Daniel Nemenyi: Submarine state - On secrets and leaks
RP 193 (Sept/Oct 2015) / Commentary
Submarine state - On secrets and leaks
Like Pal, the Moynihan Secrecy Commission distinguishes two forms of regulation, treating secrecy as kind of ‘meta-regulation’ governing the possibility of regulation itself. Whereas ‘regular’ or ‘domestic’ regulation, that derived from statute, concerns the behaviour and action of citizens, the ‘parallel regulatory regime’ of ‘foreign’ or ‘secret’ regulation, derived often from undisclosed or vaguely defined legal sources, concerns what they may know, their access to information, secrecy. The Commission details how under the guise of a spectre of a Communist ‘enemy within’ during the Cold War a ‘culture of secrecy’ developed within government, independently of the threat of an actual organized Communist movement. The Communist Party had by 1950 already been ‘neutralized’, the Commission writes, and more ominously, ‘existed … merely as a device maintained by the US Government to trap the unwary’.
Schneier,
who was privy to Snowden’s troves before publication, lists four modes by which
the peoples’ victory was secretly undermined by the NSA and GCHQ. First, their
weakening of cryptographic algorithms. Second, their piggybacking of
domestic surveillance applications through enforced secret back doors – for
example, the threatening of Yahoo with a minimum $250,000-per-day fine for not
succumbing quietly to PRISM. Third, the stockpiling of unknown ‘zero-day’
software and hardware vulnerabilities for future exploitation – analogous to
the stockpiling of secrets by which J. Edgar Hoover was infamous. Fourth,
hacking the fabric of the packet-based Internet architecture itself, a method
long decried by the West of China’s ‘Great Firewall’. In total, a ‘ubiquitous’
surveillance machine ‘efficient beyond’, Schneier writes, ‘Bentham’s wildest
dreams’… For
practical reasons, there can be no serious regulation of surveillance. Schneier
writes, ‘the more intrusive a surveillance system is, the more likely it is to
be hidden.’… ‘in the central tower, one sees everything without ever being
seen.’ Surveillance takes place in camera. It is a camera
obscura whose window silently inverts secrets into information, whose prism
refracts them into organizable metadata.
Submarine state - On secrets and leaks
It’s not answerable to anyone, given it doesn’t exist in law; no minutes
are kept; and it’s confidential. No citizen ever knows what is said within…
These are decisions of almost life and death, and no member has to answer to
anybody - Yanis Varoufakis, description of the Eurozone [1]
Recently in this journal Maïa Pal succinctly formulated a major quandary
of contemporary politics. Pal
notes that the secrecy under which the negotiation of the ‘largest
free-trade zone in the world’ is taking place – TTIP, TPP, CETA (and, we should
add, TiSA, the Trade in Services Agreement) – ensures that ‘what communities
are being excluded from is, in a sense, the regulation of regulation’ (RP 190,
p. 8). Even members of Congress, the USA’s official regulatory organ, have
complained of the silence met by their own staff when applying for permission
to access these negotiations’ processual documentation, [2] which,
if it were not for WikiLeaks and the occasional leaking delegate, would remain
securely under seal until several years after any possible signing.
Though the
primary object of Pal’s commentary is the content of the regulations
themselves, her distinction between two kinds of regulation – the neoliberal
regulations themselves and the ‘regulation of regulation’ from which, she
writes, ‘communities are being excluded’ – reflects precisely the distinction
made in 1997 by the landmark contemporary report on secrecy within a Western
nation state, the Report of the Commission on Protecting and Reducing
Government Secrecychaired by Senator Daniel Patrick Moynihan. [3] There
is a history and a logic to the politics of secrecy today.
History of the state secret: The Moynihan Secrecy Commission considered secrecy to be not only a form
of government regulation, but ‘the ultimate mode of regulation’,
since, as Moyniham exclaimed in his Senate testimony, ‘the citizen does not
even know that he or she is being regulated!’
Like Pal, the Moynihan Secrecy Commission distinguishes two forms of regulation, treating secrecy as kind of ‘meta-regulation’ governing the possibility of regulation itself. Whereas ‘regular’ or ‘domestic’ regulation, that derived from statute, concerns the behaviour and action of citizens, the ‘parallel regulatory regime’ of ‘foreign’ or ‘secret’ regulation, derived often from undisclosed or vaguely defined legal sources, concerns what they may know, their access to information, secrecy. The Commission details how under the guise of a spectre of a Communist ‘enemy within’ during the Cold War a ‘culture of secrecy’ developed within government, independently of the threat of an actual organized Communist movement. The Communist Party had by 1950 already been ‘neutralized’, the Commission writes, and more ominously, ‘existed … merely as a device maintained by the US Government to trap the unwary’.
Eisenhower in particular heightened this trend, rolling out a full
national programme ‘for keeping out the disloyal and the dangerous’ that would
win the approval of Senator McCarthy. Disloyalty was twinned with danger of any
kind, which lumped anyone ‘who talks too freely when in his cups, or a pervert
who is vulnerable to blackmail’ into the category of the ‘enemy within’. The
precedent for this was an Executive Order made by President Wilson the day
following the USA’s declaration of war against Imperial Germany and its direct
involvement in World War I. Wilson’s purportedly temporary emergency measure
allowed for the swift removal of anyone within federal government ‘inimical to
the public welfare by reason of his conduct, sympathies or utterances’. [4] Two
months later the long-contested 1917 Espionage Act was passed, which makes it
illegal, by punishment of death or thirty years imprisonment, to transmit for
any reason whatsoever secret state information to an enemy and, by extension,
the public and media. As Chelsea Manning would discover, the Espionage Act
admits no moral defence.
