The worm turns: public begins to resent state invasion of privacy

By Peter Huck

Public opinion is swinging in favour of WikiLeaks and NSA whistleblowers and against erosion of privacy by Five Fingers spy network

Cartoon / Rod Emmerson
Cartoon / Rod Emmerson

Americans can feel proud. In a July 23 letter to Russian authorities, Attorney-General Eric Holder promised that Edward Snowden's fears he will be executed or tortured if he returns to the United States for trial were "entirely without merit", a bid to prevent America's old Cold War adversary from giving the National Security Agency whistleblower asylum. Such is the dismal legacy of the war on terror.

Snowden is charged with violating the Espionage Act, the draconian l917 law devised to indict foreign spies but repeatedly used by the Obama Administration to target whistleblowers. Yesterday he was granted temporary asylum for a year and his lawyer, Anatoly Kucherena, said he had left Moscow Airport for an undisclosed "safe place".

The White House said President Obama was "extremely disappointed" and was reconsidering a visit to Moscow next month, evidence of the wider political ripples caused by the NSA scandal.

Even as Snowden accepted sanctuary in Vladimir Putin's authoritarian Russia, which is no friend to dissidents, back in the US a military court had reached a verdict in the court martial of US Army Private Bradley Manning.

Manning, 25, was found guilty on 20 espionage and other charges but not of "aiding the enemy", the most serious accusation. He had released some 735,000 US military and diplomatic files to WikiLeaks, and thus the media, in 2010, the biggest leak of secret documents in US history.

Manning faces a maximum 136 years in prison. The trial's sentencing phase is expected to stretch through August. His conviction heightens speculation the US will try to extradite WikiLeaks founder Julian Assange as a co-conspirator in its crusade against whistleblowers.

Meanwhile, Snowden's NSA revelations trickle out. Last Sunday, the Guardian's Glenn Greenwald told ABC News that "low level" NSA staff could access trillions of stored emails and telephone calls, reading or listening to the contents, as well as look at anyone's online search and browsing activity, with no court oversight, through software called Xkeyscore. Evoking Casablanca's Captain Renault on hearing gambling occurred in a club, Senate Intelligence Committee Republican and NSA defender Saxby Chambliss told ABC he was "shocked" by Greenwald's allegation. He said the NSA "assured" him it would not read emails or listen to calls without a court order.

Obama defended mass surveillance in meetings this week with US lawmakers from intelligence committees, scrambling to counter the news about Xkeyscore as critics in Congress seek to rein in the NSA.

Given the prospect of ongoing revelations as journalists mine NSA material, or WikiLeaks spills more secrets, the stakes are huge for the US and its allies in the Five Fingers spy network: Australia, Canada, Britain and New Zealand's Government Communications Security Bureau.

The Manning verdict may intimidate potential whistleblowers but such heavy-handedness could backfire. Public outrage at the NSA's mass surveillance has sparked fears the balance between personal freedom and state power is dangerously out of whack, posing the question: who holds ultimate power in a democracy, citizens or elected representatives?

There are growing demands that "national security" - a vague term critics fear can hide official malfeasance - be specifically defined so government actions can be made more accountable and transparent.

A July Pew Research Centre poll found that, for the first time since 9/11, more Americans are concerned about threats to their civil liberties than they are about terror attacks.

Pew found 56 per cent of respondents believe federal courts have failed "to provide adequate limits on telephone and internet data [which] the Government is collecting as part of its anti-terrorism efforts".

A further 70 per cent believe the US uses the data for "purposes other than investigating terrorism". And 63 per cent believe "the Government is also gathering information about the content of communications".

This was in stark contrast to a 2010 Pew poll that found 58 per cent felt the US needed to step up efforts to protect itself. After Snowden, citizens are asking if they need protection from their own governments.

"The larger question - whether people in the US are willing to sacrifice their right to privacy, their freedom of expression and their right to information in the name of national security, particularly when there's so much evidence of the US security apparatus having gone rather mad - is becoming a much more critical conversation," says Widney Brown, Amnesty International's senior director of international law and policy.

The revelation in July that Director of National Intelligence James Clapper lied to Congress about mass surveillance stoked concern the secret Foreign Intelligence Surveillance Court rubber-stamps NSA excesses, the vast trove of classified material masks corruption, and the NSA's partnership with private contractors risks conflicts of interest.

"People who are subject to surveillance and told it's for their own protection are beginning to understand the price is too high," says Brown. "The other thing that's critical about why privacy matters is can you complain about your government? Can you dissent? And if everything you say is collected how much will be used against you?"

It is a sinister prospect with far-reaching legal issues. The Electronic Frontier Foundation, Reporters Without Borders and about 100 other groups have signed the International Principles on the Application of Human Rights to Communication Surveillance, which echoes an April United Nations report about the dire impact of state surveillance on human rights.

Then there is the wider technological fallout. How private are communications made online or by phone now we know telcos and tech giants like Google, Facebook and Microsoft grant access to the NSA?

The NSA fallout will hasten the "Balkanisation" of the internet, writes the Guardian's John Naughton, the end of the utopian dream of one vast network for all. "Nothing, but nothing, that is stored in their 'cloud' services can be guaranteed to be safe from surveillance or from illicit downloading by employees of the consultancies employed by the NSA."

The commercial implications for Google and others - caught in a Catch-22 situation because the FISC stops them revealing they were subject to a secret NSA surveillance order - as private companies fret about the security of confidential and privileged information are enormous. And news that the NSA spied on European Union members has generated political ripples, complicating efforts to form a US-EU free trade zone.

There is also suspicion the NSA - and its Five Eyes partners - may be outsourcing domestic snooping to circumvent national prohibitions. Agencies enjoy close links. Snowden's leaks show the NSA paid the British Government communications headquarters over 100 million ($191.4 million) from 2009 to 2012 for access to, and influence over, intelligence.

"What we've seen with the creation of a boundless digital sphere," says Brown, "is that states are reaching far beyond their borders in a lot of their unlawful surveillance, and at the same time looking at outs where they basically have a quid pro quo going on. They did that in the non-digital world, outsourcing torture. That's what renditions were about."

The Snowden affair also highlights double standards when it comes to extradition (Russia and the US do not have an extradition treaty). On July 18, Panama detained ex-CIA station chief Robert Seldon Lady on an Interpol warrant. Lady and a CIA snatch team were convicted by Italy in absentia for the 2003 rendition of Muslim cleric Hassan Mustafa Osama Nasr, seized in Milan and taken to Egypt, where he says he was tortured. Within 24 hours Lady had left Panama for the US.

Curiously, the US media was silent on this development - Washington said Panama had "expelled" Lady - even as Snowden's fate was endlessly debated. Which shines a harsh light on how the US projects power. Brown says that since 9/11 "the US has completely subverted the paradigm a government should act transparently and the people they govern should have some assurance of privacy". Instead, citizens are subject to mass surveillance waved through by an unaccountable secret court. Which could be viewed as a huge win for terrorism. Like the judge who will pass sentence on Manning, the public court is still out on that one.

The leakers

Edward Snowden:

• June 5: Guardian publishes first leak that says the NSA is collecting the telephone records of millions of Americans.

• June 6: Guardian and Washington Post publish details of the Prism programme.

• June 9: Guardian identifies Edward Snowden, at his own request, as source of the leaks.

• June 14: US files criminal charges against Snowden.

• June 23: Snowden leaves Hong Kong for Moscow, applies for asylum in Ecuador.

• July 6: Bolivia, Venezuela and Nicaragua say they would offer Snowden asylum.

• July 12: Snowden says at news conference that he is seeking asylum in Russia.

• Yesterday: Russia awards Snowden asylum and he leaves airport.

Bradley Manning:

• October 2009: Private Bradley Manning sent to Iraq, where he has access to top secret information.

• November 2009: Makes contact with WikiLeaks for the first time after it leaked pager messages from 9/11.

• January 2010: Downloads the Iraq and Afghanistan war logs.

• April 2010: WikiLeaks posts a video of a 2007 incident in which Iraqi civilians and journalists are killed by a US helicopter gunship.

• May 29, 2010: Manning arrested in Kuwait.

• June 5, 2010: Manning charged with leaking classified information.

• March 11, 2011: Manning's charges updated to 22 violations, including "aiding the enemy".

• February 28, 2013: Pleads guilty to leaking military information.

• June 3: Court martial begins.

• Wednesday: Cleared of "aiding the enemy" but guilty of five espionage charges.

- NZ Herald

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