark:/48223/pf0000147585">similar approach</a> when debating the bill. They should narrow the focus of the envisaged two new agencies to domestic and foreign threats of organised violence against society, such as genocide or terrorism. By doing so, they would still be recognising the best of what human security has to offer as an intelligence doctrine, while providing a much more appropriate focus for civilian intelligence.</p><img src="https://counter.theconversation.com/content/220473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from the British Academy and is a director of Intelwatch, a non-governmental organisation devoted to strengthening democratic oversight of state and private intelligence. </span></em></p>The bill seeks greater intelligence powers but neglects oversight.Jane Duncan, Professor of Digital Society, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2073732023-06-09T15:44:39Z2023-06-09T15:44:39ZTrump charged under Espionage Act – which covers a lot more crimes than just spying<figure><img src="https://images.theconversation.com/files/531151/original/file-20230609-15-kmec9x.jpg?ixlib=rb-1.1.0&rect=35%2C11%2C7912%2C5147&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump was on the campaign trail in early June 2023, as an investigation continued that led to his indictment on federal charges.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-and-2024-presidential-hopeful-donald-news-photo/1258360358">Andrew Caballero-Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Former President Donald Trump’s <a href="https://www.washingtonpost.com/national-security/2023/06/09/indictment-document-trump-classified-documents-pdf/">indictment by a federal grand jury</a> in Miami includes <a href="https://www.washingtonpost.com/dc-md-va/2023/06/09/trump-charges-classified-documents/">31 counts of violating</a> a part of the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>.</p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump indictment, here are a few things to note about the Espionage Act.</p>
<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for a document’s return. Trump’s charges reportedly include an allegation of “unauthorized retention of <a href="https://www.nytimes.com/2023/06/08/us/politics/trump-indictment-charges.html">national security documents</a>,” which can include both possessing the documents and refusing to return them to the government. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
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</figure>
<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
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<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">article</a> originally published Aug. 15, 2022.</em></p><img src="https://counter.theconversation.com/content/207373/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding.</span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Spy cases are rare. More typically, as in the Trump indictment, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2038732023-04-17T12:42:51Z2023-04-17T12:42:51ZYet another case of mishandling classified documents and alleged violations of the Espionage Act: 3 essential reads<figure><img src="https://images.theconversation.com/files/521071/original/file-20230414-16-rn6ccq.jpg?ixlib=rb-1.1.0&rect=440%2C188%2C2555%2C1809&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jack Teixeira is suspected of leaking classified U.S. documents on Western allies and the war in Ukraine. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-photo-illustration-created-on-april-13-shows-the-news-photo/1251791995?adppopup=true">Stefani Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>The stunning arrest of 21-year-old Massachusetts Air National Guardsman Jack Teixeira on charges of illegally sharing U.S. intelligence has once again renewed questions on the handling of classified documents.</p>
<p>Since the discovery a decade ago of top-secret documents leaked by <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">Edward Snowden</a>, questions on the vulnerability of the nation’s most sensitive intelligence were only intensified after a variety of classified papers were found earlier this year in the possession of <a href="https://www.nytimes.com/2023/04/12/us/politics/trump-map-classified-documents-justice-department.html">former U.S. President Donald Trump</a> at his home at Mar-a-Lago in Florida. </p>
<p>Teixeira <a href="https://www.nytimes.com/interactive/2023/04/14/us/teixeira-docs.html">is accused of</a> the “alleged unauthorized removal, retention and transmission of classified national defense information.” He has not entered a plea as yet to the charges <a href="https://www.nytimes.com/2023/04/14/us/politics/espionage-act-charges.html">involving the leaking of U.S. intelligence</a>, including documents on Russian efforts in Ukraine and spying on U.S. allies. </p>
<p>The charges carry <a href="https://www.bbc.com/news/world-us-canada-65273543">a maximum penalty</a> of up to 15 years in prison.</p>
<p>Over the years, The Conversation U.S. has published numerous stories exploring the nature of classified documents – and how different motivations play a part in an individual’s decision to mishandle the nation’s secrets. Here are selections from those articles.</p>
<h2>1. What are classified documents?</h2>
<p>Before coming to academia, <a href="https://dornsife.usc.edu/cf/faculty-and-staff/faculty.cfm?pid=1006509">Jeffrey Fields</a> worked for many years as an analyst at both the State Department and the Department of Defense.</p>
<p>In general, Fields <a href="https://theconversation.com/heres-how-government-documents-are-classified-to-keep-sensitive-information-safe-188687">writes</a>, classified information is “the kind of material that the U.S. government or an agency deems sensitive enough to national security that access to it must be controlled and restricted.”</p>
<p>Of the <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">three levels of classification</a>, a “confidential” designation is the lowest and contains information whose release could damage U.S. national security, Fields explains. </p>
<p>The next level is “secret” and refers to information whose disclosure could cause “serious” damage to U.S. national security.</p>
<p>The most serious designation is “top secret” and means disclosure of the document could cause “exceptionally grave” damage to national security.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/heres-how-government-documents-are-classified-to-keep-sensitive-information-safe-188687">Here's how government documents are classified to keep sensitive information safe</a>
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</em>
</p>
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<h2>2. Violations of the Espionage Act</h2>
<p>On April 14, 2023, U.S. prosecutors <a href="https://www.nytimes.com/live/2023/04/14/us/leaked-documents-jack-teixeira">charged Teixeira</a> in connection with violations of the <a href="https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918">Espionage Act</a>.</p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">Joseph Ferguson</a> and <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">Thomas A. Durkin</a> are both attorneys who specialize in and teach national security law.
They <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">explain the Espionage Act</a>.</p>
<p>Typically, violations of the act apply to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a> and fall under <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
<p>Ferguson and Durkin also urge patience before rendering judgment on any case involving violations of the Espionage Act, in part because of the classified nature of the potential evidence and the risk that further exposure would have on U.S. national security. </p>
<p>“The Espionage Act is serious and politically loaded business,” they write. “These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">You don't have to be a spy to violate the Espionage Act – and other crucial facts about the law Trump may have broken</a>
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</em>
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<h2>3. How to fight future leaking</h2>
<p>Cassandra Burke Robertson is a scholar of legal ethics who has studied ethical decision-making in the political sphere.</p>
<p>She <a href="https://theconversation.com/when-is-a-leak-ethical-79100">points out</a> that criminal prosecutions alone may not be the only way to prevent the flow of classified information. </p>
<p>It all depends on an individual’s motivation. </p>
<p>But unlike Snowden, <a href="https://www.nytimes.com/2017/06/06/us/politics/reality-leigh-winner-leak-nsa.html">Reality Leigh Winner</a> or <a href="https://www.usatoday.com/story/news/politics/2017/05/14/chelsea-manning-wikileaks-transgender-soldier-donald-trump/101594390/">Chelsea Manning</a>, Teixeira <a href="https://www.bbc.com/news/world-us-canada-65271348">does not appear</a> to have wanted to right a perceived wrong or become what is known as a whistleblower. </p>
<p>In cases where the motive is unclear, Robertson suggests that a potential deterrent is establishing a workplace environment that encourages employees to bring potential ethical and legal violations to an internal authority for review.</p>
<p>Known as <a href="https://www.scu.edu/ethics/focus-areas/business-ethics/resources/encouraging-internal-whistleblowing/">internal whistleblowing</a>, such actions may prove effective in not only protecting classified information from reaching the public but also prevent another national security embarrassment.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/when-is-a-leak-ethical-79100">When is a leak ethical?</a>
</strong>
</em>
</p>
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<img src="https://counter.theconversation.com/content/203873/count.gif" alt="The Conversation" width="1" height="1" />
The handling of US classified information received another stain as a 21-year-old Air National Guardsman stands accused of mishandling secret documents on US allies and the war in Ukraine.Howard Manly, Race + Equity Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1887082022-08-15T17:35:19Z2022-08-15T17:35:19ZYou don’t have to be a spy to violate the Espionage Act – and other crucial facts about the law Trump may have broken<figure><img src="https://images.theconversation.com/files/479036/original/file-20220814-50347-gx33u5.jpeg?ixlib=rb-1.1.0&rect=24%2C12%2C8218%2C5475&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump, at the Conservative Political Action Conference, Aug. 6, 2022, in Dallas. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-at-the-news-photo/1413332675?adppopup=true">Brandon Bell/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.nytimes.com/live/2022/08/12/us/trump-news">federal court-authorized search</a> of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>. A section of the law was <a href="https://www.nytimes.com/2022/08/12/us/trump-espionage-act-laws-fbi.html">listed as one of three potential violations</a> under Justice Department investigation. </p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.</p>
<hr>
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<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
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<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
</figcaption>
</figure>
<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
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</figure>
<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p><img src="https://counter.theconversation.com/content/188708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding </span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two national security law experts explain how the Espionage Act isn’t only about international intrigue, and share other important points about the law that was invoked in a search of Trump’s estate.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1661022021-09-07T20:10:09Z2021-09-07T20:10:09Z‘Fortress USA’: How 9/11 produced a military industrial juggernaut<figure><img src="https://images.theconversation.com/files/419686/original/file-20210907-21-ahq1vn.jpg?ixlib=rb-1.1.0&rect=77%2C2%2C1757%2C1338&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">SAMIR MEZBAN/AP</span></span></figcaption></figure><p>Since the September 11 terror attacks, there has been no hiding from the increased militarisation of the United States. Everyday life is suffused with policing and surveillance. This ranges from the inconvenient, such as removing shoes at the airport, to the dystopian, such as local police departments equipped with <a href="https://coloradosun.com/2020/07/07/colorado-police-military-equipment-protests/">decommissioned tanks too big</a> to use on regular roads.</p>
<p>This process of militarisation did not begin with 9/11. The American state has always relied on force combined with the de-personalisation of its victims. </p>
<p>The army, after all, dispossessed First Nations peoples of their land as <a href="https://nationalcowboymuseum.org/explore/served-u-s-army-frontier/">settlers pushed westward</a>. Expanding the American empire to places such as <a href="https://uncpress.org/book/9780807847428/the-war-of-1898/">Cuba</a>, <a href="https://www.basicbooks.com/titles/christopher-capozzola/bound-by-war/9781541618268/">the Philippines</a>, and <a href="https://uncpress.org/book/9780807849385/taking-haiti/">Haiti</a> also relied on force, based on racist justifications.</p>
<p>The military also ensured American supremacy in the wake of the second world war. As historian Nikhil Pal Singh writes, about <a href="https://www.ucpress.edu/book/9780520318304/race-and-americas-long-war">8 million people were killed in US-led or -sponsored wars</a> from 1945–2019 — and this is a conservative estimate. </p>
<p>When Dwight Eisenhower, a Republican and former military general, left the presidency in 1961, he famously <a href="https://www.youtube.com/watch?v=Gg-jvHynP9Y">warned</a> <a href="https://www.washingtonpost.com/politics/2019/06/26/eisenhower-called-it-military-industrial-complex-its-vastly-bigger-now/">against</a> the growing “military-industrial complex” in the US. His warning went unheeded and the protracted conflict in Vietnam was the result.</p>
<figure class="align-center ">
<img alt="General Dwight D. Eisenhower in second world war." src="https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=586&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=586&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419689/original/file-20210907-29-11c869q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=586&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">General Dwight D. Eisenhower addresses American paratroopers prior to D-Day in the second world war.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
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</figure>
<p>The 9/11 attacks then intensified US militarisation, both at home and <a href="https://www.nytimes.com/2021/08/25/opinion/declaration-war-president-Congress.html">abroad</a>. George W. Bush was elected in late 2000 after campaigning to <a href="https://www.latimes.com/archives/la-xpm-2000-sep-13-mn-20152-story.html">reduce US foreign interventions</a>. The new president discovered, however, that by adopting the persona of a tough, pro-military leader, he could sweep away lingering doubts about the <a href="https://www.history.com/news/2000-election-bush-gore-votes-supreme-court">legitimacy of his election</a>.</p>
<p>Waging war on Afghanistan within a month of the twin towers falling, Bush’s popularity <a href="http://news.bbc.co.uk/2/hi/americas/7814441.stm">soared to 90%</a>. War in Iraq, based on the dubious assertion of Saddam Hussein’s “weapons of mass destruction”, soon followed.</p>
<h2>The military industrial juggernaut</h2>
<p>Investment in the military state is immense. 9/11 ushered in the federal, cabinet-level Department of Homeland Security, with an <a href="https://www.stimson.org/sites/default/files/file-attachments/CT_Spending_Report_0.pdf">initial budget</a> in 2001-02 of US$16 billion. Annual budgets for the agency peaked at US$74 billion in 2009-10 and is now around <a href="https://www.dhs.gov/sites/default/files/publications/fy_2021_dhs_bib_web_version.pdf">US$50 billion</a>.</p>
<p>This super-department vacuumed up bureaucracies previously managed by a range of other agencies, including justice, transportation, energy, agriculture, and health and human services. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/why-is-it-so-difficult-to-fight-domestic-terrorism-6-experts-share-their-thoughts-165054">Why is it so difficult to fight domestic terrorism? 6 experts share their thoughts</a>
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<p>Centralising services under the banner of security has enabled gross miscarriages of justice. These include the separation of tens of thousands of children from parents at the nation’s southern border, done in the guise of protecting the country from so-called illegal immigrants. <a href="https://thehill.com/latino/567497-officials-still-looking-for-parents-of-337-separated-children-court-filing-says">More than 300</a> of the some 1,000 children taken from parents during the Trump administration have still not been reunited with family.</p>
<figure class="align-center ">
<img alt="Detainees in a holding cell at the US-Mexico border." src="https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419690/original/file-20210907-17-aii3q0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Detainees sleep in a holding cell where mostly Central American immigrant children are being processed at the US-Mexico border.</span>
<span class="attribution"><span class="source">Ross D. Franklin/AP</span></span>
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<p>The post-9/11 Patriot Act also gave spying agencies <a href="https://www.vox.com/2015/6/2/8701499/patriot-act-explain">paramilitary powers</a>. The act reduced barriers between the CIA, FBI, and the National Security Agency (NSA) to permit the acquiring and sharing of Americans’ private communications. These ranged from telephone records to web searches. All of this was justified in an atmosphere of <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26841&LangID=E">near-hysterical</a> and enduring anti-Muslim fervour.</p>
<p>Only in 2013 did most Americans realise the <a href="https://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html">extent</a> of this surveillance network. Edward Snowden, a contractor working at the NSA, <a href="https://www.washingtonpost.com/world/national-security/black-budget-summary-details-us-spy-networks-successes-failures-and-objectives/2013/08/29/7e57bb78-10ab-11e3-8cdd-bcdc09410972_story.html">leaked documents</a> that revealed a secret US$52 billion budget for 16 spying agencies and over 100,000 employees.</p>
<h2>Normalisation of the security state</h2>
<p>Despite the long objections of civil liberties groups and disquiet among many private citizens, especially after Snowden’s leaks, it has proven difficult to wind back the industrialised security state. </p>
<p>This is for two reasons: the extent of the investment, and because its targets, both domestically and internationally, are usually not white and not powerful.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/calculating-the-costs-of-the-afghanistan-war-in-lives-dollars-and-years-164588">Calculating the costs of the Afghanistan War in lives, dollars and years</a>
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<p>Domestically, the <a href="https://www.comparitech.com/blog/vpn-privacy/a-breakdown-of-the-patriot-act-freedom-act-and-fisa/">2015 Freedom Act</a> renewed almost all of the Patriot Act’s provisions. Legislation in 2020 that might have <a href="https://slate.com/technology/2020/05/usa-freedom-reauthorization-act-fisa-reform-surveillance-amicus-curiae.html">stemmed</a> some of these powers stalled in Congress. </p>
<p>And recent <a href="https://news.yahoo.com/biden-creating-worst-conditions-thousands-105100641.html">reports</a> suggest President Joe Biden’s election has done little to alter the detention of children at the border.</p>
<p>Militarisation is now so commonplace that local police departments and sheriff’s offices have received some US$7 billion worth of military gear (including grenade launchers and armoured vehicles) since 1997, <a href="https://www.marketplace.org/2020/06/12/police-departments-1033-military-equipment-weapons/">underwritten</a> by <a href="https://www.wired.com/story/pentagon-hand-me-downs-militarize-police-1033-program/">federal government programs</a>. </p>
<figure class="align-center ">
<img alt="Atlanta police in riot gear." src="https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419691/original/file-20210907-19-y2f5f8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Atlanta police line up in riot gear before a protest in 2014.</span>
<span class="attribution"><span class="source">Curtis Compton/AP</span></span>
</figcaption>
</figure>
<p>Militarised police kill civilians at a <a href="https://journals.sagepub.com/doi/10.1177/2053168017712885">high rate</a> — and the <a href="https://www.sentencingproject.org/publications/un-report-on-racial-disparities/">targets</a> for all aspects of policing and incarceration are disproportionately people of colour. And yet, while the sight of excessively armed police forces during last year’s Black Lives Matter protests shocked many Americans, it will take a phenomenal effort to reverse this trend.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/police-with-lots-of-military-gear-kill-civilians-more-often-than-less-militarized-officers-141421">Police with lots of military gear kill civilians more often than less-militarized officers</a>
</strong>
</em>
</p>
<hr>
<h2>The heavy cost of the war on terror</h2>
<p>The juggernaut of the militarised state keeps the United States at war abroad, no matter if Republicans or Democrats are in power. </p>
<p>Since 9/11, the US “war on terror” has cost more than <a href="https://watson.brown.edu/costsofwar/figures/2021/BudgetaryCosts">US$8 trillion</a> and led to the loss of up to <a href="https://watson.brown.edu/costsofwar/figures/2021/WarDeathToll">929,000 lives</a>. </p>
<p>The effects on countries like Afghanistan, Iraq, Yemen, Syria, and Pakistan have been devastating, and with the US involvement in Somalia, Libya, the Philippines, Mali, and Kenya included, these conflicts have resulted in the displacement of some <a href="https://watson.brown.edu/costsofwar/files/cow/imce/papers/2021/Costs%20of%20War_Vine%20et%20al_Displacement%20Update%20August%202021.pdf">38 million people</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1434124722879582219"}"></div></p>
<p>These wars have become self-perpetuating, spawning new terror threats such as the Islamic State and now perhaps ISIS-K. </p>
<p>Those who serve in the US forces have <a href="https://watson.brown.edu/costsofwar/costs/human/veterans">suffered greatly</a>. Roughly <a href="https://watson.brown.edu/costsofwar/files/cow/imce/papers/2021/Costs%20of%20War_Bilmes_Long-Term%20Costs%20of%20Care%20for%20Vets_Aug%202021.pdf">2.9 million living veterans</a> served in post-9/11 conflicts abroad. Of the some 2 million deployed to Iraq or Afghanistan, perhaps 36% are experiencing PTSD.</p>
<p>Training can be <a href="https://www.vanityfair.com/news/2021/06/inside-the-rash-of-unexplained-deaths-at-fort-hood">utterly brutal</a>. The military may still offer opportunities, but the lives of those who serve remain expendable.</p>
<figure class="align-center ">
<img alt="Fighter jet in the Persian Gulf" src="https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=551&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=551&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419688/original/file-20210907-27-ne5ofe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=551&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sailor cleaning a fighter jet during aboard the USS Dwight D. Eisenhower aircraft carrier in the Persian Gulf in 2010.</span>
<span class="attribution"><span class="source">Hasan Jamali/AP</span></span>
</figcaption>
</figure>
<h2>Life must be precious</h2>
<p>Towards the end of his life, Robert McNamara, the hard-nosed Ford Motor Company president and architect of the United States’ disastrous military efforts in Vietnam, came to regret deeply his part in the military-industrial juggernaut.</p>
<p>In his <a href="https://time.com/6052980/vietnam-robert-mcnamara-memoir/">1995 memoir</a>, he judged his own conduct to be morally repugnant. He wrote, </p>
<blockquote>
<p>We of the Kennedy and Johnson administrations who participated in the decisions on Vietnam acted according to what we thought were the principles and traditions of this nation. We made our decisions in light of those values. Yet we were wrong, terribly wrong.</p>
</blockquote>
<p>In <a href="https://www.npr.org/transcripts/106304285">interviews with the filmmaker Errol Morris</a>, McNamara <a href="https://www.imdb.com/title/tt0317910/">admitted</a>, obliquely, to losing sight of the simple fact the victims of the militarised American state were, in fact, human beings. </p>
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<p>As McNamara realised far too late, the solution to reversing American militarisation is straightforward. We must recognise, in the words of activist and scholar <a href="https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html">Ruth Wilson Gilmore</a>, that “life is precious”. That simple philosophy also underlies the call to acknowledge Black Lives Matter.</p>
<p>The best chance to reverse the militarisation of the US state is policy guided by the radical proposal that life — regardless of race, gender, status, sexuality, nationality, location or age — is indeed precious.</p>
<p>As we reflect on how the United States has changed since 9/11, it is clear the country has moved further away from this basic premise, not closer to it.</p><img src="https://counter.theconversation.com/content/166102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clare Corbould has previously received funding from the Australian Research Council. She is a member of the Australian Greens.</span></em></p>The rise of the US military state since 9/11 has cost billions of dollars and resulted in the loss of nearly 1 million lives in wars abroad.Clare Corbould, Associate Professor, Contemporary Histories Research Group, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1654312021-08-12T12:26:36Z2021-08-12T12:26:36ZOrwell’s ideas remain relevant 75 years after ‘Animal Farm’ was published<figure><img src="https://images.theconversation.com/files/415532/original/file-20210810-27-1ph6862.jpg?ixlib=rb-1.1.0&rect=65%2C28%2C2617%2C1920&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">George Orwell's writings have left a lasting imprint on American thought and culture.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/schriftsteller-grossbritannienan-seiner-schreibmaschine-news-photo/541450111?adppopup=true">ullstein bild/ullstein bild via Getty Images</a></span></figcaption></figure><p>Seventy-five years ago, in August 1946, George Orwell’s “Animal Farm” was published in the United States. It was a huge success, <a href="https://www.inquirer.com/philly/opinion/currents/20150824_70-year-old__Animal_Farm__is_still_worth_a_read.html">with over a half-million copies sold in its first year</a>. “Animal Farm” was followed three years later by an even bigger success: Orwell’s dystopian novel “Nineteen Eighty-Four.” </p>
<p>In the years since, Orwell’s writing has left an indelible mark on American thought and culture. Sales of “<a href="https://money.cnn.com/2013/06/12/news/1984-nsa-snowden/">Animal Farm” and “Nineteen Eighty-Four” jumped</a> in 2013 after the whistleblower Edward Snowden <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">leaked confidential National Security Agency</a> documents. And “<a href="https://www.nytimes.com/2017/01/25/books/1984-george-orwell-donald-trump.html">Nineteen Eighty-Four” rose to the top of Amazon’s best-sellers list</a> after Donald Trump’s Presidential Inauguration in 2017.</p>
<p>As a <a href="https://clasprofiles.wayne.edu/profile/hf1190">philosophy professor</a>, I’m interested in the continuing relevance of Orwell’s ideas, including those on totalitarianism and socialism.</p>
<h2>Early career</h2>
<p><a href="https://sutherlandhousebooks.square.site/product/george-orwell-a-life/4">George Orwell</a> was the pen name of Eric Blair. Born in 1903 in colonial India, Blair later moved to England, where he attended elite schools on scholarships. After finishing school, he joined the British civil service, working in Burma, now Myanmar. At age 24, Orwell returned to England to become a writer.</p>
<p>During the 1930s, Orwell had modest success as an essayist, journalist and novelist. He also <a href="https://www.orwellfoundation.com/the-orwell-foundation/orwell/books-by-orwell/homage-to-catalonia/">served as a volunteer soldier</a> with a left-wing militia group that fought on behalf of the Spanish Republic during the Spanish Civil War. During the conflict, Orwell experienced how propaganda could shape political narratives through observing inaccurate reporting of events he experienced firsthand.</p>
<p>Orwell <a href="https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/why-i-write/">later summarized</a> the purpose of his writing from roughly the Spanish Civil War onward: “Every line of serious work I have written since 1936 has been, directly or indirectly, <em>against</em> totalitarianism and <em>for</em> democratic Socialism.” </p>
<p>Orwell did not specify in that passage what he meant by either totalitarianism or democratic socialism, but some of his other works clarify how he understood those terms.</p>
<h2>What is totalitarianism?</h2>
<p>For Orwell, totalitarianism was a political order focused on power and control. The totalitarian attitude is exemplified by the antagonist, O'Brien, in “Nineteen Eighty-Four.” The fictional O'Brien is a powerful government official who uses torture and manipulation to gain power over the thoughts and actions of the protagonist, Winston Smith. Significantly, O'Brien treats his desire for power as an end in itself. O'Brien represents power for power’s sake.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A copy of George Orwell's novel '1984' is displayed at The Last Bookstore on January 25, 2017, in Los Angeles." src="https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415534/original/file-20210810-23-s4p5q4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Orwell’s dystopian novel ‘Nineteen Eighty-Four’ (‘1984’) surged to the top of Amazon.com’s best-sellers list after Donald Trump’s Presidential Inauguration in 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/copy-of-george-orwells-novel-1984-is-displayed-at-the-last-news-photo/632692742?adppopup=true">Justin Sullivan/Getty Images</a></span>
</figcaption>
</figure>
<p>Much of Orwell’s keenest insights concern what totalitarianism is incompatible with. In his 1941 essay “<a href="https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/the-lion-and-the-unicorn-socialism-and-the-english-genius/">The Lion and the Unicorn</a>,” Orwell writes of “The totalitarian idea that there is no such thing as law, there is only power … .” In other words, laws can limit a ruler’s power. Totalitarianism seeks to obliterate the limits of law through the uninhibited exercise of power. </p>
<p>Similarly, in his 1942 essay “<a href="https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/looking-back-on-the-spanish-war/">Looking Back on the Spanish War</a>,” Orwell argues that totalitarianism must deny that there are neutral facts and objective truth. Orwell identifies liberty and truth as “safeguards” against totalitarianism. The exercise of liberty and the recognition of truth are actions incompatible with the total centralized control that totalitarianism requires.</p>
<p>Orwell understood that totalitarianism could be found on the political right and left. For Orwell, both Nazism and Communism were totalitarian.</p>
<p>Orwell’s work, in my view, challenges us to resist permitting leaders to engage in totalitarian behavior, regardless of political affiliation. It also reminds us that some of our best tools for resisting totalitarianism are to tell truths and to preserve liberty. </p>
<h2>What is democratic socialism?</h2>
<p>In his 1937 book “<a href="https://www.theguardian.com/books/2011/feb/20/orwell-wigan-pier-75-years">The Road to Wigan Pier</a>,” Orwell writes that socialism means “justice and liberty.” The justice he refers to goes beyond mere economic justice. It also includes social and political justice. </p>
<p>Orwell elaborates on what he means by socialism in “<a href="https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/the-lion-and-the-unicorn-socialism-and-the-english-genius/">The Lion and the Unicorn</a>.” According to him, socialism requires “approximate equality of incomes (it need be no more than approximate), political democracy, and abolition of all hereditary privileges, especially in education.”</p>
<p>In fleshing out what he means by “approximate equality of incomes,” Orwell later says in the same essay that income equality shouldn’t be greater than a ratio of about 10 to 1. In its modern-day interpretation, this suggests Orwell could find it ethical for a CEO to make 10 times more than their employees, but not to make 300 times more, <a href="https://aflcio.org/press/releases/average-sp-500-company-ceo-worker-pay-ratio-rises-299-1-2020">as the average CEO in the United States does today</a>.</p>
<p>But in describing socialism, Orwell discusses more than economic inequality. Orwell’s writings indicate that his preferred conception of socialism also requires “political democracy.” As <a href="https://www.english.ox.ac.uk/people/dr-david-dwan#/">scholar David Dwan</a> has noted, Orwell distinguished “<a href="https://global.oup.com/academic/product/liberty-equality-and-humbug-9780198738527?cc=us&lang=en&">two concepts of democracy</a>.” The first concept refers to political power resting with the common people. The second is about having classical liberal freedoms, like freedom of thought. Both notions of democracy seem relevant to what Orwell means by democratic socialism. For Orwell, democratic socialism is a political order that provides social and economic equality while also preserving robust personal freedom. </p>
<p>I believe Orwell’s description of democratic socialism and his recognition that there are various forms socialism can take remain important today given that American political dialogue about socialism often overlooks much of the nuance Orwell brings to the subject. For example, Americans <a href="https://www.independent.co.uk/news/world/americas/do-you-know-difference-between-communist-and-socialist-a6708086.html">often confuse socialism with communism</a>. Orwell helps clarify the difference between these terms.</p>
<p>With <a href="https://www.pewresearch.org/fact-tank/2020/02/07/6-facts-about-economic-inequality-in-the-u-s/">high levels of economic inequality</a>, <a href="https://www.washingtonpost.com/lifestyle/media/new-study-says-trump-has-dangerously-undermined-truth-with-attacks-on-news-media/2020/04/15/4152f81c-7f2d-11ea-9040-68981f488eed_story.html">political assaults on truth</a> and <a href="https://www.washingtonpost.com/opinions/global-opinions/totalitarian-ideologies-never-die-not-even-in-america/2017/11/03/3d39648e-c09c-11e7-959c-fe2b598d8c00_story.html">renewed concerns about totalitarianism</a>, Orwell’s ideas remain as relevant now as they were 75 years ago.</p>
<p>[<em>Explore the intersection of faith, politics, arts and culture.</em> <a href="https://theconversation.com/us/newsletters/this-week-in-religion-76/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=religion-explore">Sign up for This Week in Religion.</a>]</p><img src="https://counter.theconversation.com/content/165431/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>George Orwell’s “Animal Farm” was an instant success when it was first published. His writings on totalitarianism and socialism continue to be relevant today.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1649172021-07-22T13:24:22Z2021-07-22T13:24:22ZSpyware: why the booming surveillance tech industry is vulnerable to corruption and abuse<figure><img src="https://images.theconversation.com/files/412661/original/file-20210722-23-1582yi3.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C7329%2C3628&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/man-finger-clicks-on-open-padlock-1934920949">Zoomik/Shutterstock</a></span></figcaption></figure><p>The world’s most sophisticated commercially available spyware may be being abused, according to <a href="https://amp.theguardian.com/world/2021/jul/18/revealed-leak-uncovers-global-abuse-of-cyber-surveillance-weapon-nso-group-pegasus">an investigation</a> by 17 media organisations in ten countries. <a href="https://www.independent.co.uk/world/pegasus-spyware-nso-activists-journalists-b1886317.html">Intelligence leaks</a> and <a href="https://www.amnesty.org/en/latest/news/2021/07/amnesty-categorically-pegasus-project-data-linked-to-nso/">forensic phone analysis</a> suggests the surveillance software, called <a href="https://www.theguardian.com/news/2021/jul/18/what-is-pegasus-spyware-and-how-does-it-hack-phones">Pegasus</a>, has been <a href="https://www.theguardian.com/news/2021/jul/19/nso-clients-spying-disclosures-prompt-political-rows-across-world">used to target</a> and spy on the phones of human rights activists, investigative journalists, politicians, researchers and academics. </p>
<p>NSO Group, the Israeli cyber intelligence firm behind Pegasus, insists that it only licenses its spyware to <a href="https://www.nsogroup.com/Newses/cyber-intelligence-sector-leader-nso-group-unveils-the-industrys-first-transparency-and-responsibility-report/">vetted government clients</a> in the name of combating transnational crime and terrorism. It has labelled reports from investigative journalists a “<a href="https://www.nsogroup.com/Newses/enough-is-enough/">vicious and slanderous campaign</a>” upon which it will no longer comment.</p>
<p>Yet the founder and chief executive of NSO Group <a href="https://www.theguardian.com/news/2021/jul/19/fifty-people-close-mexico-president-amlo-among-potential-targets-nso-clients">previously admitted</a> that “in some circumstances our customers might misuse the system.” Given that the group has sold its spyware to a reported <a href="https://www.theguardian.com/world/2021/jul/18/revealed-leak-uncovers-global-abuse-of-cyber-surveillance-weapon-nso-group-pegasus">40 countries</a>, including some with poor records of <a href="https://www.theguardian.com/news/audio/2021/jul/21/the-pegasus-project-part-3-cartels-corruption-and-cyber-weapons-podcast">corruption</a> and <a href="https://observatoryihr.org/news/spyware-leak-reveals-pegasus-was-used-to-hack-human-rights-activists-journalists-and-lawyers-globally/">human rights violations</a>, it’s alleged that Pegasus has been significantly misused, undermining the freedom of the press, freedom of thought and free and open democracies.</p>
<p>These revelations are the latest indication that the spyware industry is out of control, with licensed customers free to spy on political and civilian targets as well as suspected criminals. We may be heading to a world in which <a href="https://www.theguardian.com/news/2021/jul/19/edward-snowden-calls-spyware-trade-ban-pegasus-revelations">no phone is safe</a> from such attacks. </p>
<h2>How Pegasus works</h2>
<p>Pegasus is regarded as the <a href="https://theconversation.com/how-does-the-pegasus-spyware-work-and-is-my-phone-at-risk-164781">most advanced spyware</a> on the market. It can infiltrate victims’ devices without their even having to click a malicious link – a so-called “<a href="https://cybersecurity-journal.com/2020/08/14/demystifying-zero-click-attacks/">zero-click attack</a>”. Once inside, the power Pegasus possesses to transform a phone into a surveillance beacon is astounding. </p>
<p>It immediately sets to work copying messages, pictures, videos and downloaded content to send to the attacker. As if that’s not insidious enough, Pegasus can record calls and track a target’s location while independently and secretly activating a phone’s camera and microphone. With this capability, an infected phone acts like a fly on the wall, seeing, hearing and reporting back the intimate and sensitive conversations that it <a href="https://www.theguardian.com/news/2021/jul/18/what-is-pegasus-spyware-and-how-does-it-hack-phones">watches continuously</a>.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-does-the-pegasus-spyware-work-and-is-my-phone-at-risk-164781">How does the Pegasus spyware work, and is my phone at risk?</a>
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<p>There’s previous evidence of Pegasus misuse. It was implicated in the <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25488&LangID=E">alleged hacking</a> of Jeff Bezos’ phone by the crown prince of Saudi Arabia in 2018. The following year, it was revealed that several <a href="https://www.huffpost.com/archive/in/entry/did-indian-govt-buy-pegasus-spyware-home-ministry-answer-is-worrying_in_5dd3bbb1e4b082dae813a058">Indian lawyers and activists</a> had been targeted by a Pegasus attack via WhatsApp. </p>
<p>The new revelations suggest that Pegasus was used to watch Mexico’s president Andres Manuel Lopez and <a href="https://www.theguardian.com/news/2021/jul/19/fifty-people-close-mexico-president-amlo-among-potential-targets-nso-clients">50 members</a> of his inner circle – including friends, family, doctors, and aides – when he was an opposition politician. Pegasus has also been linked to the <a href="https://www.theguardian.com/news/2021/jul/19/modi-accused-treason-opposition-india-spyware-disclosures">surveillance of Rahul Gandhi</a>, the current political rival to Indian prime minister Narendra Modi. </p>
<p>A Pegasus infiltration has also now <a href="https://www.theguardian.com/world/2021/jul/18/nso-spyware-used-to-target-family-of-jamal-khashoggi-leaked-data-shows-saudis-pegasus">been found</a> among phones belonging to the family and friends of <a href="https://www.bbc.com/news/world-europe-45812399">murdered journalist</a> Jamal Khashoggi, and there are indications that Pegasus may also have been <a href="https://www.theguardian.com/news/2021/jul/18/revealed-murdered-journalist-number-selected-mexico-nso-client-cecilio-pineda-birto">used by a Mexican NSO client</a> to target the Mexican journalist Cecilio Pineda Birto, who was <a href="https://rsf.org/en/news/mexico-reporters-murder-revives-debate-about-effectiveness-protection">murdered</a> in 2017.</p>
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<h2>Spyware industry</h2>
<p>Although the power of Pegasus is shocking, spyware in its various forms is far from a new phenomenon. Basic spyware can be traced back to <a href="https://www.sciencedirect.com/science/article/pii/B9780444516084500250">the early 1990s</a>. Now it’s a <a href="https://www.economist.com/business/2019/12/12/offering-software-for-snooping-to-governments-is-a-booming-business">booming industry</a> with thousands of eager buyers. </p>
<p>At the base of the spyware industry are the lesser snooping tools, sold for as little as $70 (£51) <a href="https://www.techrepublic.com/article/how-much-malware-tools-sell-for-on-the-dark-web/">on the dark web</a>, which can remotely access webcams, log computer keystrokes and harvest location data. The use of such spyware by <a href="https://www.bbc.co.uk/news/technology-50166147">stalkers and abusive partners</a> is a growing, concerning issue.</p>
<p>Then of course there’s the <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">global surveillance estate</a> that Edward Snowden lifted the curtain on in 2013. His leaks revealed how <a href="https://www.wired.com/story/edward-snowden-in-his-own-words-why-i-became-a-whistle-blower/">surveillance tools</a> were being used to amass a volume of citizens’ personal data that seemed to go well beyond the brief of the intelligence agencies using them.</p>
<p>In 2017, we also learned how a secret team of elite programmers at the US National Security Agency had developed an advanced cyber-espionage weapon called <a href="https://www.wired.co.uk/article/what-is-eternal-blue-exploit-vulnerability-patch">Eternal Blue</a>, only for it to be stolen by the hacker collective Shadow Brokers and <a href="https://www.wired.com/story/eternalblue-leaked-nsa-spy-tool-hacked-world/">sold on the dark web</a>. It was this spyware that would later be used as the backbone of the infamous 2017 <a href="https://www.cbsnews.com/news/wannacry-ransomware-attacks-wannacry-virus-losses/">Wannacry ransomware attack</a>, which <a href="https://www.nao.org.uk/report/investigation-wannacry-cyber-attack-and-the-nhs/">targeted the NHS</a> and hundreds of other organisations.</p>
<h2>Why Pegasus is different</h2>
<p>When the Snowden leaks were published, many were shocked to learn of the scale of surveillance that digital technologies had enabled. But this mass spying was at least developed and conducted within state intelligence agencies, who had some legitimacy as agents of espionage.</p>
<p>We’re no longer debating the right of the state to violate our own rights to privacy. The Pegasus revelations show we’ve arrived in a new, uncomfortable reality where highly sophisticated spyware tools are <a href="https://www.wired.com/story/the-murky-merits-of-a-private-spy-registry/">sold on an open market</a>. To be under no illusion, we’re referring here to an industry of for-profit malware developers creating and selling the same types of tools – and sometimes the very same tools – used by “bad hackers” to bring businesses and government organisations to their knees.</p>
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Read more:
<a href="https://theconversation.com/spyware-merchants-the-risks-of-outsourcing-government-hacking-80891">Spyware merchants: the risks of outsourcing government hacking</a>
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<p>In the wake of the Pegasus revelations, Edward Snowden has called for an <a href="https://www.theguardian.com/news/2021/jul/19/edward-snowden-calls-spyware-trade-ban-pegasus-revelations">international spyware ban</a>, stating that we’re moving towards a world where no device is safe. That will certainly be the case if Pegasus meets the same fate as Eternal Blue, with its source code finding its way onto the dark web for use by criminal hackers.</p>
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<p>We’ve only just begun to fully contemplate the full implications of Pegasus on our collective privacy and democracy. Without transparency, we have no sense of how and under what circumstances Pegasus is licensed, who has authorisation to use Pegasus once it’s licensed, under what circumstances a license may be revoked, or what international regulations are in place to police against its abuse. Evidence suggests that Pegasus has been misused and greater accountability and oversight is needed. We must also seek to rekindle important debates around enforceable controls on the creation and sale of corporate spyware. Without this, the threat that Pegasus and future spyware tools pose to privacy will not be limited to the high-profile targets that have so far been revealed, but will be a threat to us all.</p><img src="https://counter.theconversation.com/content/164917/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Kemp does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Revelations of spyware abuse suggest we’re moving to a new reality in which no phone is safe from surveillance.Christian Kemp, Lecturer, Criminology, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1648902021-07-21T18:54:58Z2021-07-21T18:54:58ZOfficial Secrets Act: home secretary’s planned reform will make criminals out of journalists<p>The UK government has proposed <a href="https://www.gov.uk/government/consultations/legislation-to-counter-state-threats">new legislation</a> to counter state threats, including an overhaul of the Official Secrets Act. According to the Home Office, the new legislation <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/986013/Consultation_Document_-_Legislation_to_Counter_State_Threats.pdf">is necessary</a> because “the existing legislation does not sufficiently capture the discernible and very real threat posed by state threats”.</p>
<p>If passed, this new legislation has <a href="https://www.pressgazette.co.uk/official-secrets-act-reform-harsher-penalties-for-journalists/">serious consequences for journalism</a> and its ability to hold governments to account. This is because the proposed bill includes a major crackdown on “unauthorised disclosures”, or leaks of sensitive information. </p>
<p>Much hard-hitting investigative journalism is based on such leaks. High-profile examples of stories based on unauthorised disclosures include <a href="https://ijoc.org/index.php/ijoc/article/view/5521">Edward Snowden’s revelations</a> in 2013 of the <a href="https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1">activities of US and UK spy agencies</a>, including major global surveillance programmes, in 2013. The leaks led to a broader debate about the role of the state in facilitating mass surveillance. </p>
<p>Unauthorised disclosures also paved the way for the <a href="https://www.belfasttelegraph.co.uk/news/uk/the-duck-house-the-moat-and-the-toaster-a-decade-of-dodgy-expenses-claims-37941047.html">2009 MPs’ expenses scandal</a>. This provided evidence of widespread abuse of the parliamentary expenses system, including MPs taking advantage of a generous second home allowance, and charging the public purse for £1,700 floating duck houses and £2,000 for moat cleaning. </p>
<p>These leaks brought to light important information in the public interest, and led to widespread resignations and <a href="https://www.bbc.co.uk/news/uk-politics-48187096">legislative and policy change</a>, including the establishment of the Independent Parliamentary Standards Authority.</p>
<p>The Official Secrets Act has been used in the past to prosecute individuals responsible for disclosing sensitive information. For example, <a href="https://www.theguardian.com/uk/2002/nov/04/davidshayler.richardnortontaylor">David Shayler</a>, an MI5 agent, was found guilty of releasing documents about the spy agency’s activities to the Daily Mail in 1997. </p>
<p>However, as the Home Office consultation makes clear, the proposed law enables harsher punishments for journalists and their sources. In a remarkable twist, it equates investigative journalism <a href="https://www.theguardian.com/commentisfree/2021/jul/20/proposed-secrecy-law-journalism-spying-home-office-public-interest-whistleblowing">with spying</a>. The consultation suggests that the Home Office does “not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures”.</p>
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<p>At the same time, the Home Office takes a dim view of the need to protect journalists. In response to the Law Commission’s proposal to introduce a <a href="https://www.matrixlaw.co.uk/wp-content/uploads/2020/12/Introducing-a-Public-Interest-Disclosure-Defence-amended-version.pdf">“public interest” defence</a> which would provide protection to journalists, the consultation document argues that “these proposals could in fact undermine our efforts to prevent damaging unauthorised disclosures”.</p>
<p>To highlight the serious threat posed by such disclosure, it proposes an increase in prison terms for such offences, from two years and up to 14 years. </p>
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<p>This represents a direct threat to the ability of journalists and their sources to make public information about wrongdoing in the public interest.</p>
<h2>Press freedom under threat</h2>
<p>The legislation arrives at a fraught moment for press freedom around the world. Recent years have seen growing <a href="https://www.cogitatiopress.com/mediaandcommunication/article/view/2873">physical and legal threats</a> to journalists, against the backdrop of a rise of authoritarian and populist regimes. In that context, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1706688">national security laws</a> often provide the grounds for prosecution of journalists and others who may hold governments to account. </p>
<p>Over the past two decades, scholars have identified the rise of “<a href="https://books.google.co.uk/books?hl=en&lr=&id=GHO493HCDXQC&oi=fnd&pg=PA277&dq=securitization+surveillance&ots=G2f23bN_ZE&sig=uTYzZZ6wdoW8CPZqeavGIECakV4&redir_esc=y#v=onepage&q=securitization%20surveillance&f=false">securitisation</a>” – a process whereby claims about national security come to override any other concerns, and are used widely to limit the scope for dissent and challenge. </p>
<p>The new law should be seen as part of a broader project on the part of Priti Patel’s Home Office to cut down civil liberties by legislative means. For example, the <a href="https://www.bigissue.com/latest/social-activism/how-priti-patels-new-policing-bill-threatens-your-right-to-protest/">Police, Crime, Sentencing and Courts Bill</a>, which was recently passed in Parliament, allows for police to shut down protests in England and Wales at will. </p>
<p>Such laws are not merely pieces of paper. Instead, they are frequently used to crack down on critical voices. In 2019, 15 activists were convicted of a terrorism offence after chaining themselves around an immigration removal flight at Stansted Airport. While the conviction was later <a href="https://www.bbc.co.uk/news/uk-england-essex-55859455">overturned</a>, the case highlighted the potential for creative and politically charged interpretations of security-related laws. </p>
<p>The Official Secrets Act reforms, if passed, are likely to have a significant chilling effect on journalists and their sources. As <a href="https://www.tandfonline.com/doi/full/10.1080/21670811.2016.1251329?casa_token=gr0JuBrJr18AAAAA%3AQvJgnyJrc3fJmQO-lCzYCeNcYrhauqXmTxmvmzOpr3wBdGt2qcn6T5X0nxYezcgoxtujUL0ulpQ-Mw">research</a> has shown, the threat of prosecution and prison makes sources more reluctant to share sensitive information in the public interest, and makes journalists less likely to pursue such information in the first place. </p>
<p>The Home Office has responded to concerns about the chilling effect of the proposed legislation, stressing that journalists will “remain free to hold the Government to account.”</p><img src="https://counter.theconversation.com/content/164890/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karin Wahl-Jorgensen received funding in 2009 from Public Concern at Work, the whistleblowing charity (now re-named Protect) to investigate the media representation of whistleblowers. Between 2014 and 2016, she was a co-investigator on the project, "Digital Citizenship and Surveillance Society: UK State-Media-Citizen Relations after the Snowden Leaks,” funded by the Economic and Social Research Council. </span></em></p>Public interest disclosures are necessary in a functioning democracy. These reforms would make it harder to hold power to account.Karin Wahl-Jorgensen, Professor and Director of Research Development and Environment, School of Journalism, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1243242019-09-28T01:26:53Z2019-09-28T01:26:53ZIntelligence whistleblowers often pay a severe price<figure><img src="https://images.theconversation.com/files/294456/original/file-20190926-51457-91camu.jpg?ixlib=rb-1.1.0&rect=50%2C25%2C5615%2C3707&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Blowing the whistle carries major risks.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/men-whistle-coach-on-black-background-148161491">BlueSkyImage/Shutterstock.com</a></span></figcaption></figure><p>When President Donald Trump <a href="https://www.nytimes.com/2019/09/26/us/politics/trump-whistle-blower-spy.html">likened a whistleblower’s White House sources to spies</a> and made a <a href="https://www.theguardian.com/us-news/live/2019/sep/26/donald-trump-ukraine-live-news-latest-us-politics">lightly veiled reference to execution</a>, he highlighted a <a href="https://www.nytimes.com/2019/09/26/us/politics/who-is-whistleblower.html">longstanding peril</a> facing those who come forward to <a href="https://www.npr.org/2019/09/25/764010989/whistleblowing-is-really-in-our-dna-a-history-of-reporting-wrongdoing">alert the public to governmental wrongdoing</a>. </p>
<p>In many instances, whistleblowers find the abusive power they have revealed turned against them, both <a href="https://ssrn.com/abstract=3129731">ending their careers</a> and <a href="http://dx.doi.org/10.1016/j.copsyc.2015.07.005">harming their personal lives</a>.</p>
<p>In the private sector, whistleblowers are often ignored and told their concern is not part of their job description – and are commonly <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320229">retaliated against by being demoted or fired</a>. </p>
<p>When a whistleblower is in the U.S. intelligence and national security sphere, they’re often speaking out about misdeeds by powerful figures – and, as a result, have frequently faced <a href="https://www.jstor.org/stable/24332319">death threats, physical attacks, prosecution and prison</a>. </p>
<p>The new whistleblower report that alleges wrongdoing by the president is a reminder of the vital importance of holding wrongdoers accountable, regardless of their level of power. When those acts affect national security, whistleblowing is even more important. But as I’ve found in my whistleblowing research, whistleblowers in this arena have far fewer legal protections from retaliation than those in corporate settings or elsewhere in government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=368&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=368&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=368&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=462&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=462&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294458/original/file-20190926-51414-1eb57ps.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=462&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">From left, NSA whistleblowers Thomas Drake, William Binney and Kirk Wiebe, who all alleged retaliation from the government.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/10814044@N06/36133945105/">Rob Kall/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<h2>Targets of retaliation</h2>
<p>The consequences for government whistleblowers in the last 20 years have been harsh, in part because laws about classified information have made it difficult for people to publicize wrongdoing on sensitive issues.</p>
<p>After <a href="https://www.whistleblower.org/bio-william-binney-and-j-kirk-wiebe/">William Binney and J. Kirk Wiebe</a> alleged in 2002 that their employer, the National Security Agency, <a href="https://www.usatoday.com/story/news/politics/2013/06/16/snowden-whistleblower-nsa-officials-roundtable/2428809/">mismanaged intelligence-gathering software</a> that potentially could have prevented 9/11, their homes were raided and ransacked by the FBI as their families watched. Ultimately, the NSA <a href="https://www.whistleblower.org/bio-william-binney-and-j-kirk-wiebe/">revoked their security clearances</a> and they were forced to <a href="https://www.baltimoresun.com/latest/bs-md-nsa-property-response-20120119-story.html">sue to recover</a> the confiscated personal property. </p>
<p>Another NSA whistleblower, <a href="https://www.whistleblower.org/bio-thomas-drake/">Thomas Drake</a>, alleged in 2002 that the agency’s mass-surveillance programs after 9/11 involved fraud, waste and violations of citizens’ rights. He became the subject of <a href="https://www.smithsonianmag.com/history/leaks-and-the-law-the-story-of-thomas-drake-14796786/">one of the biggest government leak investigations of all time</a> and was prosecuted for espionage, which he ultimately settled through a plea agreement.</p>
<p>A third NSA whistleblower, <a href="https://www.newyorker.com/magazine/2019/09/23/edward-snowden-and-the-rise-of-whistle-blower-culture">Edward Snowden</a> has spent years in exile, <a href="https://www.express.co.uk/news/world/1178975/edward-snowden-location-where-is-edward-snowden-usa-russia-asylum">fearing an unfair trial</a> should he return to the U.S. </p>
<p>Former Army intelligence analyst <a href="https://www.npr.org/2019/05/17/724133556/chelsea-manning-sent-back-to-jail-for-refusing-to-testify-before-grand-jury">Chelsea Manning</a> has spent years in federal prison for <a href="https://time.com/4768943/chelsea-manning-release-prison/">releasing classified documents</a> regarding U.S. military operations in Iraq and Afghanistan. </p>
<p>Difficult consequences can come not just from the government but also from the public and the media. The New York Times has <a href="https://www.nytimes.com/2019/09/26/reader-center/whistle-blower-identity.html">come under criticism</a> for <a href="https://www.nytimes.com/2019/09/26/us/politics/who-is-whistleblower.html">revealing identifying details</a> about the current whistleblower’s position.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=302&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=302&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=302&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=379&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=379&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294576/original/file-20190927-185407-9haky3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=379&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Edward Snowden and Chelsea Manning.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Edward_Snowden-2.jpg">Composite from Laura Poitras and Tim Travers Hawkins/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Few protections</h2>
<p>Most laws governing federal whistleblowers lay out a procedure for coming forward with concerns, offer protections for confidentiality, and prevent recipients of information from harassing, threatening, demoting, firing or discriminating against the person raising the complaint. </p>
<p><a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title15/pdf/USCODE-2011-title15-chap2B-sec78u-6.pdf">Whistleblowers reporting securities law violations</a> to the Securities and Exchange Commission have those protections. So do whistleblowers who <a href="https://www.whistleblowers.org/faq/false-claims-act-qui-tam">report on fraudulent billing or claims against the government</a>, such as Medicare or Medicaid fraud.</p>
<p>It can be difficult to find a balance between the government’s need to protect highly sensitive classified information and the public’s interest in uncovering wrongdoing. As a result, protections for whistleblowers in the intelligence community lack robust protections. The <a href="https://www.congress.gov/bill/105th-congress/house-bill/3829">Intelligence Community Whistleblower Protection Act of 1998</a> outlines a process for whistleblowers in the intelligence community to raise concerns, but doesn’t explicitly protect the whistleblower from retaliation or being publicly identified. Two <a href="https://web.archive.org/save/https://www.dni.gov/index.php/ic-legal-reference-book/presidential-policy-directive-19">executive-branch</a> <a href="https://web.archive.org/web/20190926150726/https://www.dni.gov/files/documents/ICD/ICD%20120.pdf">directives</a>, created during the Obama administration, do bar retaliation against whistleblowers. However, they create a conflict of interest, because the person who determines whether there has been retaliation may be the person doing the retaliating. </p>
<p>Those Obama-era directives also prevent the whistleblower from seeking an independent court’s review. They do not specify whether and exactly how aggrieved whistleblowers are entitled to back pay or reinstatement of employment, which are common whistleblower remedies. </p>
<p>It’s no surprise, then, that in the first 10 years after the Intelligence Community Whistleblower Protection Act was enacted, <a href="https://fas.org/irp/dni/icig/icwpa-use.pdf">no intelligence whistleblower was compensated for retaliation</a>. While there have been no subsequent inquiries or information to determine whether intelligence whistleblowers have fared better since 2009, the law as it stands makes it nearly impossible for them to be protected. </p>
<p>Whistleblowers bring <a href="https://time.com/5684536/whistleblower-history/">much-needed attention</a> to matters of interest and importance to the public. Their courage – and willingness to face professional and personal peril – helps bring to light information that others would prefer to keep secret. That helps society as a whole fight injustice, waste, corruption and abuse of power, rather than <a href="https://www.nytimes.com/2007/01/18/opinion/18herbert.html">passively and blindly accepting it</a>.</p><img src="https://counter.theconversation.com/content/124324/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer M. Pacella once received research funding from the Professional Staff Congress (PSC)-City University of New York research award program as part of that university's encouragement and support of research.</span></em></p>In many instances, whistleblowers find the abusive power they have revealed turned against them, both ending their careers and harming their personal lives.Jennifer M. Pacella, Assistant Professor of Business Law and Ethics, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1240512019-09-25T10:05:24Z2019-09-25T10:05:24ZHow Edward Snowden could lose his book royalties to the US government – legal precedent is not on his side<p>One of the key concepts in every justice system is that someone who commits a crime should not benefit from any profits that result from it. The concept holds true whether we are talking about a criminal offence (for example selling stolen goods) or a civil wrong (like benefiting from a breach of contract). </p>
<p>In a similar fashion, there is an expectation that the wrongdoer should not write a book talking about how he went about committing the acts in question. Yet this is what Edward Snowden has done with his recently published autobiography. He’s not the first to do something like this – but that’s not going to stop the US from trying to prosecute him.</p>
<p>Snowden is the world’s most famous <a href="https://www.vanityfair.com/news/politics/2014/05/edward-snowden-politics-interview">whistleblower</a>. While working as a contractor for the US National Security Agency, Snowden stole and proceeded to release thousands of secret documents in 2013. His actions opened a <a href="https://www.theguardian.com/us-news/edward-snowden">pandora’s box of consequences</a> for American intelligence agencies, the US government and its allies (and foes) around the world. </p>
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<img alt="" src="https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293823/original/file-20190924-51429-u3l7e2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Snowden’s leak caused the US government a major headache.</span>
<span class="attribution"><span class="source">Rena Schild / Shutterstock.com</span></span>
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<p>Snowden was duly <a href="https://www.washingtonpost.com/world/national-security/us-charges-snowden-with-espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story.html">prosecuted</a> by the US authorities for espionage. But instead of returning to his homeland to face the charges, he <a href="https://edition.cnn.com/2013/09/11/us/edward-snowden-fast-facts/index.html">fled</a> to Russia, where he has remained ever since.</p>
<p>Now Snowden’s memoir, <a href="https://www.theguardian.com/books/2019/sep/14/permanent-record-edward-snowden-review">Permanent Record</a>, has been published by Macmillan. The US government is, as expected, incensed at the idea that a man they consider to be a spy and a traitor penned something that could well be on the international bestseller lists. </p>
<p>Instead of going down the route of trying to ban the book, which would have been difficult domestically (as the information is already in the public domain) and pointless internationally, the US authorities have tried something else. They are <a href="https://www.nytimes.com/2019/09/17/us/politics/edward-snowden-memoir-lawsuit.html">suing</a> the publisher Macmillan, seeking to seize any profits. </p>
<p>Drawing on the concept of no benefit from wrongdoing, they are <a href="https://int.nyt.com/data/documenthelper/1707-snowden-complaint/3ba296a20a92af9ca508/optimized/full.pdf#page=1">arguing</a> that Snowden is in breach of his contractual obligations to the US government (from the time he was employed with them) for not providing the manuscript to the authorities for approval before publication.</p>
<h2>Legal precedent</h2>
<p>Not only is this clever, it has happened before in almost exactly the same way with a British spy. George Blake was an officer for the British secret intelligence services who worked as a double agent for the Soviet Union after the Korean War and fed information to the Soviets that led to a number of deaths. Despite being convicted and imprisoned by the British in 1961, he managed to escape to Russia in 1966, where he still lives. His autobiography <a href="https://www.bookdepository.com/No-Other-Choice-George-Blake/9780224030670">No Other Choice</a> was published in 1990.</p>
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<img alt="" src="https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293827/original/file-20190924-51405-y88qoc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">British spy and KGB double agent, George Blake.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/George_Blake#/media/File:George_Blake_spy.jpg">Wikipedia</a></span>
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<p>The British government considered Blake’s book to be a breach of contract for including within it information which he had sworn that he would not divulge. The courts agreed with the government and Blake failed in his attempt to recover £90,000 in royalties from his British publisher. The court <a href="https://www.theguardian.com/uk/2000/jul/28/books.booksnews">ruled</a> that he could not be allowed to profit “by doing the very thing he had promised not to do” and indeed should be deprived of his profits, even though the contents of the books were no longer confidential and the crown had suffered no loss that would require compensation.</p>
<p>Will Edward Snowden suffer the same fate? The issues here are a mix of the legal and the political. The legal aspect is perhaps the easier one. No matter what your views are of Blake and Snowden, they have breached their obligations to their employers. </p>
<p>While one may not believe that the British secret services were better than the KGB or that the NSA is a force for good in the world, it is difficult to legally deny the content of a signed non-disclosure agreement. Both authors are perpetrators of wrongdoing – they breached their contracts – and should not benefit from any resulting proceeds. Their employers have a legitimate interest to prevent their unjust enrichment.</p>
<p>The political question is more challenging. Is this US lawsuit an assault on free speech? If a government lacks the ability to ban a publication, should it be allowed to hinder the publication of embarrassing information by taking the profits from the hands of authors or their publishers? Who is unjustly enriched in this case, Snowden or the US government? </p>
<p>Those who see Edward Snowden as a freedom fighter who performed a global public service at great personal cost will be dismayed by this lawsuit and its chances of success. Those of us who teach contract law, however, cannot escape the appeal of a court judgement based on respect for a deal. Having breached his deal, Snowden will now face the consequences.</p><img src="https://counter.theconversation.com/content/124051/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ioannis Glinavos does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US government wants to seize all the proceeds from Snowden’s new memoir.Ioannis Glinavos, Senior Lecturer in Law, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1127312019-02-28T17:39:42Z2019-02-28T17:39:42ZWhat Michael Cohen’s betrayal reveals about our messed-up workplace loyalties<p>During Michael Cohen’s Feb. 27 testimony, Republican Rep. Paul Gosar asked the former Trump lawyer and fixer about <a href="https://www.cnn.com/politics/live-news/michael-cohen-testimony/h_044a5c0e515ed4ef391bf099e64c2f84">his legal duties to the president</a>. </p>
<p>“I’m sure you remember, maybe you don’t remember, duty of loyalty, duty of confidentiality, attorney-client privilege,” he said, implying that Cohen’s testimony was a betrayal of his former employer. </p>
<p>It was the ultimate betrayal. </p>
<p>Besides detailing allegations of wrongdoing, Cohen went out of his way to repudiate Trump, calling him a “racist,” “con man” and “cheat.” Like a rueful divorcee, Cohen <a href="https://www.politico.com/f/?id=00000169-2d31-dc75-affd-bfb99a790001">recounted</a> one Trump-related misdeed after another, repeating “and yet, I continued to work for him.” </p>
<p>I have spent the last nine months working on a book about the duties we owe to our employers and how they’ve changed over time. For me, there was something familiar – albeit extreme and repugnant – about Cohen’s initial loyalty and eventual public rebuke of the most famous boss in the country.</p>
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<h2>Loyalty first</h2>
<p>The duty of loyalty is the idea that you should not cheat, rob, undermine or disclose the secrets of the person or entity you represent. This duty is <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/">especially strong</a> for lawyers, because the acts they undertake on behalf of their clients are binding upon their clients, sometimes in life-altering ways.</p>
<p>But the duty of loyalty <a href="https://www.ali.org/publications/show/employment-law/">also applies</a> to most employees as part of their employment relationship. And the duty of loyalty is deeply embedded in both our legal and social fabric. In fact, New York still follows a legal concept known as the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1777082">“faithless servant” doctrine</a>, which allows companies to recover wages paid to an employee proven to have been disloyal.</p>
<p>Cohen’s testimony was a stunning reversal from his past professions of devotion. In 2017, Cohen <a href="https://www.vanityfair.com/news/2017/09/michael-cohen-interview-donald-trump">told Vanity Fair</a> that he turned down a US$10 million book offer, insisting “There’s no money in the world that could get me to disclose anything about them.” In that <a href="https://www.vanityfair.com/news/2017/09/michael-cohen-interview-donald-trump">same interview</a>, Cohen said, “I’m the guy who stops the leaks. I’m the guy who protects the president and the family. I’m the guy who would take a bullet for the president.” </p>
<p>He didn’t end up taking a bullet. But he did incur a <a href="https://www.politico.com/story/2018/12/12/cohen-sentenced-to-3-years-in-prison-1060060">prison sentence</a> for criminal conduct, some of which was done on the president’s behalf and, according to Cohen, behest. </p>
<h2>Faithful servants</h2>
<p>We’re in a weird time when it comes to our relationships with our employers, which, like Cohen, reflect strong attachment and loyalty. </p>
<p>At a time when <a href="https://news.gallup.com/poll/1597/confidence-institutions.aspx">trust in many institutions</a> – like the federal government, the church, the medical system and the media – <a href="http://www.people-press.org/2018/04/26/the-public-the-political-system-and-american-democracy/">is quite low</a>, Americans trust their employer above all. </p>
<p>A survey by the Edelman group found that <a href="https://www.edelman.com/trust-barometer">80 percent of the Americans</a> they surveyed trust their employer, and at higher rates than many countries in Europe. Americans have also been staying with their employer longer, <a href="https://www.forbes.com/sites/davidsturt/2016/01/13/true-or-false-employees-today-only-stay-one-or-two-years/#665e95bb6b4c">rising from a median of 3.5 years</a> in 1983 to 4.6 years today. </p>
<p>We also tend to worship work, as Derek Thompson <a href="https://www.theatlantic.com/ideas/archive/2019/02/religion-workism-making-americans-miserable/583441/">recently wrote</a> for The Atlantic. <a href="https://www.ey.com/gl/en/about-us/our-people-and-culture/ey-global-study-trust-in-the-workplace">Millennials</a>, despite their reputation, place almost as much trust in the workplace as baby boomers. The internet is replete with content evangelizing <a href="https://www.inc.com/larry-kim/these-24-productivity-tips-will-help-you-start-off-2018-right.html">productivity hacks</a>, <a href="https://www.instagram.com/6amsuccess/?hl=en">work inspiration</a> and the <a href="https://www.inc.com/the-muse/why-should-wake-up-5-am-every-day.html">promise that</a> waking up at 5 a.m. to answer email will be the best thing you’ve never done.</p>
<h2>A trend toward betrayal</h2>
<p>Yet we are also witnessing a countervailing trend – a broader cultural acceptance of those who speak out publicly against their employer. </p>
<p>In the 1980s, <a href="https://scholarship.kentlaw.iit.edu/fac_schol/372/">few state courts</a> offered protection for whistleblowers who exposed wrongdoing at work. Now <a href="https://www.ali.org/publications/show/employment-law/">most states</a> do, and there’s a <a href="http://digitalcommons.unl.edu/lawfacpub/45/">similar</a> <a href="http://digitalcommons.unl.edu/lawfacpub/153/">trend</a> at the federal level.</p>
<p>Courts and politicians are likely following a cultural shift. And with it comes a grudging recognition that whistleblowers – even one as tainted as Cohen – are imperfect, and may be compromised in numerous ways that color but do not necessarily cancel out the public function of their disclosure. </p>
<p>Consider, for example, Edward Snowden, the <a href="https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">former National Security Agency contractor</a> who leaked highly classified information about government surveillance, and fled to Russia. Snowden comes nowhere close to fitting an idealized image of a whistleblower, and he may very well have violated the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>. Yet a <a href="https://poll.qu.edu/national/release-detail?ReleaseID=1930">2013 poll found</a> that more than half of Americans across the political spectrum considered him a whistleblower. </p>
<p>The increased latitude we give whistleblowers is also visible in the whistleblower bounty in the Dodd-Frank financial reform statute. Under the law, whistleblowers get to share <a href="https://www.sec.gov/whistleblower/frequently-asked-questions">up to 30 percent</a> of the amount the U.S. Securities and Exchange Commission recovers for securities fraud.</p>
<p>Americans have, apparently, made peace with the idea that someone with a selfish motive might still have useful information.</p>
<h2>Reconciling the two</h2>
<p>These two countervailing cultural tendencies seem, at first, impossible to reconcile, in the same way that it seems bizarre for Michael Cohen to go from professing an undying loyalty to Trump, to condemning him before Congress, while <a href="https://www.theatlantic.com/politics/archive/2019/02/big-moments-michael-cohen-testimony-congress-trump/583750/">also insisting</a> that “he can and he is doing things that are great.”</p>
<p>Perhaps, as <a href="https://www.politico.com/f/?id=00000169-2d31-dc75-affd-bfb99a790001">some Republican lawmakers argue</a>, he is just a “pathological liar,” with a record of criminal conduct entirely unrelated to the president. But perhaps Cohen is an exaggerated – and highly unflattering – portrait of our noncriminal loyalty to our less famous employers. In other words, the grand public betrayal is made possible by our excess of loyalty. </p>
<p>After all, Cohen wouldn’t have had so many secrets to spill had he not been devoutly loyal to Trump for so long.</p><img src="https://counter.theconversation.com/content/112731/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett made a donation to Hilary Clinton's presidential campaign. She is not a member of any political party.</span></em></p>Cohen’s sudden and stark transformation from ‘blind loyalty’ to utter betrayal says a lot about broader changes in how Americans view their employers.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/816452017-07-31T15:27:34Z2017-07-31T15:27:34ZRisk: Julian Assange film by Laura Poitras blurs the line between film and filmmaker<p>Laura Poitras’s <a href="https://www.theguardian.com/film/2017/jun/29/laura-poitras-wikileaks-film-risk-julian-assange">new documentary, Risk</a>, has all the conspiracy and paranoia you could wish for – much of it behind the camera as well as on screen. The latest film from this Oscar-winning filmmaker, <a href="http://riskfilm.org/">billed as</a> a “personal and intimate” character study of Julian Assange, is arguably more notable for the inside story of its making than it is for any unmasking of the founder of WikiLeaks. </p>
<p>Poitras first unveiled Risk at Cannes in 2016 and critics once again admired – as they had with her Oscar-winning study of Edward Snowden, <a href="https://www.theatlantic.com/politics/archive/2015/02/laura-poitras-citizenfour-edward-snowden-oscar-win/385750/">Citizenfour</a> – her repeated ability to use the camera as a guerrilla weapon in the war against secretive state culture.</p>
<p>Poitras’s “<a href="http://brooklynrail.org/2015/02/film/surveillance-aesthetics-on-laura-poitrass-911-trilogy">surveillance aesthetic</a>” is clearly marked in the movie. She lets images of rainy streets linger in the mind; a walk in the woods is suddenly filled with tension; Assange and his mother in a hotel room is littered with paranoid thriller references. All these images are accompanied by inter-titles: WikiLeaks’ release of classified documents, watchlists, Poitras’s apartment being broken into and more – that are both menacing in their suggestiveness and opaque at the same time.</p>
<p>But the real significance of Risk is not what’s on screen. To the extent that we know Assange at all, revelations appear to be in short supply and little is new or shocking. What is revelatory is how this film’s exposure of surveillance culture is increasingly tangled up in the agendas of its filmmaker and subject – with puzzles and perplexity that can risk clouding viewers’ judgement that threaten to obscure one of the most important issues of our time: state surveillance of the citizenry on a grand scale.</p>
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<p>Two fundamental problems gnaw away at Poitras’s exposé. One is that the film she <a href="http://variety.com/2016/film/reviews/risk-review-julian-assange-wikileaks-laura-poitras-1201778557/">showed at the Cannes film festival</a> in 2016 is not the Risk released in the US and UK this spring and summer. Among other things, Poitras recut the film – inserting a voiceover that reportedly virtually <a href="http://www.laweekly.com/film/laura-poitrass-documentary-risk-wrestles-with-the-truth-of-the-man-with-the-secrets-8185766">rewrites her impressions of Assange</a> and is far more critical than the original. </p>
<p>Poitras periodically filmed Assange between 2011 and 2013. She then diverted her attention towards Snowden and made Citizenfour, only returning to Assange in 2015 and finding “his manner was new to me”. Risk duly records her doubts about the relationship: “It’s a mystery why he trusts me because I don’t think he likes me,” she says at one point in the film – and it’s true that Assange <a href="https://www.theguardian.com/film/2017/jun/29/laura-poitras-wikileaks-film-risk-julian-assange">had been unhappy</a> with the Cannes version of Risk, despite it being reputedly sympathetic towards him.</p>
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<p>Poitras took the film away regardless and layered this new version with more self-absorbed meanderings from Assange and an enhanced focus on the accusations of sexual assault in Sweden that trailed him to London in 2010. A particularly <a href="http://www.thedailybeast.com/wikileaks-founder-julian-assange-is-an-egomaniacal-sexist-creep-in-risk">excoriating scene with Helena Kennedy</a> sees the high-profile barrister attempting to mould Assange’s public language about the accusations while he keeps insisting it is all part of his accusers’ ongoing lesbian conspiracy. “What’s their <a href="https://www.the-pool.com/news-views/latest-news/2017/21/phoebe-luckhurst-on-julian-assange-rape-allegations">lesbian nightclub</a> got to do with the price of fish?” Kennedy asks him in arguably the film’s priceless moment.</p>
<h2>Personal baggage</h2>
<p>The film’s second problem is that it inhabits the same territory as Alex Gibney’s much-praised <a href="https://www.theguardian.com/film/2013/jul/14/we-steal-secrets-wikileaks-review">We Steal Secrets</a> documentary from 2013. Given that so much in Assange’s world is built upon shifting sands, it’s easy to forget Gibney’s earlier movie which – unlike Risk – was dogged by the director’s inability to pin Assange down to an interview. But the critical immediacy of We Steal Secrets is fleshed out by commentary from some of WikiLeaks’ key former personnel, including <a href="https://www.icij.org/journalists/james-ball">James Ball</a> and <a href="https://www.wired.com/2011/02/wikileaks-book/">Daniel Domscheit-Berg</a>, who Poitras neglects in Risk.</p>
<p>Instead she relies on access to Assange’s right-hand spokesperson <a href="http://www.standard.co.uk/lifestyle/london-life/sarah-harrison-the-woman-behind-whistblowers-edward-snowden-and-julian-assange-a3342546.html">Sarah Harrison</a> and his lawyer <a href="http://www.ozy.com/rising-stars/jennifer-robinson-julian-assanges-consigliere/3682">Jennifer Robinson</a> and, most controversially, WikiLeaks’ tech consultant <a href="http://www.rollingstone.com/culture/news/meet-the-american-hacker-behind-wikileaks-20101201">Jacob Appelbaum</a>. Controversial because Appelbaum is someone Poitras admitted to having had an intimate relationship with. Risk’s voiceover confesses that they were “involved briefly in 2014” which resulted in <a href="http://www.newsweek.com/documentary-inside-julian-assange-world-593037">some questioning</a> Poitras’s recollection of the time frame, let alone her objectivity.</p>
<p>Only adding to the subtextual complexities, Appelbaum was then the subject of <a href="https://www.theguardian.com/technology/2016/oct/11/jacob-appelbaum-tor-project-sexual-assault-allegations">sexual assault allegations</a> himself in 2016, including by someone <a href="http://variety.com/2017/film/news/julian-assange-documentary-risk-wikileaks-laura-poitras-1202406948/">Poitras claimed</a> was a friend – and Risk feels obliged to dwell upon these contentions. As a result, Poitras loses much of the film’s main thrust when she indulges in the personal and starts citing Appelbaum’s questions to her about loyalty and betrayal – loyalty to whom and for what, we’re never told.</p>
<h2>Becoming a protagnist</h2>
<p>If Risk’s web of entanglement seems suspicious, it results from such total immersion into Assange’s world that the film stands accused of not knowing where Poitras’ impressions of the WikiLeaks organisation should stop and the verifiable details of their actions must take over. Has Poitras been duped into believing the myths surrounding Assange or is she complicit in reassembling those myths for the film? Here is someone who is no longer chronicler but an active participant in the surveillance war. “In the last two films, I have become more of a protagonist,” she <a href="http://www.independent.co.uk/arts-entertainment/films/features/laura-poitras-interview-julian-assange-documentary-chelsea-manning-wikileaks-edward-snowden-a7820546.html">claimed recently</a>, adding that: “It is very uncomfortable.”</p>
<p>Risk is an intriguing yet frustrating documentary. Poitras tempts us with a gripping finale: <a href="http://www.newsweek.com/wikileaks-trump-twitter-clinton-635506">Assange’s part</a> in Donald Trump’s dramatic US presidential election win. But the conclusion seems more fascinated with Poitras’s and Assange’s falling out over the first version of Risk than it is in WikiLeaks’ part in Russian collusion with Trump. The film’s somewhat illusory climax therefore asks considerable questions of the intent of both filmmaker and film.</p>
<p>In this “golden age” of documentary, Steve Rose <a href="https://www.theguardian.com/film/2017/jun/08/two-sides-to-every-story-whitney-tupac-assange-and-the-trouble-with-making-biopics">recently observed</a> that: “Filmmakers start to outnumber potential subjects” – and the investigative credentials of factual films are surely tested as a result. Poitras, Assange and Risk certainly testify to the age of “alternative facts” and “fake news”. But answers to the big questions about surveillance politics only get more difficult when the distinctions between message and messenger become this blurred.</p><img src="https://counter.theconversation.com/content/81645/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Scott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Poitras’s latest film shows you can get too involved with your subject.Ian Scott, Senior Lecturer in American Studies/Film, University of ManchesterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/789022017-06-15T05:16:26Z2017-06-15T05:16:26ZHow popular culture gets Australian spy work wrong<figure><img src="https://images.theconversation.com/files/173080/original/file-20170609-20835-e8m7rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Unsurprisingly, the Jason Bourne films won't tell you much about ASIO.</span> <span class="attribution"><span class="source">Bourne Supremacy screenshot/Universal</span></span></figcaption></figure><p>The cloak-and-dagger exploits of characters like James Bond and Jason Bourne have shaped our cultural idea of spy work. But these films, made mostly in the US and UK, have little to do with the reality of Australian intelligence.</p>
<p>Public perception of groups like the Australian Signals Directorate (<a href="https://www.asd.gov.au/">ASD</a>), the Australian Security Intelligence Organisation (<a href="https://www.asio.gov.au/">ASIO</a>), the Australian Secret Intelligence Service (<a href="https://www.asis.gov.au/">ASIS</a>), and the Australian Geo-Spatial Intelligence Organisation (<a href="http://www.defence.gov.au/ago/">AGO</a>) is tied intimately with their overseas counterparts, and particularly their portrayals on the silver screen.</p>
<p>Take the <a href="http://www.imdb.com/title/tt0258463/">Bourne movies</a> (2002-16) and <a href="http://www.imdb.com/title/tt1790885/">Zero Dark Thirty</a> (2012), the latter of which offers a controversially dramatised account of the hunt for Osama bin Laden. Both have cast intelligence in a sinister light. </p>
<p>The United States’ use of torture, shown in film through images of waterboarding and other forceful techniques, has sullied the image of American intelligence work, and by extension Australia’s. </p>
<p>Despite President Donald Trump’s <a href="https://www.theguardian.com/us-news/2017/jan/26/donald-trump-torture-absolutely-works-says-us-president-in-first-television-interview">call for their return</a>, these practices <a href="http://edition.cnn.com/2015/06/16/politics/senate-torture-bill-cia/">remain disendorsed</a> in the US and <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Prohibitionontortureandcruelinhumanordegradingtreatmentorpunishment.aspx">explicitly prohibited</a> in Australia, but the taint lingers. </p>
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<figcaption><span class="caption">Is Zero Dark Thirty fact or fiction?</span></figcaption>
</figure>
<h2>Overreach versus oversight</h2>
<p>This bad reputation continues in Oliver Stone’s 2016 biopic <a href="http://www.imdb.com/title/tt3774114/">Snowden</a>, which portrays a man intent on uncovering the underhanded practices of the US National Security Agency (NSA) as it collected data on American citizens without clear legal sanction.</p>
<p>Edward Snowden’s revelations were <a href="https://www.aclu.org/blog/edward-snowden-patriot">widely hailed</a> at the time as a boon for civil liberty. But anecdotal accounts indicate they have reduced trust within the “Five Eyes” network and damaged international relations – including <a href="http://www.abc.net.au/news/2013-11-18/australia-spied-on-indonesian-president,-leaked-documents-reveal/5098860">between Australia and Indonesia</a>. </p>
<p>Snowden’s actions, both in reality and as depicted on screen, have contributed to a popular idea of signals intelligence as an intrusive and malign force. Yet the Australian experience stands in contrast to that perception of American counterparts, in my opinion, thanks in part to tight legislation and oversight.</p>
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<figcaption><span class="caption">Snowden official trailer.</span></figcaption>
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<p>Most people don’t realise that local intelligence agencies are held accountable through several mechanisms that have emerged over recent decades, particularly in the wake of a number of <a href="http://www.naa.gov.au/collection/explore/security/royal-commisson/">royal commissions</a>. </p>
<p>These include the Inspector-General of Intelligence and Security (<a href="https://www.igis.gov.au/">IGIS</a>), the Parliamentary Joint Committee on Intelligence and Security (<a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security">PJCIS</a>), and the Intelligence Services Act (<a href="http://www.austlii.edu.au/au/legis/cth/consol_act/isa2001216/">ISA</a>), which <a href="https://www.asis.gov.au/Governance/Legislation-and-Privacy.html">sets out the rules</a> governing the ASIS, ASD and the AGO. But of course this doesn’t make for dramatic viewing. Laws passed in Australia <a href="https://www.ag.gov.au/dataretention">to collect</a> telecommunications metadata, although polarising, are also unlikely to make it onto the big screen.</p>
<h2>Getting intelligence right</h2>
<p>More recent movies like 2016’s <a href="http://www.imdb.com/title/tt2057392/">Eye in the Sky</a>, featuring Helen Mirren as a British colonel, <a href="https://theconversation.com/eye-in-the-sky-movie-gives-a-real-insight-into-the-future-of-warfare-56684">are more accurate</a> in their depiction of the current intelligence status quo. </p>
<p>Many of the capabilities on display in the film are real, particularly the way in which technology such as aerial sensors, signals intelligence, satellite imagery, and human agents on the ground has enabled ever more detailed, time-sensitive and actionable intelligence, and the moral questions this generates. </p>
<p>In Eye in the Sky, Mirren’s character and her bosses face choices about the relative value of a successfully targeted terrorist ringleader and an innocent child who inadvertently enters the missile target zone. Such fraught decisions can haunt intelligence practitioners for the rest of their lives.</p>
<p>Still, the preference for exaggeration is not going away. Increasingly, the plots of shows like <a href="http://www.imdb.com/title/tt1796960/">Homeland</a> and <a href="http://www.imdb.com/title/tt1856010/?ref_=fn_al_tt_1">House of Cards</a> depict intelligence operations being used to coerce opponents and sully the political process. </p>
<p>These portrayals are often accurate, to a point, demonstrating technical surveillance capabilities and the limitations of analysis that crosses cultural and linguistic boundaries. Still, directors and producers are understandably inclined towards more drama rather than less.</p>
<p>But with so much cynicism aimed at the various intelligence agencies, thanks in part to the Jason Bournes of this world, as well as a broad range of emerging intelligence and security challenges, periodic reviews of oversight and governance arrangements are important.</p>
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<figcaption><span class="caption">Eye in the Sky’s North American trailer.</span></figcaption>
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<p>We must ensure that all groups tasked with border security and countering violent extremism are incorporated under existing governance arrangements like the aforementioned PJCIS and the IGIS. We should also be more transparent with the community about the purposes and function of these activities.</p>
<p>While not yet the subject of a blockbuster film, the tragic <a href="https://theconversation.com/paris-terror-attacks-france-now-faces-fight-against-fear-and-exclusion-50703">Bataclan killings</a> in Paris, as well as the Nice, Berlin and London vehicle attacks, point to the enduring game of cat and mouse played by terrorists and intelligence and police authorities seeking to track down an ever more wary and surveillance-savvy adversary. </p>
<p>Recent revelations on the ABC’s Four Corners program <a href="http://iview.abc.net.au/programs/four-corners/NC1704H017S00">Power and Influence</a> about the activities of China-backed organisations also point to the growing challenge of state-derived intelligence.</p>
<p>Australia’s intelligence and security agencies are adapting to increasingly sophisticated threats. Perhaps the 2016 Australian miniseries <a href="http://www.canberratimes.com.au/act-news/canberra-life/new-miniseries-secret-city-puts-canberra-on-the-world-stage-20160523-gp1h6o.html">Secret City</a> is a prescient indicator of some of the “nefarious deeds” the future may hold for us.</p><img src="https://counter.theconversation.com/content/78902/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Blaxland is Professor of International Security and Intelligence Studies and Head of the Strategic and Defence Studies Centre at ANU. He is a former military director of joint intelligence operations and one of the authors of the three-volume history of ASIO. </span></em></p>James Bond and Jason Bourne have little to tell us about modern spycraft.John Blaxland, Professor, Strategic and Defence Studies Centre, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/791002017-06-12T11:02:33Z2017-06-12T11:02:33ZWhen is a leak ethical?<figure><img src="https://images.theconversation.com/files/173192/original/file-20170609-4794-1l7s68d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/145400875?src=gHOFeDwMXb9-BRnILcTtCA-1-10&size=huge_jpg">News leak image via www.shutterstock.com</a></span></figcaption></figure><p>Twenty-five-year-old Reality Leigh Winner remains in jail after a federal judge <a href="https://www.washingtonpost.com/news/morning-mix/wp/2017/06/09/judges-denies-bail-for-accused-nsa-leaker-reality-winner-after-not-guilty-plea/?utm_term=.f105615f8be2">denied her bail</a> <a href="https://www.nytimes.com/2017/06/06/us/politics/reality-leigh-winner-leak-nsa.html">in a case where she is alleged to have</a> sent classified information to the media. Winner faces up to <a href="http://www.cnn.com/2017/06/05/politics/federal-contractor-leak-prosecution/index.html">10 years in prison</a> if convicted.</p>
<p>Winner’s prosecution comes at a time when the Trump administration has been faced with <a href="https://www.washingtonpost.com/lifestyle/style/the-trump-administration-has-sprung-a-leak-many-of-them-in-fact/2017/02/05/a13fad24-ebe2-11e6-b4ff-ac2cf509efe5_story.html?utm_term=.0264ef6155de">numerous leaks</a> of sensitive information. The White House has stepped up efforts to identify leakers. And the Justice Department has also vowed to crack down on them. The Obama administration similarly took a hard line on leakers, <a href="https://www.theguardian.com/world/2013/oct/10/obama-leaks-aggressive-nixon-report-prosecution">prosecuting them more aggressively</a> than any presidential administration in the last 40 years. Winner is the first person to be criminally charged for leaking by the current administration.</p>
<p>Undoubtedly, leaking classified information <a href="https://www.lawfareblog.com/law-leaks">violates the law</a>. For some individuals, such as lawyers, leaking unclassified but still confidential information may also <a href="http://www.pbs.org/wgbh/frontline/article/whistleblower-facing-ethics-charges-over-nsa-leak/">violate the rules of professional conduct</a>.</p>
<p>But when is it ethical to leak? </p>
<h2>Public interest disclosures</h2>
<p>I am a scholar of legal ethics who has studied ethical decision-making in the political sphere. </p>
<p>Research has found that people are willing to blow the whistle when they believe that their organization has engaged in “<a href="http://ro.uow.edu.au/cgi/viewcontent.cgi?article=2528&context=lhapapers">corrupt and illegal conduct</a>.” They may also speak up to prevent larger threats to cherished values, such as <a href="https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Kwoka.pdf">democracy and the rule of law</a>. Law professor <a href="http://www.law.wustl.edu/Faculty/pages.aspx?id=222">Kathleen Clark</a> uses the phrase “<a href="https://www.corporatecrimereporter.com/news/200/whistleblower-lawyers-counterattack-against-dc-disciplinary-counsel/">public interest disclosures</a>” to refer to such leaks.</p>
<p>Scholars who study leaking suggest that <a href="https://www.scu.edu/ethics/focus-areas/journalism-ethics/resources/the-ethics-of-leaks/">it can indeed be ethical</a> to leak when the public benefit of the information is strong enough to outweigh the obligation to keep it secret.</p>
<h2>A landmark case</h2>
<p>The case of Jesselyn Radack illustrates the ethical concerns that go into the decision to leak publicly. Radack served as an ethics advisor in the Justice Department under President George W. Bush. When American John Walker Lindh was captured in Afghanistan in December 2001, allegedly <a href="https://www.nytimes.com/2016/10/23/opinion/sunday/pardon-the-american-taliban.html?_r=0**">fighting on behalf of the Taliban</a>, Radack advised the department that interrogating Lindh without allowing him to have a counsel present would violate attorney ethics rules and could jeopardize his prosecution. Her advice was ignored.</p>
<p>When Lindh was criminally charged, prosecutors were supposed to turn over any internal communications about the case. But Radack <a href="https://harpers.org/blog/2012/06/_traitor_-six-questions-for-jesselyn-radack/">found</a> that her earlier emails concluding that Lindh’s interrogation was unlawful had “disappeared from the office file while the Justice Department was under a court order to produce it.” This led Radack to believe that the department had failed to turn over the information.</p>
<p>As a result, Radack leaked the relevant emails to <a href="http://www.newsweek.com/lindh-case-e-mails-146037">Newsweek</a>. After Radack’s legal advice became public, the government agreed to a plea bargain with Lindh. Lindh would serve 20 years in prison instead of the “<a href="https://harpers.org/blog/2012/06/_traitor_-six-questions-for-jesselyn-radack/">three life sentences plus another 90 years</a>” that he could have gotten if he lost at trial.</p>
<p>Radack faced significant personal challenges as a result of leaking. She was the subject of a criminal investigation (though <a href="https://www.corporatecrimereporter.com/news/200/whistleblower-lawyers-counterattack-against-dc-disciplinary-counsel/">never formally charged</a>), underwent a <a href="https://www.corporatecrimereporter.com/news/200/whistleblower-lawyers-counterattack-against-dc-disciplinary-counsel/">10-year-long</a> professional disciplinary investigation by the bar and was even placed on a security watchlist that “<a href="http://voices.washingtonpost.com/spy-talk/2010/05/dc_bar_still_pursuing_doj_leak.html?utm_source=huffingtonpost.com&utm_medium=referral&utm_campaign=pubexchange_article">triggered secondary searches at every airport</a>.”</p>
<p>Radack went on to have a career specializing in providing legal representation to <a href="http://www.rollingstone.com/politics/news/badass-attorney-shoots-down-the-case-for-drones-20160224">others charged with making unauthorized leaks</a>. Ultimately, Radack’s work in whistleblowing earned her a <a href="http://www.huffingtonpost.com/2012/06/02/jesselyn-radack-playboy_n_1565151.html">major award for protecting the First Amendment</a>.</p>
<h2>Leaking a large amount of data</h2>
<p>Radack’s disclosure was limited to a single case. But some of the most controversial leaking cases in recent years have involved what <a href="http://www.law.du.edu/faculty-staff/margaret-kwoka">law professor Margaret Kwoka</a> has termed “<a href="https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Kwoka.pdf">deluge leaks</a>” that disclose huge amounts of data at once. </p>
<p>Edward Snowden, for example, leaked “<a href="https://www.wired.com/2014/08/edward-snowden/">hundreds of thousands of top-secret documents</a>” relating to government surveillance programs. Chelsea Manning, <a href="https://www.usatoday.com/story/news/politics/2017/05/14/chelsea-manning-wikileaks-transgender-soldier-donald-trump/101594390/">a U.S. army soldier</a>, also leaked hundreds of thousands of documents, including classified diplomatic cables, “<a href="https://www.wired.com/2017/05/chelsea-manning-free-leaks-changed/">to reveal what she believed were atrocities on the part of the U.S. government</a>.” Manning spent <a href="https://www.usatoday.com/story/news/nation/2017/05/17/chelsea-manning-prison-release/101783186/">more than seven years</a> in prison, while Snowden <a href="https://www.nytimes.com/2017/01/18/world/europe/edward-snowden-asylum-russia.html">sought refuge in Russia</a> to avoid prosecution.</p>
<p>Both Snowden and Manning expressed a commitment to ethical ideals. However, I would argue that because of the broad scope of their leaks, the disclosures had the potential to cause greater harm than more limited leaks – an important factor that scholars weigh in when measuring the <a href="https://journalism.nyu.edu/publishing/archives/pressethic/node/909">ethics of leaking</a>. According to political science professor <a href="http://politicalscience.vcu.edu/bios/jason-arnold/">Jason Ross Arnold</a>, for example, Manning’s disclosures may have helped enemies “<a href="https://www.washingtonpost.com/news/the-fix/wp/2017/05/19/do-leaks-to-the-media-really-put-lives-at-risk/?utm_term=.6029b8159b10">plan targets and develop strategies</a>” to harm Americans. The U.S. government also <a href="https://www.bloomberg.com/politics/articles/2016-09-15/snowden-s-leaks-caused-tremendous-damage-house-panel-says">spent millions of dollars</a> trying to rebuild intelligence assets in the wake of Snowden’s revelations.</p>
<h2>Fighting leaks</h2>
<p>Attorney General Jeff Sessions has said that “<a href="http://thehill.com/blogs/blog-briefing-room/news/326649-sessions-convictions-needed-to-end-government-leaks">it will probably take some convictions to put an end”</a> to leaks from the Trump administration. But a look at the <a href="http://www.pbs.org/wgbh/pages/frontline/newswar/tags/whyleak.html">motivation of leakers</a> suggests that criminal prosecution alone will not plug the flow of leaks.</p>
<p>Radack, Snowden and Manning have all said they were aware they could face serious consequences for leaking. But they were willing to take that chance because they thought it was more important to expose what they saw as serious wrongdoing. The threat of criminal or professional sanctions did not deter them. </p>
<p><a href="https://www.scu.edu/ethics/focus-areas/business-ethics/resources/encouraging-internal-whistleblowing/">Encouraging internal whistleblowing</a> may be a more effective way to prevent leaks.</p>
<p>Researchers have found that a <a href="https://www.scu.edu/ethics/focus-areas/business-ethics/resources/encouraging-internal-whistleblowing/">robust internal process</a> may be a key factor in preventing leaks. It is common for people to try to work <a href="https://ethics.csc.ncsu.edu/old/12_00/basics/whistle/rst/bad_guy.html">within the system</a> before leaking to the public. It is when higher-ups acknowledge illegal conduct but <a href="https://www.corporatecrimereporter.com/news/200/whistleblower-lawyers-counterattack-against-dc-disciplinary-counsel/">refuse to do anything about it</a>, or when individuals <a href="http://www.pbs.org/wgbh/pages/frontline/newswar/interviews/lichtblau.html">suffer retaliation</a> for bringing concerns up the internal chain of command, that leakers may believe that the only ethical choice is to go public.</p>
<p>We don’t know Reality Winner’s motivation for leaking or whether she will face criminal consequences for her alleged leaks. But when the decision to pass on information stems from a sense of ethical obligation, leakers will often accept serious personal risks to bring that information to the public.</p><img src="https://counter.theconversation.com/content/79100/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cassandra Burke Robertson is a board member of the 11/9 Coalition, a nationwide, non-partisan, grassroots organization working for the protection of civil liberties and the rule of law.</span></em></p>Leaking classified information violates the law. But it doesn’t mean that people are abandoning their ethics.Cassandra Burke Robertson, Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/751242017-05-09T06:07:36Z2017-05-09T06:07:36ZWeaponised research: how to keep you and your sources safe in the age of surveillance<figure><img src="https://images.theconversation.com/files/166176/original/file-20170420-20071-1eohps3.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is someone watching while you work?</span> <span class="attribution"><a class="source" href="https://flic.kr/p/Jbi1yw">Jay Moff/flickr</a></span></figcaption></figure><p>Surveillance has become so ubiquitous that it appears likely that Russia was <a href="http://www.latimes.com/nation/la-na-pol-wiretaps-russia-20170410-htmlstory.html">caught in the act</a> conspiring to fix the 2016 United States presidential election, and <a href="https://www.theguardian.com/us-news/2017/may/08/sally-yates-trump-russia-michael-flynn-blackmail-compromised">at least one of his staffers</a> was basically overheard conspiring with them. </p>
<p>Politicians aren’t the only ones being watched. Edward Snowden’s 2013 <a href="https://www.theguardian.com/us-news/the-nsa-files">revelations</a> detailing the US National Security Agency’s widespread surveillance have made clear that, these days, everyone should be thinking about privacy and security. </p>
<p>That includes academics, some of whom are undertaking sensitive, even dangerous, research. How can we work safely and ethically in an era of internet spying and wiretapping? </p>
<h2>Weaponising your own research</h2>
<p>This question is particularly salient for scholars who work on peace and justice organising: <a href="https://www.wired.com/2015/07/hacking-team-breach-shows-global-spying-firm-run-amok/">recent leaks</a> confirm that the military (or the police) may not only be reading your published work – they could also be tracking your online activity, monitoring your whereabouts and even listening in on your conversations.</p>
<p>Exposed files from the IT security company the Hacking Team confirm that its software is widely used around the world to listen to ambient conversations held in a room with a cell phone, <a href="http://www.bbc.com/news/technology-33772261">even when it is off</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"751219353698402304"}"></div></p>
<p>That opens up the ethically distressing possibility that your research can be weaponised – used by armed actors do to harm.</p>
<p>Geographers are particularly vulnerable to this threat. In 2007, the American Anthropological Association <a href="http://aaanewsinfo.blogspot.com.co/2007/11/aaa-board-statement-on-hts.html">denounced</a> the US Army’s Human Terrain Systems, which embeds social scientists in military teams in Iraq and Afghanistan, as “an unacceptable application of anthropological expertise”. Since then, the US military’s attempts to know (and control) the so-called human terrain have shifted to geography. </p>
<p>Even the highly <a href="https://books.google.ca/books/about/Weaponizing_Anthropology.html?id=eVZEAQAAQBAJ">critiqued</a> term “human terrain” has been widely <a href="http://www.tandfonline.com/doi/abs/10.1080/02684527.2014.945348?journalCode=fint20">replaced</a> with the term “human geography”. </p>
<p>As a result, we see a fast-growing trend of geographers being offered military <a href="http://www.tandfonline.com/doi/abs/10.1080/00045608.2013.843436">funding</a> for research, often through front organisations such as the US Department of Defense’s <a href="http://ppel.arizona.edu/?p=225">Minerva</a> Research Initiative. </p>
<p>The army’s new favour for geographers was reinforced when the American Association of Geographers (AAG) for years refused to take action on a military-related scandal. Researchers led by Peter Herlihy at the University of Kansas who were doing participatory <a href="https://books.google.com.co/books/about/Weaponizing_Maps.html?id=IELJBgAAQBAJ&printsec=frontcover&source=kp_read_button&redir_esc=y">mapping with</a> indigenous groups in Oaxaca, Mexico, <a href="https://books.google.com.co/books/about/Geopiracy.html?id=gzvZaywCb4AC&redir_esc=y">failed to disclose</a> both their US military funding and the fact that they were thus sharing research findings with their donors.</p>
<p>That’s unethical anywhere, but it’s particularly problematic in Oaxaca: the US military likely shared that detailed GIS information about Zapoteco communities with the Mexican military, which has long <a href="https://www.youtube.com/watch?v=GIb3cJJdVYQ">repressed those indigenous communities</a>. </p>
<p>In early April 2017, the AAG finally agreed to form a study group to examine the issue of ties between their discipline and the US, UK and NATO armed forces. </p>
<h2>Research hack</h2>
<p>Even if you’re an academic who doesn’t accept military funding, your findings may already have been added to the military’s huge databases without you knowing it (the citation is <a href="http://www.counterpunch.org/2012/11/29/geography-counterinsurgent/">unlikely to come up</a> in a Google Scholar search). </p>
<p>Karen Morin of Bucknell University, for example, discovered that her <a href="https://books.google.com.co/books/about/Key_Concepts_in_Geography.html?id=JUZdBAAAQBAJ&printsec=frontcover&source=kp_read_button&redir_esc=y#v=onepage&q&f=false">chapter</a> on interpreting landscape had been cited in a Marines operational <a href="https://www.mca-marines.org/files/READING_THE_CULTURAL_LANDSCAPE_WHITE_PAPER.pdf">guide</a>. Its subject: reading the cultural landscape correctly can enable troops to immediately control a population upon arrival. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=427&fit=crop&dpr=1 600w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=427&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=427&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/166180/original/file-20170420-20071-oln8mp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">You never know who’s listening in.</span>
<span class="attribution"><a class="source" href="https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=0ahUKEwjOvK68_7PTAhVMQBQKHfzCCsMQjRwIBw&url=http%3A%2F%2Fwww.eucom.mil%2Fmedia-library%2Farticle%2F19672%2Fspecial-operations-command-europe-conducts-intelligence-symposium&psig=AFQjCNGbMsvnmxsWLzj0mvRD66a6JKz4qQ&ust=1492810723861875">EUCOM</a></span>
</figcaption>
</figure>
<p>It is very hard to track down this sort of misappropriation of your work. But you can keep it in mind when publishing. Ask yourself: who might want this information, and could it in any way be used to do harm?</p>
<p>Academics should also be aware that unpublished research data can also be hacked. I found this out the hard way, when the email account of the <a href="https://peacepresence.org/">Fellowship of Reconciliation</a>, a group that I was doing research with and regularly emailing, was hacked by Colombian intelligence and their emails used to prosecute a human rights activist on trumped-up charges. </p>
<h2>Protect yourself (and your sources)</h2>
<p>These basic steps can prevent your data being similarly hacked and misused.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=438&fit=crop&dpr=1 600w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=438&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=438&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/168469/original/file-20170508-20735-18fpobh.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Two-step verification on Gmail.</span>
<span class="attribution"><span class="source">Screenshot/google.com</span></span>
</figcaption>
</figure>
<p>1) Add two-step verification to your email. <a href="https://www.google.com/landing/2step/">For Gmail</a>, simply select this option under preferences under security, and then when you log in from a new computer it will ask you to enter a code texted to your phone. You can also download a list of ten backup codes to use when you are away from cell coverage.</p>
<p>2) Encrypt your computer. Or, more realistically, <a href="http://lifehacker.com/a-beginners-guide-to-encryption-what-it-is-and-how-to-1508196946">encrypt</a> one folder on it, which is where you will store those backup codes and other secure information. Beware that encryption will slow older computers down. Also encrypt all data every time you do a backup, and set up two-step verification on backups. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/166178/original/file-20170420-20087-xg986f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=0ahUKEwi084nd_bPTAhUBNxQKHahzAlAQjRwIBw&url=https%3A%2F%2Fpixabay.com%2Fen%2Fphotos%2Fscreen%2F&psig=AFQjCNGOk2UkapeBopyBzuaXwSkz4lzsWA&ust=1492810218857695">Pixabay</a></span>
</figcaption>
</figure>
<p>3) Put away your phone. You can now record long interviews on most phones. But if you at all suspect that the content of that interview could be misused in any way, by anyone, and particularly by armed actors, use a small digital recorder instead. </p>
<p>4) Get away from your phone. Simply turning off your phone is not enough; hackers can still record ambient conversations. A safer bet is to keep the phone outside of the room. (Remember to also take along another timepiece if you usually depend on your phone for that.) </p>
<p>5) Destroy the evidence. When your write field notes by hand, snap a photo of them and save the images behind encryption, then destroy your hard paper copy. </p>
<p>Do I sound paranoid? Most researchers, after all, are hardly embarking on James Bond-like missions. </p>
<p>Think what you like, but <a href="http://www.bbc.com/news/technology-33772261">recent revelations</a> have shown that governments around the world have purchased software for listening to conversations in the room through your smart phone.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"852974864461963265"}"></div></p>
<p>The community organisers, political activists, rogue scientists, indigenous rights defenders and environmentalists we routinely talk to as part of our research can become targets of government retaliation.</p>
<p>Given the high levels of surveillance and the growing weaponisation of research, caution is warranted. What it means to do <a href="http://www.tandfonline.com/doi/abs/10.1080/24694452.2016.1145511?journalCode=raag21">ethical research has changed</a>, and that should be reflected in both our own research methods and our methods classes.</p>
<p>
<section class="inline-content">
<img src="https://images.theconversation.com/files/265344/original/file-20190322-36244-jav5vf.png?w=128&h=128">
<div>
<header></header>
<p><a href="http://www.aag.org">Sara Koopman is a member of the American Association of Geographers</a></p>
<footer>The association is a funding partner of The Conversation US.</footer>
</div>
</section>
</p><img src="https://counter.theconversation.com/content/75124/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sara Koopman is a member of the American Association of Geographers.</span></em></p>Yes, Big Brother is almost definitely watching. Here, five tips for researchers on keeping you and your sources safe.Sara Koopman, Research Associate, Tampere Peace Research Institute, Tampere UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/741222017-03-17T00:05:46Z2017-03-17T00:05:46ZBypassing encryption: ‘Lawful hacking’ is the next frontier of law enforcement technology<figure><img src="https://images.theconversation.com/files/160611/original/image-20170313-9628-1vmljkd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How can investigators get into digital files?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sherlock-holmes-silhouette-studio-on-white-109130930">Sherlock Holmes and computer via shutterstock.com</a></span></figcaption></figure><p>The discussion about how law enforcement or government intelligence agencies might rapidly decode information someone else wants to keep secret is – or should be – shifting. One commonly proposed approach, introducing what is called a “backdoor” to the encryption algorithm itself, is now widely recognized as too risky to be worth pursuing any further.</p>
<p>The scholarly and research community, the technology industry and Congress appear to be in agreement that weakening the encryption that in part enables information security – even if done in the name of public safety or national security – is a bad idea. Backdoors could be catastrophic, jeopardizing the security of billions of devices and critical communications.</p>
<p>What comes next? Surely police and spy agencies will still want, or even need, information stored by criminals in encrypted forms. Without a backdoor, how might they get access to data that may help them solve – or even prevent – a crime? </p>
<p>The future of law enforcement and intelligence gathering efforts involving digital information is an emerging field that <a href="http://dx.doi.org/10.1080/00396338.2016.1231534">I and others who are exploring it</a> sometimes call “<a href="http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1209&context=njtip">lawful hacking</a>.” Rather than employing a skeleton key that grants immediate access to encrypted information, government agents will have to find other technical ways – often involving malicious code – and other legal frameworks.</p>
<h2>Decades of history</h2>
<p>In the mid-1990s, the Clinton administration advanced a proposal called the <a href="http://www.nytimes.com/1994/06/12/magazine/battle-of-the-clipper-chip.html?pagewanted=all">Clipper Chip</a>. The chip, which ultimately was doomed by its technical shortcomings, was an attempt to ensure government access to encrypted communications. After the chip’s introduction and failure, a group of cryptographers formally studied various mechanisms that might allow a trusted third party (in this case, the government) to read encrypted data in emergencies. They concluded that each approach had <a href="http://hdl.handle.net/10022/AC:P:9130">significant security risks</a>. </p>
<p>Overall, the cryptographers’ view was that introducing this new capability into an encryption system made an already complicated process <a href="https://doi.org/10.1145/191177.191193">even more complex</a>. This increased complexity made it more likely that there would be an unintentional <a href="http://dx.doi.org/10.1007/3-540-44750-4_18">vulnerability hidden in the encryption protocol</a> that malicious hackers could find, gaining access to the trusted third party’s emergency system or otherwise breaking the code. The hackers could then read secret messages for their own purposes – a huge risk.</p>
<p>When the Clipper Chip project died and when the cryptographers’ major study came out, the idea of exceptional access for government seemed to die as well. In an environment in which cybersecurity was an increasing priority, and in which encryption was a partial defense against many data breaches and hackers, it seemed unwise to do anything that might weaken cryptographic standards.</p>
<h2>Snowden reveals more</h2>
<p>While the Clipper Chip effort to use public processes to create weaknesses in cybersecurity had failed, the National Security Agency had, in secret, worked to undermine certain popular encryption algorithms. In addition to direct attempts to break encryption with mathematical methods, an <a href="https://www.theguardian.com/world/2013/sep/05/nsa-gchq-encryption-codes-security">NSA project code-named Bullrun</a> included efforts to influence or control international cryptography standards, and even to <a href="https://www.propublica.org/article/the-nsas-secret-campaign-to-crack-undermine-internet-encryption">collaborate with private companies</a> to ensure the NSA could decode their encryption.</p>
<p>This came to light when <a href="https://www.theguardian.com/us-news/the-nsa-files">former NSA contractor Edward Snowden</a> revealed a massive trove of files about U.S. government spying in 2013 and reignited the debate about what abilities and powers the government should have to read encrypted material.</p>
<p>Once again, a group of the world’s leading cryptographers studied the issue, and in 2015 came to the same conclusion: The <a href="https://doi.org/10.1145/2814825">risk of backdooring encryption to enable government access</a> was too high. Doing so would weaken overall security too much to make up for any brief improvements in public safety or national security.</p>
<h2>The FBI pushes back</h2>
<p>Then came the <a href="http://www.cnn.com/specials/san-bernardino-shooting">San Bernardino attack</a>. On Dec. 2, 2015, Rizwan Farook and his wife, Tashfeen Malik, opened fire at a social services center in San Bernardino, California. <a href="http://www.cnn.com/2015/12/05/us/san-bernardino-shooting/index.html">Inspired – but not directed – by foreign terrorist groups</a>, they killed 14 people and wounded 22 more during their violent rampage.</p>
<p>Before the attack, Farook had physically smashed up two personal cellphones, rendering their data unrecoverable. He left untouched his work phone, an iPhone 5c issued by San Bernardino County. Investigators found the phone, but the FBI was <a href="https://www.nytimes.com/2016/02/18/technology/apple-timothy-cook-fbi-san-bernardino.html">unable to examine its data</a> due to Apple’s encryption and security mechanisms on the device.</p>
<p>To get around this, the United States government used a law from the earliest days of the republic, the <a href="https://theconversation.com/apple-versus-fbi-all-writs-acts-age-should-not-bar-its-use-55430">1789 All Writs Act</a>, to try to compel Apple to write software that would break the encryption and grant the FBI access. <a href="https://www.washingtonpost.com/world/national-security/us-wants-apple-to-help-unlock-iphone-used-by-san-bernardino-shooter/2016/02/16/69b903ee-d4d9-11e5-9823-02b905009f99_story.html">Apple refused</a>, saying that doing so would weaken the security of every iPhone on the market, and a court showdown began.</p>
<h2>The conflict in a nutshell</h2>
<p>The Apple-FBI case nicely encapsulates much of the debate around encryption: a horrible incident that everyone wants investigated, the government’s stated need for access to aid the investigation, strong encryption that prevents that access and a company unwilling to risk the broader security of its products by attacking its own software.</p>
<p>And yet, even when the stakes were as high as the government said they were in the San Bernardino case, encryption would remain secure.</p>
<p>Faced with Apple’s refusal to comply and criticism from the technology and privacy industries, the FBI found another way. The bureau <a href="https://www.nytimes.com/2016/03/29/technology/apple-iphone-fbi-justice-department-case.html">hired an outside firm</a> that was able to exploit a vulnerability in the iPhone’s software and gain access. It <a href="https://www.nytimes.com/2016/04/14/technology/fbi-tried-to-defeat-encryption-10-years-ago-files-show.html">wasn’t the first time</a> the bureau had done such a thing.</p>
<p>As this all unfolded, and in the face of a wide range of significant opposition, a <a href="http://www.reuters.com/article/usa-encryption-legislation-idUSL2N18O0BM">bill to mandate backdoors</a> was introduced and failed in the United States Congress.</p>
<p>Encryption backdoors remain largely viewed as weakening everyone’s protections all the time for the sake of some people’s protections on rare occasions. As a result, workarounds like the FBI found are likely to be the most common approach going forward. Indeed, in recent years, law enforcement agencies have greatly <a href="https://www.wired.com/2016/05/history-fbis-hacking/">expanded their hacking capabilities</a>.</p>
<h2>A look to the future</h2>
<p>The details matter, though, and how this fledgling field develops remains to be seen. Technologists and lawyers studying the issue have identified several key questions, but not their answers. These include: </p>
<ul>
<li>What kinds of vulnerabilities can law enforcement use to gain access, technologically, legally and ethically?</li>
<li>Should they report those vulnerabilities to the software vendors for fixing, even if it means it is less likely that either police or hackers will be able use the weaknesses in the future?</li>
<li>What do they need to tell a judge in order to get permission to hack a device?</li>
<li>Can they hack devices outside of their jurisdiction, and what happens if they hack computers in other countries? </li>
<li>Do they need to tell a defendant at trial how they hacked his or her device? </li>
</ul>
<p>While some details depend on specific certain answers to these legal and technical questions, a lawful hacking approach offers a solution that appears to gain greater favor with experts than encryption backdoors. A group of scholars <a href="http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1209&context=njtip">proposed some ways</a> we should begin thinking about how law enforcement could hack. Agencies are already doing it, so it’s time to turn from the now-ended debate about encryption backdoors and engage in this new discussion instead.</p><img src="https://counter.theconversation.com/content/74122/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Buchanan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The technical consensus is clear: Adding ‘backdoors’ to encryption algorithms weakens everyone’s security. So what are the police and intelligence agencies to do?Ben Buchanan, Postdoctoral Fellow, Cyber Security Project, Belfer Center for Science and International Affairs, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/742262017-03-09T04:19:45Z2017-03-09T04:19:45ZThe WikiLeaks CIA release: When will we learn?<figure><img src="https://images.theconversation.com/files/160100/original/image-20170309-21018-1gx6ex.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The world is searching – will we protect ourselves?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/wikileaks-document-leaked-secret-confidential-digital-550243126">Graphic via shutterstock.com</a></span></figcaption></figure><p>This week’s WikiLeaks release of what is apparently a <a href="https://wikileaks.org/ciav7p1/">trove of Central Intelligence Agency information related to its computer hacking</a> should surprise no one: Despite its complaints of being targeted by cyberattackers from other countries, the U.S. does a fair amount of its own hacking. Multiple federal agencies are involved, including the CIA and the <a href="https://theintercept.com/2016/12/29/top-secret-snowden-document-reveals-what-the-nsa-knew-about-previous-russian-hacking/">National Security Agency</a>, and <a href="https://www.theguardian.com/world/2013/dec/02/history-of-5-eyes-explainer">even friendly nations</a>. These latest disclosures also remind us of the cybersecurity truism that any electronic device connected to a network can be hacked. </p>
<p>As cybersecurity researchers conducting a preliminary review of the data released in what WikiLeaks calls “Vault 7,” we find the documents mostly confirm existing knowledge about how common hacking is and <a href="https://arstechnica.com/security/2017/03/wikileaks-publishes-what-it-says-is-trove-of-cia-hacking-tools/">how many potential targets</a> there are in the world. </p>
<p>This round of leaks, of documents dating from 2013 to 2016, also reinforces perhaps the most troubling piece of information we already knew: Individuals and the government itself must step up cyberdefense efforts to protect sensitive information.</p>
<h2>Almost everything is hackable</h2>
<p>For years, security experts and researchers have warned that if something is connected to the internet it is <a href="http://www.pcworld.com/article/227576/everything_is_hackable_and_cyber_criminals_cant_be_tracked.html">vulnerable to attack</a>. And spies around the world <a href="http://www.nato.int/docu/review/2013/cyber/timeline/EN/index.htm">routinely gather intelligence electronically</a> for diplomatic, economic and national security purposes.</p>
<p>As a result, we and <a href="https://law.vanderbilt.edu/news/snowden-revelations-not-surprising-to-those-following-expansion-of-government-surveillance-programs-according-to-christopher-slobogin/">others in the cybersecurity community</a> were not surprised by the <a href="https://www.theguardian.com/us-news/the-nsa-files">2013 revelations from former NSA contractor Edward Snowden</a>. We knew that the spying programs he disclosed were possible if not likely. By contrast, the <a href="https://theconversation.com/snowden-a-picture-of-the-cybersecurity-state-65310">general public and many politicians were astounded</a> and worried by the Snowden documents, just as many citizens are surprised by this week’s WikiLeaks disclosure.</p>
<p>One element of the new WikiLeaks “Vault 7” release provides more insight into the scope of government spying. In a project called “<a href="https://www.cnet.com/news/weeping-angel-hack-samsung-smart-tv-cia-wikileaks/">Weeping Angel</a>,” CIA hackers and their U.K. counterparts worked to turn <a href="https://wikileaks.org/ciav7p1/cms/page_12353643.html">Samsung F8000 smart television sets into remote surveillance tools</a>. Hacked TV’s could record what their owners said nearby, even when they appeared to be turned off.</p>
<p>The fact that the CIA specifically targeted smart televisions should serve as yet another a wake-up call to the general public and technology manufacturers about <a href="http://www.snopes.com/2016/02/12/samsung-smart-tvs-spying/">cybersecurity issues inherent in modern devices</a>. Specifically, “<a href="https://theconversation.com/security-risks-in-the-age-of-smart-homes-58756">smart home</a>” and <a href="https://theconversation.com/its-the-year-2020-hows-your-cybersecurity-57868">Internet of Things devices</a> represent a massive vulnerability. They are open to attack not only by government organizations seeking intelligence on national security information, but terrorists, criminals or other adversaries.</p>
<p>It’s not necessarily a good idea to have always-on and network-enabled microphones or cameras in every room of the house. Despite many of these devices being sold with <a href="https://www.wired.com/2014/01/theres-no-good-way-to-patch-the-internet-of-things-and-thats-a-huge-problem/">insecure default settings</a>, the market is <a href="https://www.verizon.com/about/sites/default/files/state-of-the-internet-of-things-market-report-2016.pdf">growing very rapidly</a>. More and more people are buying <a href="http://www.computerworld.com/article/3128791/data-privacy/how-google-homes-always-on-will-affect-privacy.html">Google Home</a> or <a href="https://www.theguardian.com/technology/2015/nov/21/amazon-echo-alexa-home-robot-privacy-cloud">Amazon Echo</a> devices, <a href="http://www.cbsnews.com/news/baby-monitors-connect-internet-vulnerable-hackers-cybersecurity/">Wi-Fi enabled baby monitors</a> and even <a href="http://www.pcmag.com/article2/0,2817,2498510,00.asp">internet-connected home-security equipment</a>.</p>
<p>These have already caused problems for families whose <a href="http://www.theverge.com/2017/1/7/14200210/amazon-alexa-tech-news-anchor-order-dollhouse">devices overheard a TV newscaster and ordered dollhouses</a> or whose <a href="https://arstechnica.com/security/2017/02/creepy-iot-teddy-bear-leaks-2-million-parents-and-kids-voice-messages/">kids were tracked by a teddy bear</a>. And large parts of the internet were disrupted when many “smart” devices were <a href="https://krebsonsecurity.com/2016/11/akamai-on-the-record-krebsonsecurity-attack/">hijacked and used to attack other networked systems</a>.</p>
<h2>Phones were a key target</h2>
<p>The CIA also explored ways to take control of <a href="https://theintercept.com/2017/03/07/the-cia-didnt-break-signal-or-whatsapp-despite-what-youve-heard/">smartphone operating systems</a>, allowing the agency to monitor everything a phone’s user did, said or typed on the device. Doing so would provide a way around <a href="https://theintercept.com/2016/06/22/battle-of-the-secure-messaging-apps-how-signal-beats-whatsapp/">post-Snowden encrypted communications apps</a> like WhatsApp and Signal. However, some of the CIA’s methods of attack have <a href="https://www.engadget.com/2017/03/08/apple-ios-wikileaks-cia-exploits/">already been blocked</a> by technology vendors’ security updates.</p>
<p>The CIA’s apparent ability to hack smartphones casts doubt on the need for <a href="https://www.nytimes.com/2015/11/19/us/politics/fbi-director-repeats-call-that-ability-to-read-encrypted-messages-is-crucial.html">officials’ repeated calls</a> to <a href="https://theconversation.com/in-fbi-versus-apple-government-strengthened-techs-hand-on-privacy-55353">weaken mobile phone encryption features</a>. It also weakens the <a href="https://www.techdirt.com/articles/20140413/07094726892/obama-tells-nsa-to-reveal-not-exploit-flaws-except-all-times-it-wants-to-do-opposite.shtml">government’s claim</a> that it must strengthen surveillance by <a href="https://wikileaks.org/ciav7p1/cms/page_13205587.html">not telling tech companies when it learns of security weaknesses</a> in everyday products. Just like the door to your house, technological vulnerabilities work equally well in providing access to both “good guys” and “bad guys.”</p>
<p>Ultimately, as a society, we must continue to debate the trade-offs between the conveniences of modern technologies and security/privacy. There are definite benefits and conveniences from pervasive and wearable computing, smart cars and televisions, internet-enabled refrigerators and thermostats, and the like. But there are very real security and privacy concerns associated with installing and using them in our personal environments and private spaces. Additional problems can come from how our governments address these issues while respecting popular opinion and acknowledging the capabilities of modern technology.</p>
<p>As citizens, we must decide what level of risk we – as a nation, a society and as individuals – are willing to face when using internet-connected products.</p>
<h2>We’re frequent attackers – but bad defenders</h2>
<p>The WikiLeaks release also reconfirms a reality the U.S. might prefer to keep quiet: While the government objects to others’ offensive cyberattacks against the United States, we launch them too. This isn’t news, but it hurts America’s reputation as a fair and aboveboard player on the international stage. It also also reduces American officials’ credibility when they object to other countries’ electronic activities. </p>
<p>Leaks like this reveal America’s methods to the world, providing plenty of direction for adversaries who want to replicate what government agents do – or even potentially launch attacks that appear to come from American agencies to conceal their own involvement or deflect attribution.</p>
<p>But perhaps the most disturbing message the WikiLeaks disclosure represents is in the leak itself: It’s another high-profile, high-volume breach of information from a major U.S. government agency – and at least the third significant one from the secretive intelligence community. </p>
<p>Perhaps the largest U.S. government data loss incident was the 2014 <a href="https://www.wired.com/2016/10/inside-cyberattack-shocked-us-government/">Office of Personnel Management breach</a> that affected <a href="https://www.opm.gov/cybersecurity/cybersecurity-incidents/">more than 20 million current and former federal workers</a> and their families (including this article’s authors). But the U.S. has never truly secured its digital data against cyberattackers. In the 1990s there was <a href="http://www.politico.com/magazine/story/2016/03/russia-cyber-war-fred-kaplan-book-213746">Moonlight Maze</a>; in the 2000s there was <a href="https://www.schneier.com/blog/archives/2005/12/titan_rain_1.html">Titan Rain</a>. And that’s just for starters.</p>
<p>Our government needs to focus more on the mundane tasks of cyberdefense. Keeping others out of key systems is crucial to American national security, and to the proper function of our government, military and civilian systems.</p>
<p>Achieving this is no easy task. In the wake of this latest WikiLeaks release, it’s certain that the CIA and other agencies will further step up their <a href="https://theconversation.com/how-governments-and-companies-can-prevent-the-next-insider-attack-72235">insider-threat protections</a> and other defenses. But part of the problem is the amount of data the country is trying to keep secret in the first place.</p>
<p>We recommend the federal government review its classification policies to determine, frankly, if too much information is needlessly declared secret. Reportedly, as many as <a href="https://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/2015-Annual_Report_on_Security_Clearance_Determinations.pdf">4.2 million people</a> – federal employees and contractors – have security clearances. If so many people need or are given access to handle classified material, is there just too much of it to begin with? In any case, the information our government declares secret is available to a very large group of people.</p>
<p>If the U.S. is going to be successful at securing its crucial government information, it must do a better job managing the volume of information generated and controlling access to it, both authorized and otherwise. Granted, neither is an easy task. However, absent fundamental changes that fix the proverbial <a href="https://www.stratfor.com/analysis/i-could-tell-you-id-have-kill-you-cult-classification-intelligence">cult of classification</a>, there likely will be many more WikiLeaks-type disclosures in the future.</p><img src="https://counter.theconversation.com/content/74226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Forno has received research funding related to cybersecurity from the National Science Foundation (NSF) and the Department of Defense (DOD) during his academic career.</span></em></p><p class="fine-print"><em><span>Anupam Joshi receives funding from a variety of governmental (NSF, DoD, NIST etc.) as well as industrial (IBM, GE, Northrop Grumman etc.) sources to support his research and educational activities as a faculty member.</span></em></p>The latest release from WikiLeaks, of information about CIA hacking efforts, is yet another reminder of how Americans and our government must better protect our secret information.Richard Forno, Senior Lecturer, Cybersecurity & Internet Researcher, University of Maryland, Baltimore CountyAnupam Joshi, Oros Family Professor and Chair, Department of Computer Science & Electrical Engineering, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/735582017-02-27T13:15:52Z2017-02-27T13:15:52ZTrump is right: stories will dry up if the press can’t use anonymous sources<p>Donald Trump has declared war on anonymous sources and wants to ban their use by journalists. In a speech at the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/24/trumps-media-obsessed-cpac-speech-annotated/?utm_term=.5015b259fb04">Conservative Political Action Conference</a> (CPAC) on February 24, he said: “You will see stories dry up like you have never seen before.”</p>
<p>He’s right. If such a restriction is imposed then stories would dry up. He is very wrong to demand it though. Such a restriction on journalism would have devastating effects for democracy and the flow of information in the public interest, as courts have repeatedly recognised. </p>
<p>But in his first few weeks as president, Trump has shown himself to be no friend to press freedom. Hours after his CPAC speech, <a href="https://www.theguardian.com/us-news/2017/feb/24/media-blocked-white-house-briefing-sean-spicer">the White House barred</a> several news organisations, including the Guardian, the New York Times, Politico, CNN, BuzzFeed, the BBC, the Daily Mail and others from an off-camera press briefing, or “gaggle” conducted by press secretary Sean Spicer. Additionally, <a href="http://www.bbc.co.uk/news/world-us-canada-39093434">he announced</a> that he will not attend the White House correspondents’ dinner in April. Building relationships with the press is not a priority for this new administration.</p>
<p>Banning the use of confidential sources denies a core principle <a href="http://ethicaljournalismnetwork.org/what-we-do/ethics-and-sources">reflected in media ethics codes</a> from around the world and flies in the face of the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> to the United States constitution and rights to free speech. Protecting journalists’ confidential sources is deemed essential to freedom of expression, public interest journalism and holding power to account. It is held as sacred, to be interpreted rigidly – <a href="https://www.theguardian.com/media/2005/jul/07/pressandpublishing.usnews">even in the face of criminal prosecution</a>. </p>
<p>The principle is deep-rooted and <a href="http://journalism.cmpf.eui.eu/discussions/on-protection-of-journalistic-sources/">recognised in the jurisprudence of the European Court of Human Rights</a> (which has found against the UK on this issue, <a href="http://www.echr.coe.int/Documents/FS_Journalistic_sources_ENG.pdf">on more than one occasion</a>), formal commitments by the <a href="http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17943&lang=en">Committee of Ministers of the Council of Europe</a>, the <a href="https://www.coe.int/en/web/media-freedom/-/un-human-rights-council-adopts-ground-breaking-resolution-on-safety-of-journalists">United Nations Human Rights Council</a> and <a href="http://publications.europa.eu/en/publication-detail/-/publication/194323d5-526f-4946-a2b6-38de432e8402/language-en">the European parliament</a>. </p>
<p>But successfully protecting a confidential source has always required a careful balance. Protections exist in law but they must be skilfully navigated and practical steps taken to maintain confidential communication between journalist and source. This careful balance was never easy to achieve, but it is becoming increasingly difficult, as we show in our recent report “<a href="http://ials.sas.ac.uk/research/research-centres/information-law-policy-centre/research/journalists%E2%80%99-sources-surveillance">Protecting Whistleblowers and Sources in a Digital Age</a>” – the result of a research initiative supported by Guardian News and Media, publisher of the Guardian and the Observer newspapers.</p>
<p>Our research presents the views and experiences of 25 investigative journalists, specialist lawyers, academics and representatives from NGOs, shared at a meeting hosted by the Institute of Advanced Legal Studies in September 2016. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"781838706030313472"}"></div></p>
<p>We identify that a powerful combination of legal and technological threats now jeopardise source confidentiality. A journalist may assure a source of anonymity but that promise is not an easy one to keep unless the source has taken precautions when making contact from the very beginning of their communication. </p>
<p>Even for a source such as former NSA contractor <a href="https://www.theguardian.com/us-news/edward-snowden">Edward Snowden</a>, well versed in encryption and security techniques, maintaining confidential channels of communication <a href="https://theintercept.com/2014/10/28/smuggling-snowden-secrets/">was tricky</a> when he decided to leak documents revealing the nature and scale of the NSA’s international surveillance programmes in 2013. Most sources may not take important precautions, nor wish to disclose their identity, as Snowden eventually did. They won’t necessarily have the technical ability of Snowden, the mind-set of <a href="https://www.theguardian.com/world/2008/dec/19/watergate-deep-throat-dies">Deep Throat</a>, nor necessarily even think of themselves as a source or a whistleblower. </p>
<h2>Blowing the whistle</h2>
<p>In tandem, legal threats abound. The government has claimed, during the passage of the Investigatory Powers Bill in 2015-16 and <a href="https://www.theguardian.com/media/2017/feb/22/whistleblowers-need-greater-protection-digital-age-media-lawyers-say">in response to our report</a>, that it has strengthened protections for whistleblowers in legislation, but we remain unconvinced. </p>
<p>The <a href="http://services.parliament.uk/bills/2015-16/investigatorypowers.html">Investigatory Powers Act</a> was an opportunity to create a robust and independent process for authorising the state’s interception of journalistic material. In the event, despite the introduction of a judicial approval stage, journalists and their sources are left vulnerable with no requirement for notification to the affected party – and protections <a href="https://ukconstitutionallaw.org/2016/12/01/eric-king-and-daniella-lock-investigatory-powers-bill-key-changes-made-by-the-lords/">that fall short</a> of their equivalent in the Police and Criminal Evidence Act (PACE) 1984. </p>
<p>More recently, the <a href="https://services.parliament.uk/bills/2016-17/digitaleconomy.html">Digital Economy Bill 2016-17</a> posed a new threat. In its original form, Part V introduces new criminal offences for disclosure of public authority and government data with no specified protection for public interest journalism. </p>
<p>Thanks to the intervention of the <a href="https://www.nuj.org.uk/news/nuj-wins-safeguards-for-journalists-in-the-digital-economy-bill/">National Union of Journalists</a>, the <a href="https://www.publications.parliament.uk/pa/cm201617/cmpublic/digitaleconomy/memo/DEB21.htm">Media Lawyers’ Association</a> and the <a href="http://www.newsmediauk.org/Latest/nma-wins-press-exemption-in-digital-bill">News Media Association</a>, the government has introduced an amendment which offers a defence for public interest journalism. </p>
<p>Nonetheless, there is still a question mark about the effectiveness of this defence and the extent to which it will protect journalists and their confidential sources. How will it be interpreted by the courts? </p>
<p>It is a thorny legal problem about what should be considered as “journalism”, and so it is difficult to predict who – or what activity – will benefit from this defence. Additionally, even if journalists are better protected in law, we must not neglect the question of whether sources and whistleblowers are adequately protected.</p>
<h2>In the public interest</h2>
<p>The latest issue to garner attention is the Law Commission’s <a href="http://www.lawcom.gov.uk/project/protection-of-official-data/">new consultation on the protection of official data</a>. Preliminary proposals on reform to the law on official secrets and espionage have been <a href="https://www.theguardian.com/uk-news/2017/feb/12/uk-government-accused-full-frontal-attack-prison-whistleblowers-media-journalists">severely criticised</a> by a number of media organisations and civil society organisations. </p>
<p>The Law Commission <a href="https://twitter.com/Law_Commission/status/830740201555243008">has indicated</a> that these are merely proposals – and they, to a large extent, are an attempt to codify and update existing laws, but these points do not alleviate our concern about their effect on whistleblowing and source protection. </p>
<p>A consolidating act that replicates the deficiencies of already existing law would be no improvement on the existing law – and the absence of a public interest defence in actions that relate to whistleblowing of officially secret material is a significant omission. </p>
<p>And as Trump’s comments at CPAC indicate, a larger sociopolitical threat looms. The new president takes an unprecedented approach to his dealings with the media and his use of social media. Events – such as the disclosures leading to the resignation of <a href="https://www.theguardian.com/us-news/2017/feb/15/donald-trump-leaks-michael-flynn-russia-call">US national security adviser Michael Flynn</a> – highlight the value and importance to democratic debate of whistleblowing in the public interest. </p>
<p>This demonstrates quite how important it is that journalists who receive such material are able to protect their sources. If this were not the case, the public would not see material that helps provide a clearer and accurate picture of important contemporary events – particularly vital when the US administration continues to express such overt hostility to the mass media.</p><img src="https://counter.theconversation.com/content/73558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Judith Townend is an associate research fellow at the Institute of Advanced Legal Studies. Research on journalistic source protection undertaken at the Information Law and Policy Centre, Institute of Advanced Legal Studies in 2016-17, was partly supported by Guardian News and Media. </span></em></p><p class="fine-print"><em><span>Richard Danbury is an associate research fellow at the Institute of Advanced Legal Studies. Research on journalistic source protection, undertaken at the Information Law and Policy Centre, Institute of Advanced Legal Studies in 2016-17, was partly supported by Guardian News and Media. Richard trains journalists for Channel 4, though is writing this in a personal capacity, and also runs the Channel 4 MA in investigative journalism at De Montfort University. </span></em></p>The US president’s attack on confidential sources is one of many legal and technological threats to public interest journalism, as a new report showsJudith Townend, Lecturer in media and information law, University of SussexRichard Danbury, Principal Lecturer in Investigative Journalism, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716072017-01-20T11:00:16Z2017-01-20T11:00:16ZIs part of Chelsea Manning’s legacy increased surveillance?<figure><img src="https://images.theconversation.com/files/153551/original/image-20170120-5260-o65qmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/big-brother-watching-giant-hand-magnifying-345947360">Via shutterstock.com</a></span></figcaption></figure><p>The military’s most prolific <a href="https://www.thenation.com/article/long-list-what-we-know-thanks-private-manning/">leaker of digital documents</a> has ushered in an age of even more increased surveillance over government workers. The legacy of Chelsea Manning’s actions is under discussion in the wake of the announcement that the former Army private will be released from military prison in May. In one of his last official acts, President Obama <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">commuted her sentence</a> for violations of the Espionage Act and copying and disseminating classified information. The commutation reduced her sentence from 35 years to the seven years she has already served, plus <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">four additional months needed to effect her release</a>.</p>
<p>In 2010, Manning, then presenting as male and going by the first name Bradley, was an intelligence analyst serving in Iraq. <a href="http://www.npr.org/sections/thetwo-way/2014/06/15/322252062/chelsea-manning-says-she-leaked-classified-info-out-love-for-country">Disillusioned by callous behavior and indiscriminate killing</a> of people in Afghanistan and Iraq by American soldiers, Manning copied and digitally released a <a href="https://www.theguardian.com/world/2013/jul/30/bradley-manning-wikileaks-revelations">massive trove of classified information</a>. The data included 250,000 cables from American diplomats stationed around the world, 470,000 Iraq and Afghanistan battlefield reports and logs of military incident reports, assessment files of detainees held at Guantanamo Bay and war zone videos of airstrikes in Afghanistan and Iraq war in which civilians were killed.</p>
<p>Government officials immediately expressed <a href="http://www.pbs.org/wgbh/frontline/article/just-how-damaging-were-mannings-wikileaks/">concerns about damage to national security, international relations and military personnel</a> because of the information contained in the material. There appears to have been <a href="http://www.huffingtonpost.com/2011/01/19/us-official-wikileaks-rev_n_810778.html">relatively little lasting damage</a> to American diplomacy. The military revelations were more damaging, with documents discussing <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">prisoner torture</a> and an <a href="http://www.spiegel.de/international/world/the-truth-about-task-force-373-war-logs-cast-light-on-dirty-side-of-afghanistan-conflict-a-708559.html">assassination squad made up of American special forces operators</a>. Those enraged American citizens and the international community alike, and may have hardened the resolve of adversaries.</p>
<p>But the most lasting effect will likely be a powerful new fear of so-called “insider threats” – leaks by people like Manning, working for the U.S. and having passed security clearance background checks. In the wake of Manning’s actions, the military and intelligence communities have been ramping up digital surveillance of their own personnel to unprecedented levels, in hopes of detecting leakers before they let their information loose on the world.</p>
<h2>Embarrassing to diplomats</h2>
<p>The initial official response was that the release of <a href="http://www.slate.com/articles/news_and_politics/explainer/2010/11/whats_a_diplomatic_cable.html">State Department cables</a> – internal communications between officials with candid assessments of international situations and even individual leaders’ personalities – would be so <a href="http://www.telegraph.co.uk/news/worldnews/northamerica/usa/8169040/WikiLeaks-Hillary-Clinton-states-WikiLeaks-release-is-an-attack.html">debilitating to foreign relations</a> that repair would take decades.</p>
<p>In reality, the cables were <a href="https://thecaucus.blogs.nytimes.com/2010/11/30/gates-on-leaks-wiki-and-otherwise/">more embarrassing than destructive</a>. A political uproar met the news that the U.S. and its purported ally Pakistan were working at cross-purposes: American forces were trying to fight against the Taliban and al-Qaida, while Pakistan was trying to offer them protection and even weapons. But overall, it didn’t significantly increase the existing tensions in <a href="https://foreignpolicy.com/2015/01/26/the-art-of-u-s-pakistan-relations/">American-Pakistani relations</a>. Other foreign officials may have <a href="https://www.theguardian.com/world/2013/aug/05/bradley-manning-leak-foreign-policy-sentencing">become more wary about sharing information</a> with Americans, but over time, new people come into key posts, the leak is forgotten and business continues as it has always done.</p>
<p>Foreign leaders about whom U.S. officials had made blunt and disparaging comments in the cables did suffer. For example, the cables revealed a <a href="https://www.theguardian.com/world/2010/dec/03/wikileaks-yemen-us-attack-al-qaida">secret agreement</a> in which the U.S. conducted drone strikes in Yemen while that country’s President Ali Abdullah Saleh publicly took the blame. Two years later, in 2012, a <a href="http://www.bbc.com/news/world-middle-east-17177720">popular revolution ousted him</a>. A similar fate befell the Tunisian President Zine El Abidine Ben Ali, whose lavish lifestyle – and lack of American support – was <a href="http://www.mcclatchydc.com/news/special-reports/article24607888.html">discussed in the cables</a>.</p>
<h2>Revealing military misdeeds</h2>
<p>More damaging to the U.S. was what was revealed in the battlefield reports Manning released, and called evidence of American soldiers’ “<a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/9900525/WikiLeaks-soldier-Bradley-Manning-I-wanted-to-expose-bloodlust-of-US-forces-in-Middle-East.html">bloodlust</a>.” For instance, Manning’s leaks disclosed the activities of an American assassination squad in Afghanistan. Called <a href="https://www.theguardian.com/world/2010/jul/25/task-force-373-secret-afghanistan-taliban">Task Force 373</a>, the unit comprised specially trained U.S. personnel from elite forces such as the Navy SEALs and the Army’s Delta Force. Its goal was to assassinate a range of targets including drug barons, drug makers and al-Qaida and Taliban figures. </p>
<p>The documents also showed U.S. military personnel shooting innocent civilians on the ground and from the air – <a href="https://www.theguardian.com/world/2010/apr/05/wikileaks-us-army-iraq-attack">among them a Reuters journalist</a>. They showed that American <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">authorities ignored extreme torture</a> inflicted on Iraqi prisoners, including sexual abuse and physical mistreatment, such as hanging detainees upside-down. Allegations of <a href="https://www.theguardian.com/world/2010/dec/02/foreign-contractors-hired-dancing-boys">child trafficking by U.S. military contractors</a> also came to light.</p>
<h2>Surveilling the potential messenger</h2>
<p>Manning is being hailed as a <a href="http://www.truth-out.org/news/item/17935-noam-chomsky-on-grittv-bradley-manning-should-be-regarded-as-a-hero">hero</a> and as a <a href="http://thehill.com/homenews/administration/314858-pence-mistake-to-commute-sentence-for-traitor-chelsea-manning">traitor</a>. There are arguments for both. The public has a right to know about official misdeeds carried out by the government and military. But those kinds of revelations can jeopardize our defense strategy and hurt our standing in the world community.</p>
<p>Manning’s leaks <a href="https://www.ncsc.gov/nittf/">raised alarms across the government</a> because they came from a trusted insider. In 2011, Obama issued <a href="https://www.whitehouse.gov/the-press-office/2011/10/07/executive-order-13587-structural-reforms-improve-security-classified-net">Executive Order 13587</a>, directing Executive Branch departments and agencies to <a href="https://www.ncsc.gov/nittf/docs/National_Insider_Threat_Policy.pdf">be on guard against insider threats</a>.</p>
<p>National Security Agency contractor <a href="https://www.theguardian.com/us-news/the-nsa-files">Edward Snowden’s leaks of NSA documents</a> in 2013 only heightened official fears. As a result, government organizations have <a href="https://www.theguardian.com/us-news/2016/mar/18/chelsea-manning-insider-threat-surveillance-government-employees">increased surveillance</a> and are <a href="http://www.pbs.org/newshour/rundown/us-intelligence-officials-monitor-federal-employees-security-clearances/">closely monitoring their employees’ online activity</a>. </p>
<p>With software and techniques also <a href="http://enterprise-encryption.vormetric.com/rs/vormetric/images/CW_GlobalReport_2015_Insider_threat_Vormetric_Single_Pages_010915.pdf">in use in the private sector</a>, government agencies <a href="http://www.dss.mil/documents/isp/ISL2016-02.pdf">and contractors</a> use computer systems that <a href="https://theconversation.com/panama-papers-revelation-we-must-rethink-data-security-systems-57464">monitor when employees are accessing</a>, copying, deleting and transferring files. </p>
<p>Computers’ <a href="http://www.cio.com/article/2400017/security0/how-to-prevent-thumb-drive-security-disasters.html">external media ports are also being watched</a>, to detect an employee connecting a <a href="https://www.us-cert.gov/ncas/tips/ST08-001">USB thumb drive</a> that could be used to smuggle documents out of a secure system. Workers’ keystrokes and other actions on their computers <a href="http://www.fedtechmagazine.com/article/2016/10/nsa-and-opm-turn-behavioral-analytics-combat-insider-threats">are being analyzed</a> <a href="http://www.cio.com/article/2687816/government-use-of-it/virtualization-cloud-complicate-insider-threats-for-federal-cios.html">in real time</a> to detect unauthorized activity, such as accessing restricted files or even connecting to file-sharing or social media sites.</p>
<p>Agencies and private companies with government contracts will also have to <a href="http://blogs.wsj.com/riskandcompliance/2016/09/01/the-morning-risk-report-defense-contractors-face-new-insider-threat-rule/">keep their employees’ after-work lives under greater surveillance</a>, looking for behavior or situations that might compromise government security. The effectiveness of these efforts is <a href="http://www.mcclatchydc.com/news/special-reports/insider-threats/article24750850.html">not yet clear</a>.</p>
<h2>Leniency or mercy?</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chelsea Manning.</span>
<span class="attribution"><span class="source">U.S. Army</span></span>
</figcaption>
</figure>
<p>Obama characterized Manning’s release as a <a href="http://www.npr.org/sections/thetwo-way/2017/01/17/510307055/president-obama-commutes-chelsea-mannings-prison-sentence">humanitarian gesture</a> because of her personal circumstances. The day after she was sentenced, Manning revealed that <a href="http://www.nbcnews.com/feature/nbc-out/chelsea-manning-potent-symbol-transgender-americans-n709126">she is transgender and identifies as a woman</a>; nevertheless, she was held in a <a href="https://www.nytimes.com/2017/01/13/us/chelsea-manning-sentence-obama.html">men’s military prison</a>. </p>
<p>The military was under increasing public and even <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">international pressure</a> to allow her to <a href="https://www.aclu.org/blog/speak-freely/government-chelsea-manning-were-denying-your-treatment-your-own-good">make a physical and biological transition</a> – a procedure neither the military nor any U.S. prison has <a href="http://www.cnn.com/2016/09/13/politics/chelsea-manning-gender-reassignment-surgery/">ever dealt with or paid for before</a>. (She is likely to <a href="http://www.usatoday.com/story/news/politics/2017/01/18/chelsea-manning-lose-transgender-benefits-dishonorable-discharge/96742180/">lose her military medical coverage</a> upon her release from prison, leaving her medical care in question.)</p>
<p>Despite Obama’s perspective, Manning’s release could be viewed as an act of leniency, a signal that others might escape decades of prison time if they, too, were to violate their oaths of secrecy and reveal confidential public information. But fewer might get the chance to do so, because insiders are trusted less and being watched more.</p><img src="https://counter.theconversation.com/content/71607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sanjay Goel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Government agencies and contractors are now less trusting of their workers, and keeping a much closer eye on them, both on and off the job.Sanjay Goel, Professor of Information Technology Management, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/714732017-01-18T22:56:11Z2017-01-18T22:56:11ZClemency for Chelsea Manning – but will Assange or Snowden also find the US merciful?<figure><img src="https://images.theconversation.com/files/153335/original/image-20170118-26573-1fnfnbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The timing of Chelsea Manning’s commutation further undermines any chance of similar approaches to the situations of Julian Assange or Edward Snowden.</span> <span class="attribution"><span class="source">Reuters/Pierre Albouy</span></span></figcaption></figure><p>US President Barack Obama has <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0">commuted the sentence of Chelsea Manning</a>. A former army intelligence operative, Manning was sentenced by court martial in 2013 to <a href="https://www.washingtonpost.com/world/national-security/judge-to-sentence-bradley-manning-today/2013/08/20/85bee184-09d0-11e3-b87c-476db8ac34cd_story.html?utm_term=.85d6f87b74d5">35 years’ imprisonment</a> for espionage crimes relating to the mass leaking of military and diplomatic material. </p>
<p>She will now be released in May 2017, having served seven years including her time in confinement before and during her trial. </p>
<p>Manning’s lawyers argued she was motivated by a desire to <a href="http://www.abc.net.au/news/2013-06-05/bradley-manning-trial/4733550">expose the reality of war</a> to the American people. She leaked more than 700,000 items of interest to whistleblower website WikiLeaks. It published many – including videos of airstrikes that <a href="http://www.abc.net.au/news/2017-01-18/who-is-chelsea-manning/8190214">killed civilians</a> in Iraq and Afghanistan.</p>
<p>At the time of sentencing, the American Civil Liberties Union (ACLU) contrasted Manning’s punishment with the <a href="https://www.theguardian.com/world/2013/aug/21/bradley-manning-35-years-prison-wikileaks-sentence">relative impunity</a> of military personnel who tortured prisoners and killed civilians. According to the ACLU’s Ben Wizner: </p>
<blockquote>
<p>A legal system that doesn’t distinguish between leaks to the press in the public interest and treason against the nation will not only produce unjust results, but will deprive the public of critical information that is necessary for democratic accountability.</p>
</blockquote>
<h2>Reaction to the announcement</h2>
<p><a href="https://www.chelseamanning.org/">Manning’s supporters</a> have welcomed Obama’s decision, particularly given her two suicide attempts last year. </p>
<p>At the time of her trial, Chelsea Manning was known as a man named Bradley. She has since identified as a transgender woman and undergone hormonal and psychological therapy, but remains in a <a href="https://www.nytimes.com/2017/01/13/us/chelsea-manning-sentence-obama.html">men’s prison</a>. </p>
<p><a href="http://www.amnestyusa.org/get-involved/take-action-now/urgent-action-demand-commutation-for-chelsea-manning-usa-ua-27716">Amnesty International</a> has campaigned for Manning’s release. The human rights group claims she was denied due process at trial and treated cruelly in prison. It regards Manning as a human rights defender for exposing public interest material. </p>
<p>Amnesty’s conclusions were endorsed by the UN special rapporteur on torture, <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">Juan Mendez</a>, who found the conditions of Manning’s imprisonment cruel, inhumane and potentially torturous. </p>
<p>WikiLeaks founder Julian Assange also welcome the commutation. He called Manning a hero and demanded an end to the “<a href="http://indianexpress.com/article/world/julian-assange-welcomes-barack-obamas-decision-to-commute-chelsea-manning-sentence-4479482/">war on whistleblowers</a>”. </p>
<p>Manning’s fellow intelligence operative <a href="https://twitter.com/Snowden/status/821476926372118531">Edward Snowden</a> similarly thanked Manning “for what you did for everyone”, and wished her strength in her remaining months of imprisonment.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"821476926372118531"}"></div></p>
<h2>A merciful US government?</h2>
<p>The White House is celebrating Obama’s record of 1385 pardons and sentence commutations during his administration. Obama’s exercise of these extraordinary presidential powers was hailed as evidence of his <a href="https://www.whitehouse.gov/blog/2017/01/17/president-obama-has-now-granted-more-commutations-any-president-nations-history">remarkable mercy</a>.</p>
<p>Yet the Obama administration has <a href="https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning">criminalised whistleblowing</a> in the national security context like no previous US government. It is <a href="http://www.washingtontimes.com/news/2017/jan/13/obama-suddenly-wants-protect-whistleblowers-igs/">notorious</a> for undertaking nine prosecutions under the WWI-era Espionage Act. This is more than twice the number of prosecutions under all previous administrations.</p>
<p>Low- and mid-level operatives like Manning have received harsh sentences, while the torture and human rights abuses they have exposed go unpunished – and more senior officials escape sanction for leaking. Even military operatives convicted of <a href="https://theintercept.com/2016/07/01/obama-administration-finally-releases-its-dubious-drone-death-toll/">war crimes</a>, murder and rape have received considerably shorter sentences than that initially delivered to Manning.</p>
<p>Some sources have critiqued Obama’s commutation of Manning’s sentence as a cynical and all-too-late development, given it followed eight years of efforts to “<a href="http://www.washingtontimes.com/news/2017/jan/13/obama-suddenly-wants-protect-whistleblowers-igs/">diminish and silence</a>” whistleblowers and watchdogs.</p>
<p>A <a href="https://theintercept.com/2016/07/01/obama-administration-finally-releases-its-dubious-drone-death-toll/">lack of transparency</a> has characterised Obama’s massive expansion of the drone program and the idea of borderless war against terrorism.</p>
<h2>A precedent for Assange, Snowden and others?</h2>
<p>The announcement of Manning’s commutation raises questions regarding the future of other high-profile leakers. </p>
<p>Since 2012, Assange has been under effective house arrest in the Ecuadorean embassy in London. He has been <a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/11681502/Why-is-Julian-Assange-still-inside-the-embassy-of-Ecuador.html">granted asylum</a> to protect against the <a href="http://heavy.com/news/2017/01/will-julian-assange-be-extradited-to-united-states-us-after-chelsea-manning-clemency-obama-wikileaks-extradition-offer/">possibility of prosecution</a> for espionage in the US.</p>
<p>Earlier this month, the WikiLeaks Twitter account announced Assange <a href="https://twitter.com/wikileaks/status/819630102787059713">would agree to US extradition</a> if Manning was released. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"819630102787059713"}"></div></p>
<p>However, Assange now says Manning ought to have received clemency and been released immediately. <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/news/julian-assange-chelsea-manning-barack-obama-hand-in-embassy-arrest-extradition-us-a7533911.html">Assange’s lawyers</a> have indicated that the terms of the commutation do not meet his requirements to consent to extradition. </p>
<p>Assange’s situation is complicated by the persistent threat of “<a href="https://justice4assange.com/">lesser rape</a>” charges in Sweden.</p>
<p>It seems even less likely that Manning’s commutation will prompt a change in circumstance for Snowden. The former CIA contractor leaked classified material, including the revelation that the NSA collects Americans’ <a href="http://www.thejournal.ie/manning-snowden-obama-3192213-Jan2017/">phone and internet data</a>.</p>
<p>Obama has denied he has the power to pardon Snowden, because Snowden has not submitted himself to the judgement of a court. Yet US presidents as recent as Bill Clinton have delivered <a href="http://www.thejournal.ie/manning-snowden-obama-3192213-Jan2017/">pre-trial pardons</a>.</p>
<p>This week a new element of this stance emerged. White House spokesman Josh Earnest effectively identified Snowden as a <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0">traitor</a> because of his temporary asylum in Russia: </p>
<blockquote>
<p>Mr Snowden fled into the arms of an adversary and has sought refuge in a country that most recently made a concerted effort to undermine confidence in our democracy.</p>
</blockquote>
<h2>What now under Donald Trump?</h2>
<p>The timing of Manning’s commutation further undermines any chance of similar approaches to the situations of Assange or Snowden. With President-elect Donald Trump to be sworn in this week, an even less conciliatory tone is likely to be taken in relation to whistleblowers. </p>
<p>This was evident in Republican senator <a href="https://www.theguardian.com/us-news/2017/jan/17/chelsea-manning-sentence-commuted-barack-obama?CMP=Share_iOSApp_Other">John McCain’s response</a> response to the announcement of Manning’s commutation: </p>
<blockquote>
<p>It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to WikiLeaks, a virulently anti-American organisation that was a tool of Russia’s recent interference in our elections.</p>
</blockquote>
<p><a href="https://twitter.com/realDonaldTrump/status/457314934473633792">Trump</a> has previously made his views on Snowden very clear:</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"457314934473633792"}"></div></p>
<p>Obama’s legacy of <a href="http://www.newyorker.com/news/daily-comment/obama-leaves-trump-a-mixed-legacy-on-whistle-blowers">zealous criminalisation</a> of whistleblowers sets:</p>
<blockquote>
<p>… a precedent that some fear Donald Trump will invoke … to further muzzle dissent. </p>
</blockquote>
<p>By no means has Trump indicated commitment to <a href="http://europe.newsweek.com/2016-election-donald-trump-press-freedom-first-amendment-520389?rm=eu">freedom of the press</a>, either.</p><img src="https://counter.theconversation.com/content/71473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of the National Committee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>The announcement of Chelsea Manning’s commutation raises questions regarding the future of other high-profile leakers, like Julian Assange and Edward Snowden.Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/681072016-11-03T16:19:13Z2016-11-03T16:19:13ZGuardian interview finally brings an MI5 boss in from the cold – but why?<p>I cannot believe that a frisson did not pass through The Guardian’s offices when the paper’s executives had to balance the value of an <a href="https://www.theguardian.com/uk-news/2016/nov/01/andrew-parker-mi5-director-general-there-will-be-terrorist-attacks-in-britain-exclusive">exclusive interview with Andrew Parker</a>, the director-general of the security service MI5, against the fact that it meant giving front page space to the loudest and most unrepentant critic of the paper’s work with whistleblower Edward Snowden.</p>
<p>The Guardian made much of the exclusivity of it being the <a href="https://www.theguardian.com/uk-news/2016/oct/31/andrew-parker-increasingly-aggressive-russia-a-growing-threat-to-uk-says-mi5-head">first-ever interview</a> with a serving head of MI5 by a newspaper – but that was not the really significant point. MI5 chiefs have given speeches in the past that were targeted at the press and duly published and broadcast widely. What was significant was Parker’s choice of newspaper. By picking The Guardian, Parker was targeting readers of a paper that include some of the most ardent critics and active campaigners against the huge expansion of the – largely unaccountable – resources and powers of the UK intelligence community. </p>
<p>In the interview, which was <a href="http://www.telegraph.co.uk/news/2016/10/31/spy-chief-says-british-intelligence-has-foiled-12-terror-plots-s/">widely picked up</a> across the rest of the media, Parker made an erudite case for the value of MI5’s work in an unstable world – and identified numerous threats. From jihadists – notably 3,000 “violent Islamic extremist in the UK, mostly British”. From cyber and other dangers from the land of Putin – “Russia is at work across Europe and in the UK today. It is MI5’s job to get in the way of that.” And he cited a resurgence of Republican terrorism in Northern Ireland. Parker has taken his cogent if one-sided argument to his sternest critics.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=724&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=724&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=724&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=909&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=909&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144428/original/image-20161103-25359-9pcupv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=909&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Criticised: Edward Snowden.</span>
<span class="attribution"><span class="source">Laura Poitras / Praxis Films</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The Guardian reporters did tax him on his current position on the paper’s publication of the Snowden material from 2013 which <a href="https://www.theguardian.com/media/2014/apr/14/guardian-washington-post-pulitzer-nsa-revelations">won it a Pulitizer Prize</a> – but condemnation from the government, as well as the paper’s visceral Fleet Street enemies The Mail, The Sun, The Times and The Telegraph. And, of course, the intelligence lobby – notably <a href="http://www.independent.co.uk/news/uk/politics/mi5-chief-andrew-parker-edward-snowdens-gchq-leaks-gave-terrorists-the-gift-to-evade-us-and-strike-8867399.html">Parker himself</a>. </p>
<p>Has his opinion changed? Resolutely not. He held his own on a number of other questions with no further concessions to accountability or civil liberties. He said that MI5 has stopped 12 terrorist operations in the UK in the past three years but neither the Guardian reporters nor its readers are in any position to challenge that assertion. </p>
<h2>Public face of spying</h2>
<p>What this interview demonstrates is the increasing sophistication of the intelligence lobby and its media engagement. It is worth remembering that it was less than a quarter of a century ago that the government changed its policy of never revealing details of intelligence work or the names of intelligence chiefs.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=808&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=808&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=808&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1016&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1016&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144425/original/image-20161103-25349-r76hzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1016&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Stella Rimington was the first MI5 director-general to be publicly named.</span>
<span class="attribution"><span class="source">MI5</span></span>
</figcaption>
</figure>
<p>Shortly after MI5 was acknowledged legally, the name of the director-general of MI5 – <a href="https://www.mi5.gov.uk/dame-stella-rimington">Stella Rimington</a> – <a href="http://news.bbc.co.uk/1/hi/uk/1532221.stm">was revealed officially for the first time in 1993</a>. </p>
<p>Since then, the intelligence community, which had once had no official engagement with the public sphere, has learned to use it to effect. Sceptics may say that Parker agreed to the interview to influence the House of Lords’ vote on the <a href="https://www.parliament.uk/business/news/2016/june/lords-debates-investigatory-powers-bill/">Investigatory Powers Bill</a>. But the awful truth is that Parker does not need to lobby for the Bill. Backed by a prime minister who, as home secretary, made it her business to get an unadulterated version of the Investigatory Powers Bill into law, there is little danger of any changes being made. This is a <a href="http://www.newstatesman.com/science-tech/2016/10/everything-you-need-know-about-terrifying-investigatory-powers-bill">draconian piece of legislation</a> the like of which we have not seen before, with too few safeguards and an accountability system that is still not independent enough. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"793217489668825089"}"></div></p>
<p>Whether the interview was a chance to fire a shot across the bows of the Russians or not, Parker’s interview for the Guardian was a complete publicity win for him. The Guardian “interrogation” produced nothing substantial. At one point, the reporters excitedly teased out of the lofty (“well over 6ft”) Parker new details of his Newcastle comprehensive school and Cambridge University background and then stated that MI5 has been traditionally drawn from the public school elite. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=754&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=754&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=754&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=948&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=948&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144424/original/image-20161103-25353-ch7j35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=948&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former MI5 director-general, Eliza Manningham-Butler.</span>
<span class="attribution"><span class="source">MI5</span></span>
</figcaption>
</figure>
<p>That demonstrates a worrying lack of knowledge of MI5 ethnography which has tended to be different from <a href="https://www.sis.gov.uk/">MI6</a> and <a href="https://www.gchq.gov.uk/">GCHQ</a>. MI5 may have changed from the <a href="http://www.mi5.com/security/mi5org/spycatcher.htm">Spycatcher days</a> of being staffed by former British and colonial special branch and military people – but anyone who has had contact with MI5 staff in more recent years knows that recruits are diverse, often ex-teachers or ex-City types from redbrick or lesser universities who want a bit more purpose and excitement in their lives. </p>
<p>Aside from <a href="https://www.mi5.gov.uk/eliza-manningham-buller-baroness-manningham-buller">Eliza Manningham-Buller</a>, not many of the chiefs were “posh”. </p>
<p>This is a small but important point about the quality of national security reporting. We have very little information about how the intelligence community now operates as even the most up-to-date Snowden document is now four years old. So Parker was able to make a strong case for the imminent 25% increase in MI5 staffing and commensurate other resources – all underpinned by the IPB.</p>
<p>Those who seek more transparency and accountability for intelligence may feel a little chagrined at the emergence of a lobby so able to dominate the public sphere. Never before have government and its intelligence services had such powers and techniques of invasive mass surveillance available – and thus the potential to control the population as a whole and those who dissent in particular – yet with so <a href="http://www.telegraph.co.uk/comment/8507818/MI5-will-have-to-be-more-accountable.html">little accountability</a> by parliament or the fourth estate.</p><img src="https://counter.theconversation.com/content/68107/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Lashmar is part of a research group that is funded by ESRC but this article has not been funded.</span></em></p>By choosing to talk to MI5’s most outspoken press critics, the spy boss has made a very shrewd move.Paul Lashmar, Senior Lecturer in Journalism, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/636132016-10-20T08:41:09Z2016-10-20T08:41:09ZWhat is the dark web and how does it work?<figure><img src="https://images.theconversation.com/files/138499/original/image-20160920-12483-13whhea.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock/ArtFamily</span></span></figcaption></figure><p>We often hear about the dark web being linked to <a href="https://www.theguardian.com/world/2016/jul/31/police-in-jacques-hamel-case-investigate-telegram-messaging-app-link">terrorist plots</a>, drug deals, knife sales and child pornography, but beyond this it can be hard to fully understand how the dark web works and what it looks like. </p>
<p>So just for a minute imagine that the whole internet is a forest – a vast expanse of luscious green as far as the eye can see. And in the forest are well worn paths – to get from A to B. Think of these paths as popular search engines – like Google – allowing you as the user the option to essentially see the wood from the trees and be connected. But away from these paths – and away from Google – the trees of the forest mask your vision. </p>
<p>Off the paths it is almost impossible to find anything – unless you know what you’re looking for – so it feels a bit like a treasure hunt. Because really the only way to find anything in this vast forest is to be told where to look.
This is how the <a href="https://theconversation.com/explainer-what-is-the-dark-web-46070">dark web</a> works – and it is essentially the name given to all the hidden places on the internet. </p>
<p>Just like the forest, the dark web hides things well – it hides actions and it hides identities. The dark web also prevents people from knowing who you are, what you are doing and where you are doing it. It is not surprising, then, that the dark web is often used for <a href="https://theconversation.com/in-the-webs-hidden-darknet-criminal-enterprise-is-thriving-32440">illegal activity</a> and that it is hard to police. </p>
<h2>Technical challenges</h2>
<p>Dark web technologies are robustly built without central points of weakness, making it hard for authorities to infiltrate. Another issue for law enforcement is that – like most things – the dark web and its technologies can also be used for both good and evil. </p>
<p>So in the same way criminals use it to hide what they are up to, it can also help groups fight oppression or individuals to whistle blow and exchange information completely anonymously. In fact, <a href="https://www.torproject.org/">Tor</a> – “free software and an open network that helps you defend against traffic analysis” and a critical part of the so-called dark web – has been funded by a range of Western governments, including the <a href="https://www.torproject.org/about/sponsors.html.en">US</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138500/original/image-20160920-12441-b7se4g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Just like the forest, the dark web hides things well.</span>
<span class="attribution"><span class="source">Markus Schmidt-Karaca/Shutterstock</span></span>
</figcaption>
</figure>
<p>A service like Tor, is global, in no one physical location, and is operated by no one commercial entity – which is typical of these technologies. </p>
<p>Theoretically, the only way to intercept communications sent via something like Tor is to install a “backdoor” in the application everyone uses. A <a href="http://bit.ly/2emVoQM">backdoor</a> is meant to provide a secret way to bypass an application’s protection systems – in a similar way to how people hide backdoor keys in flower pots in the garden in case they get locked out of their house.</p>
<p>However, the use of a “backdoor” could also allow any governments – even oppressive ones – to intercept communications. Indeed, cyber breaches have shown us that any backdoor or weakness can be found and exploited by hackers in order to steel people’s information, pictures and data.</p>
<h2>Exploiting the darkness</h2>
<p>Of course, none of this is new – criminals have always found ways to communicate with each other “under the radar”. Mobile phones have been used by criminal gangs to organise themselves for a long time, and as a society we are comfortable with laws enabling police to tap telephones and catch criminals. </p>
<p>Unfortunately, infiltrating the dark web is not quite as easy as tapping the local telephone exchange or phone network. Because the dark web is quite unlike the telephone system – which has fixed exchanges and is operated by a small set of companies, making interception easier.</p>
<p>Even if tapping the dark web was a straightforward exercise, morally it is still fraught with questions. In the UK, the <a href="https://www.gov.uk/government/publications/draft-investigatory-powers-bill">Draft Investigatory Powers Bill</a>, dubbed the snoopers’ charter, sets out the powers and governance for Law Enforcement over communications systems. However, the discussion of the bill has been impacted by the <a href="http://bit.ly/2dsfuYl">Snowden revelations</a> which have demonstrated that society is not comfortable with mass, unwarranted surveillance. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138503/original/image-20160920-12475-1goq8fj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protests in Berlin for the protection of civil rights on the internet.</span>
<span class="attribution"><span class="source">Sergey Kohl / Shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Surveillance society</h2>
<p>This public distrust has led to many technology companies pushing back when it comes to accessing users’ devices. We have seen <a href="http://www.theregister.co.uk/2016/07/14/microsoft_wins_landmark_irish_warrant_case_against_usa/">Microsoft take on the US government</a> over access to email and <a href="https://theconversation.com/forcing-apple-to-open-doors-to-our-digital-homes-would-set-a-worrying-precedent-55085">Apple against the FBI</a> when petitioned to unlock an iPhone of a known terrorist. </p>
<p>And yet some of these same communications companies have been harvesting user data for their own internal processes. Famously, Facebook enabled <a href="http://www.bbc.co.uk/news/technology-35969739">encryption on WhatsApp</a>, protecting the communications from prying eyes, but could still look at <a href="https://threatpost.com/whatsapp-encryption-a-good-start-but-far-from-a-security-cure-all/117230/">data in the app itself</a>.</p>
<p>For now, though, it is clear that we still have a long way to go until society, government, law enforcement and the courts settle on what is appropriate use of surveillance both on and offline. And until then we will have to live with the fact that the one person’s freedom fighting dark web is another’s criminal paradise.</p><img src="https://counter.theconversation.com/content/63613/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Prince does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The dark web is often used for illegal activity and because of the way it’s structured, it’s hard to police.Daniel Prince, Associate Director Security Lancaster, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/641242016-09-23T03:46:53Z2016-09-23T03:46:53ZThe price of connection: ‘surveillance capitalism’<figure><img src="https://images.theconversation.com/files/137697/original/image-20160914-4942-18tbljt.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shifts in our communication infrastructures have reshaped the very possibilities of social order driven by markets and commercial exploitation.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/marc_smith/5474442495">Marc Smith/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p><em>This article is part of the <a href="https://theconversation.com/au/topics/democracy-futures">Democracy Futures</a> series, a <a href="http://sydneydemocracynetwork.org/democracy-futures/">joint global initiative</a> with the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.</em></p>
<hr>
<p>Imagine, if you can, a period long before today’s internet-based connectivity. Imagine that, in that distant time, the populations of every country were offered a new plan. The plan would involve linking up every space of social interaction, most sites of work, a large proportion of private moments of reflection, and a significant proportion of family interactions.</p>
<p>Once linked up miraculously, all these diverse spaces of human life would be transposed onto a single seamless plane of archiving, monitoring and processing.</p>
<p>This link-up, those populations are told, would have some remarkable consequences. Each one of those once separate sites could be connectable in real time to every other. The contents of what went on there would become linkable to and from everywhere. </p>
<p>Less good perhaps, every site would, in principle, be monitorable from every other and would be so monitored by institutions with the appropriate infrastructure. Better, perhaps, this seamless plane of connection would provide the basis for building new types of knowledge about the human world, which would never before have been linked as a totality in that way.</p>
<p>Can we imagine those populations accepting such a proposal without hesitation? Probably not. Yet this, in crude outline, is the world we are being asked to celebrate today. </p>
<p>Over the past 30 years, shifts in our communication infrastructures have enabled large-scale attempts to reshape the very possibilities of social order in the interests of market functioning and commercial exploitation.</p>
<p>Some see this as a new <a href="http://www.hbs.edu/faculty/Pages/item.aspx?num=49122">“surveillance capitalism”</a>. This is focused on data extraction rather than the production of new goods, thus generating intense concentrations of power over extraction and threatening core values such as freedom. </p>
<p>I agree, but how does this threat work exactly? And what might be the “price” of this transformation along dimensions that economists cannot count?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/GhWJTWUvc7E?wmode=transparent&start=259" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Corporate surveillance promises convenience and government surveillance protection, but have we given up more than we’ve gained?</span></figcaption>
</figure>
<h2>The new infrastructures of connection</h2>
<p>When I highlight the price of connection, it is not connection itself that is the problem. It is what comes with connection, in particular its infrastructure of surveillance that comprises the Faustian bargain we need to evaluate.</p>
<p>Surveillance capitalism only became possible through the development of the internet. While the internet is often credited with bringing freedom, its most important feature is connection, not freedom. </p>
<p>The internet changes the scale on which human beings are in touch with each other. The connectability of all packets of information, all sites from which we access the internet, and all actors in that space – soon to be expanded into the domain of the <a href="http://www.wired.com/insights/2014/11/the-internet-of-things-bigger/">“internet of things”</a> – creates a two-way bargain: if every point in space-time is connectable to every other, then it is susceptible to monitoring from every other.</p>
<p>Deep economic pressures are driving the intensification of connection and monitoring online. The spaces of social life have become open to saturation by corporate actors, directed at the making of profit and/or the regulation of action. As <a href="https://books.google.com.au/books?id=m9_DyhPGhEMC&pg=PA17&lpg=PA17&dq=the+centrality+of+corporate+power+is+a+direct+reality+at+the+very+heart+of+the+digital+age&source=bl&ots=M0oK9qHEFl&sig=O8sEfzy6WnoP58TtsXRphYL5kUE&hl=en&sa=X&ved=0ahUKEwiP-OuynJrPAhUJ92MKHb2ZDjsQ6AEIHzAA#v=onepage&q=centrality%20of%20corporate%20power&f=false">Joseph Turow writes</a>:</p>
<blockquote>
<p>… the centrality of corporate power is a direct reality at the very heart of the digital age.</p>
</blockquote>
<p>For more than a decade now, the difficulty of targeting messages at particular consumers online has driven advertisers to reach audiences through the continuous tracking of individuals, wherever they are online.</p>
<p>Online platforms, in spite of their innocent-sounding name, are a way of optimising the overlap between the domains of social interaction and profit. Capitalism has become focused on expanding the proportion of social life that is open to data collection and data processing: it is as if the social itself has become the new target of capitalism’s expansion. </p>
<p>Bruce Schneier <a href="https://www.schneier.com/blog/archives/2013/08/the_publicpriva_1.html">put it</a> bluntly:</p>
<blockquote>
<p>The primary business model of the internet is built on mass surveillance.</p>
</blockquote>
<p>So what are the costs of this for social life?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/D1oxOW4tgyw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Joseph Turow argues that online advertising involves ‘one of history’s most massive stealth efforts in social profiling’.</span></figcaption>
</figure>
<h2>Reconstructing the social</h2>
<p>It’s puzzling we are not already more angry about this transformation. We never liked mass surveillance in its historic forms. When we watch The Lives of Others, a film about former East Germany, we feel compassion for the lonely operative condemned to a life (of watching the lives of others) that both he and we know is profoundly wrong. </p>
<p>So how can a whole infrastructure of surveillance that was, elsewhere, so obviously wrong suddenly become right, indeed celebrated, when instituted by start-up companies on the American West Coast?</p>
<p>One explanation is that this surveillance does not appear to us as an end in itself, but as the necessary means to a supposedly much larger good. Health is just one area where individual submission to continuous external surveillance is regarded as positive. The benefits of interpreting (and so necessarily gathering) big data are often <a href="https://www.theguardian.com/society/2015/jan/19/prof-bruce-keogh-wearable-technology-plays-crucial-part-nhs-future">presented</a> as clear: “a revolution in self-care” which “actually keep[s] somebody safe and feeling good”. </p>
<p>Gary Wolf, guru of the Quantified Self movement, <a href="http://www.nytimes.com/2010/05/02/magazine/02self-measurement-t.html?_r=0">wrote</a>:</p>
<blockquote>
<p>Automated sensors … remind us that our ordinary behaviour contains obscure quantitative signals that can be used to inform our behaviour, once we learn to read them.</p>
</blockquote>
<p>So our lives are now seen as always already “data”.</p>
<p>The result can seem comforting. The Guardian recently <a href="https://www.theguardian.com/money/2016/mar/26/black-box-car-insurance-cuts-young-drivers-premiums">reported</a> an in-car observation device for young drivers that insurers are offering as part of a deal on reduced premiums. The headline in the print edition was: </p>
<blockquote>
<p>A helpful spy behind the dashboard is a young driver’s new best friend. </p>
</blockquote>
<p>At work here is a restructuring of social relations around data collection that is as profound as the building of long-distance networks on which the market structure of industrial capitalism depends. As that period’s great historian, Karl Polanyi, <a href="http://inctpped.ie.ufrj.br/spiderweb/pdf_4/Great_Transformation.pdf">put it</a>, the creation of new markets requires “the effect of highly artificial stimulants administered to the body social”.</p>
<p>Today, social stimulation is not needed to create networked markets – they have existed for 200 years or more – but to link every social activity into a datafied plane, a managed continuity from which value can be generated.</p>
<h2>Surrendering autonomy</h2>
<p>There is something deeply wrong here, but what exactly? The problem goes deeper than the risk of ruthless corporations abusing our data: probably most of us trust Facebook some of the time.</p>
<p>A deeper problem emerged in the wake of the Snowden <a href="https://theconversation.com/us-government-clips-nsa-wings-but-snooping-is-a-global-effort-42771">revelations about the US National Security Agency</a> (NSA) and, in the UK, <a href="https://theconversation.com/gchqs-surveillance-hasnt-proved-itself-to-be-worth-the-cost-to-human-rights-48465">GCHQ’s interception</a> of commercial data streams. Quentin Skinner <a href="https://www.opendemocracy.net/ourkingdom/quentin-skinner-richard-marshall/liberty-liberalism-and-surveillance-historic-overview">noted</a>: </p>
<blockquote>
<p>… not merely by the fact that <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">someone is reading my emails</a> but also by the fact that someone has the power to do so should they choose … leaves us at the mercy of arbitrary power … What is offensive to liberty is the very existence of such arbitrary power.</p>
</blockquote>
<p>The problem is not so much someone reading my emails, but the collection of metadata. In any case, if the mere existence of such power contradicts liberty, why were we not already offended by the commercial power to collect data on which powerful nation-states were merely piggy-backing?</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/134857/original/image-20160821-30406-xcot14.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">We protest the arbitrary power of governments, so why not corporations?</span>
<span class="attribution"><span class="source">Mike Herbst/flickr</span></span>
</figcaption>
</figure>
<p>The answer is that surveillance capitalism threatens an aspect of our freedom so basic that we are not used to defending it. Curiously, it is the German philosopher Hegel who can help us to identify where the problem might lie. </p>
<p>Like Kant, Hegel believed that the greatest good was free will, but he went further in clarifying what freedom might involve. For Hegel, freedom is impossible without the self having some space of autonomy where it can be in a reflective relation with itself. As he <a href="http://www.cambridge.org/us/academic/subjects/philosophy/nineteenth-century-philosophy/hegels-practical-philosophy-rational-agency-ethical-life?format=PB">put it</a>:</p>
<blockquote>
<p>… freedom is this: to be with oneself in the other.</p>
</blockquote>
<p>Here the self is not isolated, but endlessly being mediated through the world: the world of other things and people, and of its past self and actions. But it can be free if it comes to grasp such processes as its own – related to its goals and not those of others. It is just this that becomes harder to sustain under surveillance capitalism.</p>
<p>In a world where our moment-to-moment existence is already being tracked and (according to some) better understood by external data-processing systems, the very idea of an independent space of subjectivity from which one can have “freedom” collapses. </p>
<p>Corporate power is already “closer” to the subject than other humans or even the subject’s past self. This “other” – an external system with data-processing capacities far beyond those of a human brain – is not the “other” Hegel had in mind when defining freedom.</p>
<p>For some, nonetheless, the benefits of playing with the tools of surveillance capitalism still seem to outweigh the costs. But we are beginning to sense the ethical limits of capitalism’s new game. </p>
<p>Can we imagine an app that “measures” whether one is really in love with someone else? Or an app that compares how one’s processes of creativity hold up against established measures of creative inspiration? How about an app that compares the “depth” of one’s grieving for a loved one against others’ grief? </p>
<p>When does our submission to measurement hit against something we must protect as “ours”?</p>
<figure>
<iframe src="https://player.vimeo.com/video/155246808" width="500" height="281" frameborder="0" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen=""></iframe>
<figcaption><span class="caption">What will we give up to be ‘connected’?</span></figcaption>
</figure>
<h2>Where next?</h2>
<p>It is not enough just to disconnect. What’s needed is more collective reflection on the costs of capitalism’s new data relations for our very possibilities of ethical life. </p>
<p>All social struggle starts with the work of the imagination, so which vision do you prefer? Is it Wired cofounder Kevin Kelly’s <a href="https://www.youtube.com/watch?v=nF-5CMozGWY">vision</a> of “technology stitching together all the minds of the living … the whole aggregation watching itself through a million cameras posted daily”? Or are we entering, to quote <a href="https://sebald.wordpress.com/essays/the-silent-catastrophe/">W.G. Sebald</a>, “a silent catastrophe that occurs almost unperceived”?</p>
<p>Whichever vision you prefer, what is being built is not what we have known as freedom: and that is a choice whose price we cannot avoid.</p><img src="https://counter.theconversation.com/content/64124/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nick Couldry receives funding for the research reported on in this article from the Enhancing Life program funded by the University of Chicago and the John Templeton Foundation: <a href="http://enhancinglife.uchicago.edu/">http://enhancinglife.uchicago.edu/</a> . </span></em></p>Capitalism has become focused on expanding the proportion of social life that is open to data collection and processing – as if the social itself has become the new target of capitalism’s expansion.Nick Couldry, Professor of Media, Communications and Social Theory, London School of Economics and Political ScienceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/653102016-09-19T19:09:33Z2016-09-19T19:09:33Z‘Snowden,’ a picture of the cybersecurity state<figure><img src="https://images.theconversation.com/files/138304/original/image-20160919-11103-1eo8c1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What can 'Snowden' teach us about cybersecurity?</span> <span class="attribution"><span class="source">Jürgen Olczyk/Open Road Films</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>With the release of a new film about <a href="https://twitter.com/Snowden">Edward Snowden</a>, the man who revealed <a href="https://www.theguardian.com/world/series/the-snowden-files">secret documents detailing a massive U.S. government spying program</a>, the debate about his character continues. That includes a renewed effort to <a href="http://www.nytimes.com/2016/09/15/opinion/pardon-edward-snowden.html">encourage President Obama to pardon him</a>. But, as Snowden himself might point out, what should give us pause is government intelligence agencies’ power. </p>
<p>The extent and scope of their ability to intercept communications and collect information is mind-boggling. “<a href="https://snowdenfilm.com/">Snowden</a>” the movie lays bare National Security Agency surveillance programs that show little regard for citizen privacy, and the duplicitous statements the NSA makes about its activities.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=799&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=799&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=799&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138342/original/image-20160919-11095-afn0p9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Edward Snowden.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Edward_Snowden_2013-10-9_(1)_(cropped).jpg">WikiLeaksChannel</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The movie’s narrative tells the story <a href="http://www.bbc.com/news/world-us-canada-22837100">of Snowden himself</a> (fictionalized and dramatized somewhat), including his military training, his medical discharge and his work in the intelligence community. It provides a new vehicle for the layperson to learn about how the government uses modern communications technology. </p>
<p>The movie doesn’t take a nuanced view of why intelligence agencies do what they do. Nor does it provide sufficient context about the NSA’s practices in relation to those of agencies in other countries. Its portrayal of the technology involved (and of U.S. government efforts to <a href="https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning">apprehend and prosecute whistleblowers</a>) is, however, mostly accurate.</p>
<h2>Collection, but not inspection</h2>
<p>The film discusses three distinct aspects of the NSA’s efforts: data collection, analysis and the legal basis for surveillance. The movie accurately shows the agency’s systems for <a href="https://www.wired.com/2012/03/ff_nsadatacenter/">collecting bulk data</a> from across the country – through direct connections to the networks of major telephone and internet companies, <a href="http://time.com/103925/nsa-att/">including AT&T</a>, Verizon, <a href="https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data">Google, Microsoft and Facebook</a>. The suggestion, though, is that not only are data collected on all citizens, but – misleadingly – that all citizens are being investigated continuously.</p>
<p>Given the volume of communications, and the constantly changing threat landscape, intelligence agencies can’t respond to every lead they get in real time. Under <a href="https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data">its PRISM program</a>, the <a href="https://edwardsnowden.com/2013/06/07/prism-overview-slides/">NSA collects data on every citizen</a>, including emails, web-browsing histories, social media activity records, voice and video chat records, phone calls, text documents, images and videos. </p>
<p>Rather than monitor that immense stream as information flows through it, the agency archives it so as to be able to search it later, as new leads arise and investigations begin. The movie does not make clear this <a href="http://www.computerworld.com/article/2851624/nsa-privacy-chief-defends-agencys-surveillance.html">important distinction</a>
between having the ability to spy on every citizen and actually doing so.</p>
<h2>Simplifying data mining</h2>
<p>The film also depicts the NSA’s <a href="https://theintercept.com/2015/07/02/look-under-hood-xkeyscore/">XKeyScore</a> system, which can tap into all the data being collected. The information revealed by Snowden includes details on how XKeyScore can analyze the massive data trove, finding connections between people and matching voice patterns, among other abilities.</p>
<p>In the movie, scenes where analysts use XKeyScore suggest that just by typing very basic data about individuals (such as a name or email address) into an on-screen form, analysts can easily find exactly what they are looking for. This is a bit misleading. <a href="http:/dx.doi.org/10.1007/978-3-319-14142-8_13">Data mining</a> is a very challenging problem, especially in a set so large as to contain every communication in the U.S. Lots of innocent data surround a very small amount of what might be called useful intelligence. </p>
<p>Data mining can help narrow down a large batch of information to a more manageable amount, but human analysts – not a computer search screen – are the key to discerning actionable intelligence. <a href="http://www.slate.com/articles/news_and_politics/frame_game/2013/08/nsa_technology_oversight_and_audits_show_us_real_barriers_to_abuse.html">Rules and constraints</a> govern who has access to the information. What analysts actually do is also <a href="http://www.theverge.com/2013/7/31/4576822/nsa-responds-to-xkeyscore-leak-no-analyst-can-operate-freely">closely supervised</a>. A further limit on the abilities of technology and human analysts alike is that truly dangerous people are very careful to cover their tracks, using temporary email accounts and strong encryption on their transmissions.</p>
<h2>What’s in the law?</h2>
<p>The movie also strongly suggests that all of the NSA programs are illegal. While they are controversial, the legality of these programs is an <a href="http://www.reuters.com/article/us-usa-security-nsa-idUSKBN0NS1IN20150507">unclear, and even moving, target</a>. The 1978 <a href="https://fas.org/irp/agency/doj/fisa/">Foreign Intelligence Surveillance Act</a> provides legal procedures for physical and electronic surveillance and collection of communications between foreign powers and their agents in the U.S. </p>
<p>It also allows surveillance of American citizens and permanent residents suspected of espionage or terrorism. While the law was designed to collect data from specific individuals, the NSA has used its powers to justify mass data collection and analysis.</p>
<p>Some federal laws have been changed in the wake of Snowden’s revelations, in some cases <a href="http://www.intelligence.senate.gov/laws/fisa-amendments-act-2008">retroactively legalizing</a> practices that <a href="http://www.reuters.com/article/us-usa-security-nsa-idUSKBN0NS1IN20150507">might have been illegal</a>. The <a href="http://www.pbs.org/wgbh/frontline/article/how-the-nsa-spying-programs-have-changed-since-snowden/">NSA itself has also made changes</a> to some of its programs, due more to the public – and congressional – outcry against them than their legality. </p>
<p>As a result of Snowden’s disclosures, the NSA has stopped its bulk collection of phone records and limited surveillance of leaders of foreign allies. It has also offered <a href="http://www.politico.com/story/2015/12/chaffetz-nsa-spying-congress-217244">more transparency to Congress</a> on some of its efforts, and <a href="http://www.nytimes.com/2015/02/03/world/president-tweaks-the-rules-on-data-collection.html?_r=0">reduced the length of time it stores information on individuals</a>.</p>
<h2>The international context</h2>
<p>“Snowden” reveals details of the NSA’s cooperation with other intelligence agencies, and shows its <a href="http://www.nytimes.com/2013/12/21/world/nsa-dragnet-included-allies-aid-groups-and-business-elite.html">surveillance of international leaders</a> – including <a href="https://www.theguardian.com/media/2015/jul/02/wikileaks-us-spied-on-angela-merkels-ministers-too-says-german-newspaper">Germany’s Angela Merkel</a> and <a href="https://www.theguardian.com/world/2013/sep/24/brazil-president-un-speech-nsa-surveillance">Brazil’s Dilma Rousseff</a>. The reality is that <a href="http://www.cnn.com/2015/06/25/opinions/france-spy-claims/">every country is trying to gather intelligence</a> information to get leverage in international diplomacy, whether with friends or foes. </p>
<p>Snowden’s revelations will make it harder for U.S. intelligence agencies to conduct this sort of diplomatic surveillance, but does not similarly affect other countries’ practices. The world’s awareness of the level of spying conducted by the U.S. has also <a href="http://www.ibtimes.co.uk/spying-citizens-more-widespread-us-china-claims-presidential-candidate-gary-johnson-1566011">provided legitimacy</a> to citizen-monitoring efforts in less democratic countries such as <a href="https://www.salon.com/2013/10/26/12_other_governments_that_enjoy_spying_on_their_citizens_partner/">China and Russia</a>.</p>
<h2>Is there any real privacy?</h2>
<p>The impact of all this information has been enormous, both for the U.S. government and Snowden’s own personal life. Since releasing the information to the world, he has been <a href="http://www.smh.com.au/world/exclusive-edward-snowden-speaks-to-andrew-masterson-about-living-in-exile-20160301-gn76xs.html">holed up in Russia</a>, with only temporary permission to stay. His American <a href="http://thehill.com/blogs/blog-briefing-room/news/307253-report-snowdens-us-passport-revoked">passport has been revoked</a>. He cannot move around freely or communicate easily, for fear of U.S. covert agents <a href="https://www.washingtonpost.com/world/national-security/us-officials-scrambling-to-nab-snowden-hoped-he-would-take-a-wrong-step-he-didnt/2014/06/14/057a1ed2-f1ae-11e3-bf76-447a5df6411f_story.html">seeking to apprehend him</a> – or worse.</p>
<p>The movie doesn’t depict much of his Russian life, a decision that tends to reinforce the film’s message that there is no privacy anymore. If it showed more about <a href="http://www.popsci.com/edward-snowden-internet-is-broken">how Snowden communicates now</a>, it might provide useful insights into how Americans – and others around the world – could potentially <a href="https://theintercept.com/2015/11/12/edward-snowden-explains-how-to-reclaim-your-privacy/">use encrypted software to communicate</a> without being subject to government surveillance.</p>
<p>What it does show of secure communications is a good start, though. Not surprisingly, Snowden suggests using <a href="http://blogs.wsj.com/personal-technology/2014/03/10/privacy-snowden/">software that prevents tracking</a> of user activities such as browsing, shopping and communicating. He also recommends using <a href="https://www.torproject.org/">the Tor network</a>, which anonymizes data by sending it through a <a href="https://theconversation.com/securing-web-browsing-protecting-the-tor-network-56840">series of encrypted computer links</a>. He suggests whistle-blowers use <a href="https://securedrop.org/">tools like SecureDrop</a> to communicate with journalists anonymously. </p>
<p>“Snowden” the movie shows the long reach of the government in collecting intelligence on its citizens, and the fight of one disillusioned citizen against that unrestricted and unacknowledged governmental power. It highlights some of the complexities of the intelligence world, and the challenges of collecting information in the internet-dominated world. </p>
<p>Finally, it portrays the challenges in the personal life of a highly driven individual who followed his convictions in pursuit of social justice. Whether he is a patriot or a pariah depends on the lens you use – but he has certainly brought to the fore important discussions of privacy and cybersecurity for ordinary citizens, as well as free speech and government surveillance power.</p><img src="https://counter.theconversation.com/content/65310/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sanjay Goel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The new movie about the NSA leaker is a new way for the public to learn about government surveillance, communications technology and privacy. How well does it prepare the public for that discussion?Sanjay Goel, Professor of Information Technology Management, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.