The Interest-Divergence Dilemma Between the Tech Companies and the NSA*

The intensity of the semester has precluded me from writing much on the blog over the last few months. But as the term ends and the winter session begins, I hope to post more frequently here. This post marks the beginning of that aspiration.

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As philosopher Robin James has insightfully pointed out last week, “privacy is a red herring,” that is, it is not a relevant consideration in the debate over surveillance and government power. Rather, the real issue is the balance between “security and freedom,” as Obama and DNI Director James Clapper repeat ad nauseum the trite pro-surveillance mantra. Balance, according to James, can be considered either as “the average of two extremes” or it “could mean a dynamically-adjusting continuum (the kind of balancing done, for example, by an audio equalizer or an electrical resistor).” She argues that the discussion over balance is about the latter—how to continually fine-tune the precise resting place between security and freedom.

James’ point is well taken. One of yesterday’s major stories seems to confirm the success of neoliberalism in precisely this vein: Eight top tech companies published an open letter to the POTUS, in which they urge him to limit the state’s surveillance activities because the “balance has tipped.” It’s not clear what the balance is, though here is how they describe it in their letter:

The balance in many countries has tipped too far in favor of the state and away from the rights of the individual – rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change.

Prima facie, the tech companies are concerned about the encroachment upon individual freedoms, such as privacy.  Coincidentally, such “tipping” dovetails with profit losses for these companies, since as customers continue to hear about how these corporations have turned over supposedly private information to the government (sometimes making even more profit in the mix), they may challenge them by shutting down their Facebook, LinkedIn, and Yahoo accounts (which in turn induces further lost revenue from advertisers). They may engage in some other form of resistance (as encouraged through a neoliberal environment—of relocating their money (and potential corporate profits elsewhere), such as by shifting to non-profit tech organizations or open-source browsers, software, etc. whose primary mission is to protect user privacy. As such, the tech companies’ own “balance” of interests–located between complying with government requests and profiting by (falsely) claiming to protect their customers’ privacy for profit–also tips: in favor of the state.

Elsewhere in their (advertising) campaign to reform government surveillance, they suggest five “principles.” This is the first one:

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

So, the “balance” that the tech companies suggest is a balance between the government’s “need for data,” “users’ reasonably privacy interests” and “impact on trust in the Internet.”

Funny how the “principle” is rather an exercise in pragmatism: The tech companies don’t disagree that the state “needs” private information. They just insist that the state restrict its demands to that information that falls outside of “users’ reasonably privacy interest.” Presumably, “we” would all be okay if the NSA just collected the data of only those who might be terrorists and threatening American security interests.

Still, on this “principle,” I wonder how the US would distinguish between terrorists and reasonable privacy unless they collected everyone’s data. Doesn’t that bring us full circle back to the premise of all-encompassing surveillance?

I would add that, as the tech letter shows, while the language they resort to is the time-honored liberal discourse between security and freedom, in fact the balance they care about is the balance between corporate profits, government power, and customer complacence. It is not necessarily a problem to tip over from freedom to security, as long as government surveillance doesn’t begin to cause unrest among their customers such that they lose their profit machine.

Presumably “being sensible means not undermining “trust in the Internet,” which makes total sense, when your business profits depend on your customers’ trust in the Internet. So the appeal from the tech companies to the USG, in essence, is to continue their collaboration with the corporations to mine and acquire as much data as possible, but to be less obtrusive, less extreme, less confrontational about it. One way to do so, is to re-institute strict controls on which persons are the focus of data collection.

This is the quintessential neoliberal environment: corporations and the government converge to strip the focus away from rights so as to have better control over individuals. But at the moment that corporate profit is threatened, corporations no longer act in complete concert with the state, but rather each “institution” (the government and corporations) battle each other for control over consumers/citizens.

I think there’s a different (or another) red herring, to borrow from James: It is the red herring of “interests.” In other words, the discourse of interests distracts the “public” conversation from naming several realities (i.e. this is what is NOT printed as part of the official record, as in Reuters or the NYT; it doesn’t mean that many of us don’t see it).

1) It distracts us from being able to identify the struggle over the limits of surveillance as being about the limits of corporate power versus the state’s power and not, as its typically articulated, to protect persons/subjects/consumers/citizens.

2) This struggle is better understood as that between corporate interests for profit and (managing its customers’ behaviors for that purpose) v. government interests to acquire all information as a mode of securing control over subjects and companies.

In other words, the struggle between the tech companies and the government is over managing individual actions en masse, and by extension, its dialectical counterpart: consumers’/subjects’ resistance to being managed.

And this battle reflects the red herring of interests: The discourse of “interests” saturates the public conversation, such that privacy is no longer a relevant question. In fact, the prime concern that governs state actions is “its” own interests. This makes more sense if we revert to the assumption that the state’s interest is in its own survival, not that of its subjects/citizens. The corporations have their own interests in mind is obvious, but their interests are profits as extracted through the control/management of consumers’ actions (such as through Google’s and Facebook’s datacollection methods, which in turn are enhanced by targeting personalized ads at each user, which in turn extracts more information about user behavior.

The issue at stake is not about principles, or ethics, or privacy per se. Rather, the real concern—from the perspective of the tech companies is their profits being lost. That is the tipping point that shifts the balance away from profit in the service of overwhelming government desire to know everything that’s going on.  That interest was okay, so long as the public (customers) didn’t know (or didn’t focus so much on) the fact that their information was being handed over in volume by the tech companies. But when that knowledge threatens to drive away their customer base, then the “balance” qua fine-tuning has been lost.

I think James is right when she questions the relevance of privacy: she and I don’t disagree per se. But my emphasis on “interests” emerges by shifting the analytic:  The language of “interest” distracts us from the question of privacy. In part, this is because the language of privacy reflects an old liberal discourse of principles in relation to the limits of state power. But the discourse of neoliberalism concentrates on interests rather than rights or principles per se.

As such, the political framework changes from individual security to question of “what’s in my interest?” That’s why the common articulation of “disinterest” takes on so much resonance: But if I’m not doing anything wrong, then why should I care?”

The discourse of “interests” has begun to hegemonize the shape of public concerns. Because the language of interests is so commonplace, very few raised an eyebrow when the state appropriates the same language to explain its actions. For example, the US military announced this past weekend that it will no longer communicate information about Guantanamo detainees who are on hunger strike.

Officials have determined that it is no longer in their interest to publicly disclose the information, said Navy Cmdr. John Filostrat, a spokesman for the military’s Joint Task Force Guantanamo.

Filostrat has reported that is more important to worry about the welfare of GiTMO guards (sympathy for whom had to have been enhanced by 60 Minutes’ report inside Camp Delta, which consisted of prisoners yelling, and reports of feces being flung at the guards, among other atrocities), and that of the detainees rather than reporting these strikes.

As the Washington Post reports, of course, the reports on the detainees’ hunger strikes was itself the barometer of the prison. Thus, the absence of information shuts down journalists and human rights advocates, not to mention the public’s, access to this information. But the reason cites was that it was NO LONGER in the interest of the government.

Since when does the interest of the government become an express–and justifiable–factor in which information is publicly reported? It is hard to imagine the state making this the basis of its defense in an earlier era. Arguably, this has been the overwhelming concern for the decade since September 12, 2001, but government policies have always been articulated as having the “interests” of the public in mind: i.e., national security.

The convergence of the language (e.g., of interests) that marks corporate motives and state motives illuminates how the force of biopolitics (or ontopolitics, as I write elsewhere—namely the creation of moral monsters in contrast to good citizens) shifts from one group to another. This is not a question that Michel Foucault answers: how does the focus of biopolitics change from epoch to epoch? Why are some groups persecuted in one moment, but not the next, and how does the focus change? In this moment, as the case of surveillance suggests, it is because the state has taken up the language of interests, as the corporations did already, to manage/discipline their subjects. But, the next chess move is that the corporations have taken up the debate of “freedom/security” in order to battle consumers/subjects’ resistance to being managed or controlled, in order to ensure the corporations’ continued existence and profit-making capacity.


*With a nod to the title of the late Prof. Derrick Bell’s article, “Brown v. Board and the Interest-Convergence Dilemma.”

