Friday, May 27, 2016

Daniel Nemenyi: Submarine state - On secrets and leaks

RP 193 (Sept/Oct 2015) / Commentary
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 ultimatemode 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.

Leaks
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: