On December 5, President Obama assured a packed audience at American University that the National Security Agency is "not interested in reading your emails" and "they're not interested in reading your text messages." He then admitted that Edward Snowden's disclosures had revealed areas "of legitimate" concern, but that the reaction to the disclosures has been "highly sensationalized" and "painted in a way that is not accurate."
So sensationalized that some of the country's best writers are already refusing to research certain topics? That journalists are afraid to communicate with their sources online? And that nearly a quarter of the professional writers surveyed in PEN's report Chilling Effects are already choosing to self-censor? Every day, we are losing stories that could have been told and narratives that might have been shared because of our government's unbridled surveillance powers. Whether or not NSA employees themselves are "interested" in reading text messages does not change the fact that they can, and the checks and balances that should in principle limit their ability to do so have failed to work.
On this point, President Obama spoke very carefully, observing that "the courts and congress" have "the capacity" to prevent abuses of power. This is very different from saying that they are actively doing so. Presumably, the reforms that President Obama will propose via his Review Group on Intelligence and Communications Technologies will require engaging these branches of government, because the principles of "self-restraint" that he hopes to inspire may not be enough.
Equally troubling is the practice by the FBI and domestic agencies to rely on the Electronic Communications Privacy Act to justify examining communications stored in the cloud. This is also bad for writers. If you're like me, and you sometimes back up your files on your email service, this means that the government can get a peak at the first draft of your novel without a warrant. (One way to stop the authorities from prying into these documents might be to upload Vogon poetry, considered the third worst in the universe by writer Douglas Adams, but since we have not yet made contact with the Vogons, this is not an elegant solution.)
Perhaps the FBI should read Vogon poetry?
Thankfully, many Americans are not fooled. On December 6, a coalition of civil society organizations, including PEN American Center, pressed for ECPA reform to require government agencies such as the FBI to seek a warrant to access information in the cloud and not just a subpoena. (You can too -- sign the petition here.) And this week, a coalition of corporations, including Google, Yahoo, and Twitter, endorsed the Reform Government Surveillance principles, a thoughtful and clearly-worded statement demanding transparency and accountability and an end to dragnet government surveillance. The Reform principles build upon thoughtful efforts that have come before and, of course, it's written to protect corporate interests -- check out the last sentence in Principle 4, which would prohibit governments from requiring companies to locate their servers on their soil. Though, like many aspects of surveillance and privacy, this clause is dual-use: it would protect corporate employees from being hauled into court while simultaneously preventing governments from imposing censorship regimes on end-users.
Returning to President Obama, he also observed: "Outside of our borders, the NSA's more aggressive. It's not constrained by laws." The implication is that the constitutional protections that extend to American citizens do not apply to individuals outside our borders. The Reform Government Surveillance Principles are clearly written from an internationalist and multinational perspective, and do not draw such distinctions. This is a good thing, because human rights do apply to individuals around the globe and guarantee their privacy in treaties, such as the International Covenant on Civil and Political Rights, that America has signed. Statecraft should not trample human rights, even if other countries strive to do so.
If we follow the president's remarks to their logical conclusion, the NSA just got a little out of hand, and we should keep calm and let the experts deal with it. With all due respect, we intend to be the watchers this time, and not the watched.