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Khalid Sheik Mohammed, Increased Privacy, and National Security: The Guantanamo Bay Spectacle

Update (below):

I wonder what goes through the minds of the prosecutors and Army Judges involved in the 9-11 staged spectacles surrounding various “terrorism-related” activities.  Yesterday, in Guantanamo Bay, at the show pre-trial for death-penalty proceedings for Khalid Sheik Mohammed and several others, Edward Ryan, the US Justice Department prosecutor asked for more restrictions on the release of “hundreds of thousands” documents having to do with the September 11 attacks. As the LA Times reported, Ryan

asked the military commission judge to bar the public release of much of that material to protect secret law enforcement investigative techniques and information about clandestine terrorist activities.

I reread those words in light of the numerous actions of the part of the US, and wonder if anyone of the participating parties—the US Army Judge who oversees the trial, or the prosecutors understand that they are dispelling any doubt about whether they are running a kangaroo court.  Apparently, Ed Ryan and his colleagues are under the impression that we haven’t heard about their “secret” law enforcement techniques.

Edward Ryan continues with his argument:

“That material, he said, includes ‘911 calls from individuals trapped inside the burning towers to people who may have rented rooms or mail boxes to Mohamed Atta or one of the other hijackers.” Atta, one of the engineers of the hijackings, piloted one of the passenger jets into the World Trade Center.”

The United States government has records of calls made by people from inside the WTC to Mohammed Atta or other hijackers? The Department of Justice has other–clear, primary, damning information from secret law enforcement techniques? And it’s taken 12 years to bring Khalid Sheikh Mohammed to trial?

Let’s just keep going. This is better than reading Kafka.  Ryan points to the fact that similar restrictions were imposed Timothy McVeigh and Zacarious Moussaui. But McVeigh was charged, tried, and sentenced to death by 1997, within 2 years his attempts to bomb the Oklahoma City building.  Moussaui was found guilty in 2006—less than 5 years after September 11—of planning attacks in concert with the group of 19.

“Other materials, Ryan said, deal with “military operations that are sensitive” and the “names of suspected terrorists and the strategies they used to communicate with one another, their operational nicknames and code words.”

Apparently, the US Department of Justice is concerned that some part of the gazillions of people who populate the 7 continents might learn about the counterterrorism techniques deployed by FBI, CIA, the US Army, Military, and Navy in the 12 years since 9-11. I’m here to tell you about some of the secret—effective–law enforcement techniques that the US has used over the last decade. With this, I join the ranks of Bradley Manning and Julian Assange in releasing top-secret information:

–the decades long renditions-program maintained by the CIA, which scooped up Syrian-Canadian engineers like Maher Arar and sent him back to Syria to be tortured and put in solitary confinement for 10 months.

-the entrapment and targeting of hundreds of Muslims in the United States.

-the federal (and state) governments’ relentless zeal in passing successive laws and policies that expand the scope of policing powers (NDAA, H.R. 347, SB1070, S.Comm, renewal of the Military Commissions Act, FISA).

-The highly touted extra-legal assassinations of Osama Bin Ladin (marveled, boasted about by POTUS himself, and rehashed in excruciating detail on 60 Minutes, a book by one of the Navy Seals involved in the killing (somehow not banned as giving “highly classified information”), and gleefully reviewed from multiple angles in Vanity Fair, including the Leon Panetta’s and POTUS’s own deep thoughts on the matter of extra-legal assassination, and multiple rags professing to be part of the critical watchdogs called the media.

-the much announced extra-legal assassination of “Al-Qaeda’s #2” Anwar Al-Aulaqi, a US citizen and

-extra-legal assassination of his U.S. citizen, 16 year old son Abdulrahman Al-Aulaqi.

–the subsequent drone attacks that have supposedly killed multiple Al-Qaeda terrorists in Yemen, Pakistan, and Afghanistan.

–the killings of multiple other potential #2’s in line to Osama Bin Ladin.

I wonder if Ed Ryan finds the repeated bombing and drone attacks and complete abrogation of human rights on the part of the US—do those endanger national security? Does the NYU/Stanford Drone Report on the murders of more than 2000 civilians (and countless “militants”—defined as those who come to take care of their injured and dead in the immediate aftermath of attacks by drones)—endanger national security? How about the Columbia Report, “Civilian Impact of Drones: Unexamined Costs, Unanswered Questions,” which points to the broad range of executive and legal measures that enable any future president to kill broadly, vastly, and with ease? Are these also endangering national security?

Back to Ryan’s argument before U.S. Army Judge James L. Pohl:

“Ryan said that once the materials are handed over to the defense in the discovery phase of the case, the government does not want many of them made public in court filings or testimony, or released to the public in other ways.”

‘Discovery,” he said, “is not a public process. It’s not a source of open public access.’”

I can accept that. It’s not a public process. Got it. It needs to be secret from the “public.” Apparently, the “public” include the defendants and their lawyers, too.

“Defense attorneys asked for some modifications, especially the government’s request that the five defendants not be allowed to see any of the sensitive or classified material.” (my emphasis)

Apparently release of documents would reveal the incredible plethora of information about terrorists and their activities and contacts. It would prove irrefutably that KSM and Walid Atta and others are terrorists who want to hurt America. That in turn would endanger national security?

I wonder how the abrogation of the due process and violation of the human rights of 800 prisoners in GTMO over the course of the decade enhance national security. I wonder how national security concerns were protected by holding a number of children among them, like Omar Khadr, and clear innocents like Adnan Latif, whose repeated exoneration was ignored, until finally, he killed himself. Especially in light of the fact that the families of these prisoners and their communities are probably pretty pissed off if they weren’t before.

Clearly, national security isn’t the issue here. The drive to increase “privacy” is correspondingly a drive to increased immunity from the charge of lawlessness in the name of law. As Yemeni –based lawyer Haykal Bafana tweeted to me this morning:

What is at issue is US ability to plausibly deny that that they have initiated, perpetrated, and engaged in the most focused, expansive, and the unqualified campaign to target an international and domestic population of Muslims—merely because they could. And where they couldn’t engage in those processes, the state—under the aegis of GW Bush and the Republicans—with the unabashed help of Democrats from 2001 until today—has passed laws that would allow for the unapologetic harassment, torture, and persecution of Muslims.  There isn’t enough time in all of our years put together to lay out every instance of persecution on this site, although many lawyers, activists, human rights organizations, and pundits are on the case.  Again, Bafana states the profound truth:

Despite the still persistent charges from outraged domestic and international dissenters, US Department of Justice and US Army Judges appear to think that their actions can withstand scrutiny from international observers. As bizarre, they appear to believe that their actions are not already transparent. One doesn’t need access to classified materials to understand that the spectacle in Guantanamo is a parody of justice.

If we turn our attention to the show-trial at Fort Hood of former US Army Psychiatrist Malid Nidal Hassan, the same impression arises: Nidal Hassan’s trial for the killing of multiple people on Fort Hood Army Base has been repeatedly delayed as the trial judge Col. Gregory Gross has ordered that Nidal Hasan must shave his beard because it shows disrespect for the Army proceedings. Nidal Hasan—arguing that he is close to death and that it would be a sin to shave at this point, has refused to shave. Gross’ response has been repeatedly to fine and place Nidal Hasan in contempt multiple times. He rejects Nidal Hasan’s explanation because the sign “of his religious faith hasn’t been sincere enough.”

Which part of this ridiculous battle between a US Army judge and a suspect suggests that this engagement is anything other than act of pure unadultered, unaccountable, power—an act designed to humiliate and squelch Nidal Hasan as part of a public spectacle designed to send a message to millions of religious Muslism? Since when are American non-Muslim Army judges able to distinguish sincere religious belief from falsehoods? What exactly in their careers has equipped them to make this distinguished judgment?

Does the US Army or the Department of Justice—or even the present Administration wonder about how their actions are received by the international arena and international press?  Do they think that news of their rulings will somehow increase the trust of international observers as the US makes claims about caring about human rights violations in…well…anywhere else in the world? Except for Palestine of course. No human rights violations there.

Do they wonder about how US citizens fare when traveling abroad in the light of all of these “measures” to protect national security? Unimpeded acts of torture, lawlessness, incarceration, confinement, and kangaroo trials—in case it isn’t obvious—can only increase the national insecurity at home and threaten Americans travel abroad—even and especially for those who wish only to live in peace with Muslims around the world.
Update:

Haykal Bafana reminds me that his second tweet is in fact a quote from Shakespeare. Precisely, it’s from Act III, Scene I of the History of King John (1596).