Despite this, when leaks to the press of secret information did happen,
they generally derived from state’s echelons as a way of flexing political
muscle. ‘The ship of state is the only known vessel that leaks from the top’, a
Plato-inspired saying goes. The Moynihan Secrecy Commission notes that
‘Presidents soon came to realize that “even harmless secrets were coins of
power to be hoarded”’, and that ‘[s]ecrets had become assets; organizations hoarded
them, revealed them sparingly and in return for some consideration’. This was
most famously the mode by which J. Edgar Hoover, an ‘artist with leaks’ as
contemporary historian Matthew Connelly calls him, held dissidents and even
presidents in check, becoming arguably the most powerful figure in US politics
due to his FBI’s extensive accruement and targeted revelation of secrets. [5] The
leak was an institutionalized mode of political exchange, of governing and
trading blows, inasmuch as its parent, the secret, became a valuable commodity
of regulation.
Hoover’s amassing of secrets was by no means anomalous to the general
culture of government during the Cold War. Systematically ever greater amounts
of data classified as Secret or Top Secret was being generated, whilst the rate
of declassification failed to keep pace. This in itself ensured the expansion
of state arcana. Hence a culture of secrecy within government inflated during
the Cold War and not only, probably not even primarily, because of Soviet
espionage or actual ‘Huns within our own gates’. Rather through a power dynamic
internal to governance itself. [6] ‘Secrecy
begets suspicion’, Moynihan’s Commission writes, to which could be added ‘and
suspicion begets secrets’.
The Cold War culture of secrecy would expand massively in our own time.
Far from the ‘culture of openness’ called for by the Moynihan Secrecy
Commission, under Obama’s much vaunted promise of ‘open governance’ [7] less
than 1 per cent of the annual US classification bill is spent on
declassification, with the bill itself having soared to $14.98 billion. [8] The
quantity of secret information is such that almost 5 million Americans are
employed to interact with it – a 50 per cent rise since 1999 – of which 1.4
million may access the highest, Top Secret, level. [9] Over
77 million US documents were stamped as risks to national security should they
be known to the world in 2014, compared to under 6 million in 1996. [10] Hillary
Clinton’s reliance on a personal, non-archived inbox whilst Obama’s secretary
of state has highlighted a further fact: vast swathes of national archive
material simply no longer exist. Of the billion-odd emails sent by the State
Department in 2013, only 41,749 were not deleted. [11] The
rise of big data alongside a culture of governmental secrecy has engendered
national archival arcana, albeit with voids of astounding magnitude. As a
result, leaks have swollen in size too, and so has, apparently, the scale of
their punishment. Eight Espionage Act prosecutions against leakers have taken
place under Obama, compared to three by all presidents before him; Manning’s
and Edward Snowden’s are the most famous.
The ship of state is increasingly a submarine: hidden but leaking from
all sides. The repression recently meted out to leakers has been attributed to
the honed capacity to surveil and prove the culpability of their assailants.
Yet in reality many of these leaks demonstrate the opposite. As a rule, systems
of secrecy become harder to secure the larger and more complex they become.
Manning was caught because access to data and programmes on the computers she
used was inadequately controlled. [12]
Given cryptographer Bruce Schneier’s rule that security is not a final
product but a process as strong as its weakest link, the same rule which
applies to computer security and secrecy systems in general applies to the
state: the number of possible vulnerabilities grows proportionally to its size
and complexity. [13] Take
the enormity of the recent ‘thefts’ of data from the US Office of Personnel
Management (OPM), the body responsible for government hirings and, ironically,
managing Secret and Top Secret security clearances. OPM recently discovered
that since May 2014 records containing sensitive information on 4.2 million
federal personnel had been gradually stolen; and that, more recently, their
highly detailed background-check data on 21.5 million current, former and
prospective federal employees, contractors and families thereof had been too. [14] These
records are so detailed as to essentially constitute biographies. A hack of
similarly rich data also befell US health insurance giant Anthem Blue Cross
earlier this year, when their records on approximately 80 million Americans
were breached. China denies the obligatory accusations of its culpability for
such leaks, but what is clear is that intimate information on the lives of
Americans (and surely many others) is being gathered in ways beyond that
conventionally considered as surveillance even after Snowden.
Regardless of the actor directly responsible for these leaks, the fact
remains that they could not have occurred had the data not been recorded and
stored in the first place. An argument premissed on such lines must be made
against the UK’s care data programme, in which the NHS’s entire health-care
database is to be leased to private researchers despite the ease by which its
name-redacted records could be de-anonymized (a mode of leaking).
A similar
argument was pursued in the NASA v. Nelson case
(2007). Employees of the space agency objected to the imposition of
questionnaires which demanded such intimate detail of their lives as to
determine their ‘suitability’ of access against a screening matrix which
actually bunches together such ‘perversions’ as homosexuality, sodomy, carnal knowledge, incest, bestiality, indecent
exposure or proposals, illegitimate children, cohabitation, adultery, mental or
emotional issues, minor traffic violations, displaying obscene material, acting
drunk, and making obscene phone calls. [15]
Since even the Supreme Court rejected the employees’ concerns, such data
remained collectable and therefore liable to be breached; as it was in October
2012 when a non-encrypted NASA laptop containing a copy of the employee
database was stolen. [16]
Access control
A dyadic movement should be noted. Whilst the state becomes increasingly
imperceptible from the outside, it simultaneously demands full transparency and
information on the part of all others. To be in full view of the state is
necessary for the determination of access to, or exclusion from, its archives
and control.... read more:
