In June 2013, whistleblower Edward Snowden in collaboration with journalist Glenn Greenwald and filmmaker Laura Poitras published leaked NSA documents, which revealed large-scale programs (PRISM, Tempora, etc.) that monitor Internet activity worldwide by American intelligence. Since then, further documents have been published. Snowden had the documents handed over to the British Guardian newspaper. In German-speaking countries, the weekly Der Spiegel and the Spiegel Online site (SPON) have published numerous articles on the NSA documents. In addition to new information about the pervasive monitoring of internet traffic, further facts have been published about espionage activities. In October 2013, it was announced that the mobile phone of German Chancellor Angela Merkel and other German politicians were wiretapped. This intensified the worldwide debate about the role of state intelligence agencies.
Rituals of investigative journalism
A central role in the publication of the documents in Germany has been played by Jacob Appelbaum, a TOR advocate, security researcher and developer, who published articles with other journalists in Der Spiegel. He was honored for his research on the wiretapped phone of Chancellor Merkel with the Henri Nannen price. Appelbaum, who is a US Citizen, now lives in Berlin. In December 2013, he held a talk, ‘To Protect and Infect Pt. 2’, at the annual conference of the Chaos Computer Club, the Chaos Communication Congress 2013 (30c3) in Hamburg. Concurrent with his 30c3 speech, new NSA documents were posted on Spiegel Online (1).
It is very likely that the material had been known for a long time. Why did they choose this date in December for publication? One gets the impression that the journalists have a publication strategy specifically for Snowden’s leaked NSA documents: instead of publishing everything in one fell swoop, smaller batches of documents have been released periodically. The presentation by Appelbaum at 30c3 in front of a well-meaning audience looked like a speech for a political party. There was a clear message delivered: the NSA is evil. Appelbaum also stated that with surveillance a Continuous Wave Radar Unit could have caused Hugo Chavez’s cancer. Facts in support of this claim? None. Here, journalism is not objective, but instead pursues an agenda like an NGO or a political party: it delivers orchestrated productions performed in front of a politically opportune audience.
Furthermore, the published materials are rather thin. Can the NSA documents be verified? For an individual it is nearly impossible to independently verify the NSA documents and how they are classified. One batch of documents describes various monitoring technologies, and an internal order from a catalog of technical devices from the NSA. The catalog itself dates from 2008 and contains prices and technical details for various monitoring devices. This gives the impression that the NSA is omnipotent, and has all the fantastic technological possibilities that script kiddies have ever dreamed of. It’s doubtful that this is true.
Let’s take the monitoring program for Apple mobile devices with iOS, which operates under the name ‘Dropout Jeep’ described in the NSA catalog. Even the NSA internal paper states that the software must be installed via a ‘close access method’ on the targeted device, and the NSA is meanwhile working on ‘remote installation capabilities’ for the future. It cannot be verified if this ever happened. One could site this and claim that all iOS devices could be possibly compromised. Or one could see the NSA paper as a marketing strategy: no one in the NSA is going to write that the surveillance software is not as powerful as expected. We have internal papers of questionable quality that describe a phenomenon, but the public has not seen proof of this yet. Whatever you decide – it is all speculation. So far no one has seen a supervised iPhone with ‘Dropout Jeep’ in the wild, and so it remains conjecture even in the talks of IT security experts (2).
Only one principle remains – the belief that secret security services could have access to unlimited technical means and could be capable of a conspiracy against parliamentary politics. These are the partly flagrant conclusions of Constanze Kurz (journalist and CCC spokeswoman) written in a column for the Frankfurter Allgemeine Zeitung (FAZ) newspaper (3). She describes wiretapping scandals in various European countries. In France, former president Nicolas Sarkozy wasn’t tapped by a secret service, but was instead monitored for the daily political business of mudslinging. So this doesn’t prove that secret services were responsible for the surveillance affairs in Ukraine, Turkey and France (all publicized in March 2014).
And even if the allegations were true: is the pure act of listening to private conversations the main issue? All the spying scandals were published by the mass media based on recorded conversations. So probably the real issue here is that media companies (and the public) maintain an extremely strange relationship with political scandal in the 21st century. Data can be used to expose anyone. This only requires a general public that is willing to form a leering mob in front of the digital pillory. Perhaps an enlightened attitude here would not be the cynical ‘I’ve always suspected what politicians think in private’, but a friendly-to-disinterested mindset formed by an awareness of the published facts. Even non-politicians say stupid things from time to time; they also cheat on their spouses and evade taxes. But unfortunately this is rarely discussed in the public reactions. It is the public’s hunger for sensationalism that plays a crucial role here. It’s a matter of supply and demand.
Critics of secret services systematically overestimate the power and effectiveness of these agencies. In their mindset, a conspiracy of a few (politicians, business, intelligence agencies) is suspected to be against the interests of the people. On the other hand, the results for the faithful always make sense. One recognizes this type of mindset that always sees a group as a conspiracy that seeks to advance its interests and goals. If you listen to Frank Rieger of the CCC, everything fits together for him into a coherent picture. For example, he stated in his presentation at the re:publica conference that Google invented the self-propelled car just so that people will spend more time on the internet (4).
A movement goes sour
While in mid-2013 there was still a certain momentum to the revelations, interest has declined slowly and other issues have become more important. So the anti-surveillance activists were left alone with themselves. Those who are particularly loud aren’t necessarily right, and the principle of a ‘Silent Majority’ is making itself felt. In public, positions arguing for surveillance are almost completely missing. The discourse is self-referential when all journalists basically publish the same positions. This is delivered with moralizing criticism of the internet, and the usual cultural and technical pessimism seen for example in an ongoing debate about internet technology in FAZ.
Sascha Lobo, a journalist for Spiegel Online with a regular column on network topics, held a talk (that came close to nerd rage) that got a lot of attention at the re:publica conference in April 2014. He spoke about the ‘Spähradikale’ (surveillance extremists) who exploit the internet. He also labeled them ‘anti-democratic’. It remains rather vague who he was referring to exactly. This is probably best represented by the figure of the activist: one who sees himself as a true democrat and loyal to the German constitution, while the other side is betraying democracy.
The shrill sound that Lobo struck was initially surprising. Previously, he was more of the feel-good bear. In his book Wir nennen es Arbeit (We Call It Work), he wrote that the internet creates new job opportunities and social freedoms for digital work. That was in 2006. The development here is as rudimentary as the decline of the 1968 movement. Naïve, well-intentioned activism strikes once against an uncomfortable reality. The protagonists slowly realize that the masses are not following them, but they try to forget about this truth. I think this explains some of the frustration and anger that manifested itself in Lobo’s speech. It follows a systematic foreclosure against the idea that you yourself belong to a small minority, and that in reality no one cares about this important issue that affects everyone. The discourse is self-referential because the proponents of privacy believe in their own importance. But it has no impact on the real political system, which can be seen when examining German election results. This is because there are many important issues besides the ‘protection of privacy’ and surveillance.
This painful realisation had to be made by the ‘Piratenpartei’ (Pirate Party), which focuses on state surveillance and ‘Netzpolitik’ (Internet policy). In 2011, the party had 8.9% of the vote in the Berlin Senate, and in May 2012, 8.2% in the Landtag of Schleswig-Holstein. The party should have benefited from this momentum of regional results and the revelations of the Snowden affair. It did not. Since 2013, election results decreased, and in the general election in September 2013 during the heyday of the Snowden revelations, the party got only 2.2% and failed to meet the 5% barrier (5). This phenomenon is known as the ‘Privacy Paradox’ (6): Participants in surveys voice opinions in favor of data privacy protection, but this has no effect on their actions in real life during voting or when making consumer choices. Privacy is a moral issue like environmental protection with corresponding socially desirable response behaviour. You think that the reduction of carbon dioxide emissions is good, but you wouldn’t give up flying on a plane to take a holiday trip.
However, this general lack of interest could also be explained by people’s rational decisions in weighing different considerations. Furthermore, no one likes the feeling of being assigned to be a spectator at the Snowden revelations just to scream ‘I’m outraged!’ when the stage directions say so. Similarly, the interest in the usual scheme of ‘journalism uncovers a scandal – public is outraged’ has vanished very quickly.
Individual rights and the interests of the nation
The movement against surveillance still has difficulty finding a position in relation to the state. People want regulations according to existing laws and institutions. Yet, this doesn’t work for the NSA surveillance. The committee in the German Bundestag will not put a handle on US Intelligence agencies. US foreign intelligence is doing exactly what they are meant to do: collect information on foreign countries, their political elite and their citizens. This is more or less a trivial fact between states and has always been daily business. Exactly the same desire exists in Germany; the Bundesnachrichtendienst (German Intelligence) would like to eavesdrop on Facebook – but supposedly only on foreign users – in real time (7).
The spying capabilities of state agencies have increased with the possibilities of Big Data. Nonetheless, on a personal level it is difficult to find arguments that demonstrate what specific disadvantages incur to the individual from state surveillance. All we have are examples of individuals prohibited from entering the United States. There is no proof that this is connected to the data collection of the NSA. However, it was in the case of Maritta Strasser and Ilija Trojanov, who are publishing articles, and you can get this information effortlessly (8). You don’t need a secret service, you can simply do a Google search. Getting rejected from entering the USA is not a threat for most Germans; they can just travel to another country. This possibility also arises out of a privileged position, that is, having a passport to travel easily to most countries in the world. For most people it is not the case that they are systematically – or even in a single event – rejected from entering the USA. It is not ‘you can enter unless the state decides otherwise’, but the opposite.
To put it pointedly: As a German citizen there is not much to fear from the NSA in real life. But this is different when we look at the German state. It has specific power over me. This argument by Michael Seemann is quite accurate (9).
Paradoxes of privacy
At this point we come to one of the main problems of data protection. It is a right granted by the state to protect the individual. So I argue for tougher laws that protect my civil liberties and individual rights better. Data privacy is also used to protect the interests of the state.
Fantasies of German omnipotence are being expressed openly. ‘The privacy advocate said his responsibility was indeed limited to Schleswig-Holstein, however, it would make sense that it is applicable to the whole of Germany and beyond for European regulation of online privacy’ (10). It must be an insult to those fantasies that German authorities and courts have no direct control over web servers and services from the USA.
Privacy is only morally ‘good’ when it pretends to be an underdog and fights against big companies. Yet, that can also backfire as the data protection officer of Schleswig-Holstein had to learn. He wrote to local companies and threatened that they had to refrain from Facebook integration on their websites and operation of fan pages. At that point, public opinion could have swung very easily because suddenly it was no longer a ‘David and Goliath’ struggle, but a story of a crazed authority figure hurting the regional economy. In this case there were not many sympathy points. A court overturned the decision in October 2013 (11). This is what the freedom of the state privacy looks like – the use of Facebook is threatened with a warning and a lawyer.
On a supranational level, the strategic position of Germany in the world economy is also represented. There is a subliminal fear of being left behind in the competition of nation states. Data protection is used as an instrument of economic policy to enforce German interests. This happens today mostly on the level of the European Union. The relevant data protection regulations will be negotiated in Brussels, and it is here that the EU fights against US companies with militant appeals against Microsoft and Google. Even the FDP party shows itself here to be less market-liberal, and instead demands a strong state order and hegemonic interests with the crowbar of industrial policy. Christian Lindner: ‘Once, the response to the dominance of Boeing was Airbus’ (12). Current Minister of Economic Affairs, Sigmar Gabriel (SPD, Social Democrats), went even further and spoke in support of anti-trust laws against Google (13).
The scramble for data privacy protection is primarily a dispute over the proper relationship between the basic value of freedom versus the need for security. It is the question of a distribution of rights: whether the state should provide more freedom or more safety.
A wondrous fact about this debate is that the historical context is eliminated completely. It is as if state intelligence services arose only after the internet. It is as if there had not been a confrontation between the East and the West in the recent past with the heavy use of surveillance. Political scientists are hardly heard from in this recent debate, rather it is computer scientists, politicians, journalists and writers who dominate. Mostly the technicians are the ones who have supremacy and explain surveillance primarily based on the technology used. There is often a naïve belief in the ‘good’ state: democracies shouldn’t wiretap, and people are shocked when they find out this happens nonetheless. There are basically no positions in the discourse justifying the collaboration between German and US intelligence. But this is exactly what is happening under the current coalition and all previous governments. All critique seems to be a preachy accusation about this, but do not acknowledge the fact that there seems to be a) state reasons behind the praxis and b) it is backed currently by the majority of German voters who elected the current coalition of the Conservative party and the Social Democrats.
The whole discourse is asynchronous, since positions calling for more security are hardly represented. Those positions appear only as a mockery or a rhetorical device like the much-quoted phrase ‘I have nothing to hide’. This is an invented position of data protection advocates. It builds a silhouette target or a virtual opponent who can be easily fired upon. In magazines and blogs you really need to search with a magnifying glass for positions in favor of more surveillance (14).
Here lies a main problem: the discourse of data privacy protection is self-referential. The NSA can hardly argue publicly on a podium. The representatives of German Data fear keeping to themselves, and are possibly supported by key witnesses such as Evgeny Morozov and Jaron Lanier. I get the impression that most positions here are ‘how things should be’ but not ‘how things really are and why’.
(3) http://www.faz.net/aktuell/feuilleton/aus-dem-maschinenraum/aus-dem- maschinenraum-im-zeitalter-des-abhoerens-lebt-die-politik-gefaehrlich- 12838825.html
(6) http://www.zeit.de/digital/datenschutz/2013-10/privatsphaere-ueber- wachung-nsa-seemann
(8) https://www.blaetter.de/archiv/jahrgaenge/2014/juni/ein-jahr-snowden-die- sabotierte-aufklaerung
(9) http://www.zeit.de/digital/datenschutz/2013-10/privatsphaere-ueber- wachung-nsa-seemann/komplettansicht
(10) http://www.welt.de/wirtschaft/webwelt/article13673449/Schleswig-Holstein- wird-zur-Datenschutz-Insel.html
(11) http://www.zeit.de/digital/datenschutz/2013-10/facebook-fanseite-unter- ehmen-schleswig-holstein
(12) http://www.christian-lindner.de/Eine-Machtfrage-keine- Sachfrage/5799c21011i1p59/index.html
(13) http://www.faz.net/aktuell/feuilleton/debatten/die-digital-debatte/sigmar- gabriel-konsequenzen-der-google-debatte-12941865.html
(14) Eine der wenigen Ausnahmen ist dieser Artikel: http://www.faz.net/ak- tuell/politik/ausland/amerika/nsa-und-cia-warum-wir-die-deutschen-ausspi- onieren-muessen-13039857.html. An English version of this article can be found at: http://www.thedailybeast.com/articles/2014/07/09/why-we-need- to-spy-on-the-germans.html