After Snowden, Rethinking the Impact of Surveillance

Référence

BAUMAN, Zygmunt, BIGO, Didier, ESTEVES, Paulo, GUILD, Elspeth, JABRI, Vivienne, LYON, David et WALKER, R. B. J., 2014. After Snowden: Rethinking the Impact of Surveillance. In : International Political Sociology. 1 juin 2014. Vol. 8, n° 2, p. 121‑144. DOI 10.1111/ips.12048. abstract

Catégorisation

• Thèmes: Général
• Acteurs: NSA, ONU
• Discipline: Théorie politique, Relations internationales

Résumé

L'article défend la thèse que la transnationalisation de la surveillance des communication appelle à une réexamen des pratiques et des relations de pouvoir dans l'espace mondial, et plus généralement des "surveillance studies" et des "critical security studies". Il propose pour ce faire plusieurs pistes à prendre comme autant d'objets d'étude :

• la mise en réseau des agences de renseignement et le partages des données qui doit conduire à remettre en cause les analyses traditionnelles des relations internationales.
• l'impact des techniques et des réseaux numériques sur la reconfiguration des relations de pouvoir entre acteurs publics et privés et la redistribution de leurs avantages stratégiques à l'intérieur du champ de la sécurité.
• les stratégies de résistance diplomatiques, techniques, juridique mise en oeuvre par des acteurs multiples, et notamment les utilisateurs d'Internet.
• au plan de la théorie politique, la manière dont ces reconfigurations dans le champ de la surveillance affectent la légitimité et donc le capital symbolique des autorités publiques qui agissent au nom du principe de nécessité et de la sécurité d'une manière qui contrevient à l'État de droit.

Divers

Notes de lecture

The article poses several questions :

• the conceptual disconnect between, on the one hand, dispositions and aspirations shaped by the idea of an interstate world in which each state has a clear vision of its own national security and, on the other, the surveillance practices undertaken by a network of different intelligence services, sharing some information while also acting against their fellow partners and thereby destabilizing traditional understandings of alliances and state behavior.
• the use of these technologies and the materiality of Internet cables as sources of information whose specific geography gives political advantages to some countries and may reconfigure power politics at the world scale.
• the strategies of multiple actors to resist these policies by diplomatic and legal strategies, as well as the adjustment of the behavior of Internet users in their everyday practices: whether, for example, they will continue to participate in their own surveillance through self-exposure or develop new forms of subjectivity that is more reflexive about the consequences of their own actions.
• the source and legitimacy of the authorities claiming to act in the name of political necessity and security.

These questions leads to a need to rethink the canons of “surveillance studies” and “critical security studies”.

A Mobius Strip of National Security and Transnational Surveillance

• Distribution of suspicion: Three-hops surveillance scheme and the speculatiuve faith of agencies in systems designed to “read” big data. Surveillance spreads through networks of suspicion but is not massive (as in "everybody"). The bulk collection of data and the visualization through networks makes it impossible to be certain about the difference between nationals and foreigners. Legality requirements threaten the functioning of the system and so they presume that the law must adjust, not the system. Agencies bypass limitations on foreign intelligence by using “a citizen privacy shopping” to exchange surveillance of their own citizen with another service (what is national and what is foreign becomes mostly irrelevant for transnationally organized operations).
• Digitization fo the reason of state: Big data gathered at a transnational scale, blurring the lines of what is national as well as the boundaries between law enforcement and intelligence. These trends encourage the move from the judicial framework of criminal policing to preventive, preemptive and predictive approaches and from a high degree of certainty about a small amount of data to a high degree of uncertainty about a large amount of data. The hybridization of private and public actors destabilizes socialization through national state interests and secrecy, opening possibilities for major leaks by persons with different values. Transnationalization, digitization, and privatization transform the reason of state, leadings to the formation of digital networks of increasingly autonomous professional guilds attached to the national security apparatus, and which e directly challenge the political authority.
• Guilds of professionals of sensitive information: The transnational network of intelligence sharing is full of asymmetry and power relations that structure the field. It is more accurate to speak of an Anglo-American guild of professionals (Five-Eyes) extended to other Western intelligence services than to analyze the network as a US-European collaboration on an equal footing, or even a transatlantic collaboration correlated with NATO.
• Multiple Sites of Resistance: Snowden’s revelations have created a snowball effect of distrust about the positive effects of exchanging data with the NSA and have pushed private providers such as the French company, Orange, to verify its technical infrastructures. Hundreds of judicial claims, coming from very different actors with very different motives, have been launched and it will be impossible to block them without profound reform.

Games That States Play Along the Mobius Strip

• Reasserting sovereign lines: Brazilian political reaction. The most noticeable outcome was the inclusion of privacy rights in the agenda of the UN Human Rights Committee and the introduction of a Resolution at the UN General Assembly, with the support of the German government. Competing visions: data subjects (in networks of suspicion) v. cosmopolitan subject of universal rights.
• Digital geopolitics: For Brazil and the EU it was also about reasserting sovereignty (with debates on local hosting, EU data cloud, new transatlantic cable, etc.), leading to a game of digitized geopolitics. States are thickening their digital borders. While the first move is based on claims to universal rights, the strategic game is based on claims to state sovereignty, or in this case cybersovereignty. Within these strategic games, very often, the reference to universal rights fades and ends up being replaced by a strategic reasoning embedded in uncertainty and fear (national interest, national or state security, espionage, and war come to the fore). State actors play geopolitics within the Mobius strip instead of evading it.

Human Rights and Privacy in the Age of Surveillance: The Power of International Law?

• Right to Respect Privacy and Right of Data Protection: States’ duty to protect data arises from the person’s right to respect for his or her privacy. Where states interfere with people’s privacy, they must fulfill strict rules to justify that interference. Further, states are under a duty to ensure that private sector actors do not breach a person’s privacy. Thus, states are under an obligation to regulate the collection and use of personal data by the private sector. This gives rise to the obligation of data protection.
• The US Position Regarding International Human Rights Law and the Brazilian German Initiative: The UNAG resolution adopted in december 2013 ties the right to privacy to the right to freedom of expression—if people are subject to mass surveillance they are no longer able to express themselves freely. It calls upon states to respect the right to privacy and prevent violations, to review their procedures, practices, and legislation regarding surveillance of communications and the interception and collection of personal data, including mass surveillance, interception, and collection, with a view to upholding the right to privacy.

Intelligence, Democracy, Sovereignty: Which Demos for What Security?

• Our political world is neither national nor international: These networks are variously international and transnational, with cartographies that look more like electrical circuits than territorial properties.
• Blurred distinction between the state and civil society: The new procedures for intelligence operations, data-gathering, mobilizing suspicions, and identifying potential threats, especially in ways that rely more on computer manipulations of evidence that may or may not have empirical credibility, and which rely on statistical probabilities within abstracted populations to identify particular individuals, pose dangers to established liberties and rights that are analogous to regimes we prefer to imagine as swept away in revolutions, democratizations, modernizations.
• Tension between liberty and security: Democratic traditions have been forced to work out various accommodations with the demands of security as a limit condition, usually by insisting on close scrutiny of decisions, divisions of institutional powers, and an insistence on the legal conditions under which laws might be suspended. It is a negotiation betweren popular soverignty and state sovereignty. The liberty/security balance rhethotrics opens the way for de facto claims that the responsibilities of sovereignty rest with those charged with our security and that the space for negotiation open to those supposedly being secured must be reduced.
• Secrecy: The cult of secrecy takes us back to far too many historical cases in which claims were made that “the people” cannot afford to know what’s good for them while their sovereign needs to know as much as they can about the people whose sovereignty they claim to express.

Subjectivity and the Surveillance of Cyberspace

• The concept of suspect is now thoroughly transformed: We are no longer able to confine it to its juridical sense, which refers to criminality, nor are we able to confine its meaning to its socio-political iteration relating to enmity or potential subversion.
• Global sphere of public and private communications as space for freedom: Instantiation of a global public sphere (Castells 2008), the communicative practices within which could variously hold authority to account, mobilize within and across territorial boundaries, and in so doing come to constitute an altogether other space, a cosmopolitan interconnected world, where the cosmopolitan is at once of difference and homogeneity. it is this precise blurring of boundaries, this limitless terrain of the possible—where difference can inhabit the familiar, the homogeneous—that calls forth, that challenges, a security apparatus which, as Foucault (2007) tells us, does not function along the model of repression, but rather one of production, of allowance and license.
• Informatics is now the discipline of choice for liberal power. From computer storage disks to undersea cables, these are the technological, engineering elements of a machinery that services the freedom to communicate and the capacity to monitor and control.
• Bull access or mass surveillance: the focus is on the “surveillance” of the “mass,” where mass can be understood to mean not the biopo-

litical terrain of population, but much more radically the “multitude” of singular and networked communications subject to surveillance, even though the “data” as such might appear digitally in a networked profile revealed by “metadata” or even “content.” The subject of surveillance is hence not simply population, though the “profile” can be said to be carrier of particular populations, but above all the individual subject of communication.

Living with Surveillance: Resignation, Perplexity and Resistance

• Support for Snowden depends on where you are located (lesser in the US).
• Resistance and counter-measures are hard to measure because events are so new.
• But resignation and acceptance are important because of several factors:
  • familiarity: context of liquid, pervasive surveillance to which we actively participate by giving away our private information.
  • fear: fear factor makes mass surveillance acceptable.
  • fun and social and horizontal surveillance also foster intensified surveillance.
• Under-reaction to Snowden revelations: "Media people sorely miscalculated if they had hoped for rocketing TV News ratings and newspaper sales. However earnestly they tried, leaking Snowden’s exposures caused slight, hardly felt tremors, where earthquakes were expected."

Citations

• About the concepts of "digital sovereignty" and other digitized geopolitics: "The digitized geopolitics assumes that cyberspace is a battlefield and that states must build up their own cyber capabilities in order to defend themselves and/or must engage in international coalitions in order to face the challenges posed by mass. The paradoxical effect of this particular game seems to be that states’ resistance against mass surveillance ultimately reinforces the digitized reason of state regime. Reproducing the opposition between security and freedom, while playing the digitized geopolitics game, states might end up subsuming citizenship and rights to the positional logic of a data subject. While fighting against mass surveillance, states may create the appropriate conditions to conduct mass surveillance themselves." (p. 131)
• On the notion of mass surveillance: "If we insist on the term “mass surveillance,” the focus is on the “surveillance” of the “mass,” where mass can be understood to mean not the biopolitical terrain of population, but much more radically the “multitude” of singular and networked communications subject to surveillance, even though the “data” as such might appear digitally in a networked profile revealed by “metadata” or even “content.” The subject of surveillance is hence not simply population, though the “profile” can be said to be carrier of particular populations, but above all the individual subject of communication. It is in this sense that the space of intimacy is, we now know, absolutely penetrated by these agencies, so that a profile is constructed from the digital trace left by the communicating, interactive subject." (p. 140)