Seminar 2 Position Statement: Dr Clare Birchall (Institute of North American Studies)

A Secrecy of the Left

 

Secrecy and its productive possibilities have been obscured both by the fear that secrecy is always a gateway to micro-fascism and a moral attachment to disclosure. Recognizing this could open up a new way of understanding the political and moral alignments of concealment and disclosure. Should the radical Left jump on the bandwagon of Liberal (and neoliberal) transparency as a way to instigate change, or should it experiment with a politics of the secret?

When referring to a secrecy of the Left, I am thinking of different spaces, subjectivities and relations opened up by critical theories of, and aesthetic experiments with secrecy. For instance, Jacques Derrida has a ‘taste for the secret’ (2001), but not the common, contextual secret that hides somewhere waiting to be revealed. He is interested, rather, in the unconditional secret: ‘an experience that does not make itself available to information’ (1992: 201). Eschewing the hermeneutic drive and circumventing attempts to anticipate revelation, the unconditional secret within a text should be thought of as an encounter with the Other through which a responsibility of reading is made possible (and impossible). The secret, here, is fashioned in a productive capacity, in the service of ethics. In terms of democracy, Derrida defends the secret qua singularity, seeing it as an alternative to ‘the demand that everything be paraded in the public square’ (2001: 59). ‘If a right to the secret is not maintained,’ he writes, ‘we are in a totalitarian space’ (2001: 59). In light of such a formulation, we should be concerned for those who do not want to adhere to the dominant doctrines of democracy, including the doctrine of transparency. The subject of democracy is not simply one who is asked to be transparent to the state and act on transparency but also, in the guise of Derrida’s non self-present subject, one that is constituted by a singularity that prevents full capitulation to the demands of transparency.

For further inspiration, we can draw on the politico-aesthetic imagination of two collectives that span both ends of the twentieth century: Acéphale (1936-9) and Tiqqun (1999-2001). Georges Bataille wanted to ‘use secrecy as a weapon rather than a retreat’ (Lütticken, 2006: 32) and imagined how a secret society named Acéphale (which translates as ‘Headless’) could regenerate or revolutionise society at large by instigating the kind of unorthodox values he championed throughout his oeuvre including expenditure, risk, and loss. In their ‘Cybernetic Hypothesis’, the collective, Tiqqun, who were highly influenced by Bataille among others, call for ‘interference’, haze’ or ‘fog’ as the ‘prime vector of revolt’ (2001/9). They see opacity as a means to challenge the political project of cybernetics and ‘the tyranny of transparency which control imposes’ (2001/9).

We can also look to certain technological practices that question the promise and probe the political economy of openness. Take, for example, Freedom Box and TOR, which both, in different ways, try to facilitate secure networks and online anonymity; TrackMeNot, a browser extension that aims to derail surveillance and data-profiling by flooding engines with random search terms; the (now defunct) Web 2.0 Suicide Machine that scrambled one’s online identity by erasing individual data and friendship links on social media sites; or the decentralised hacktivist culture that connects under the title Anonymous.

Seminar 2 Position Statement: Dr Ross W Bellaby (Politics)

The Ethics of State Secrets: Snowden, Wikileaks, and the Need for Secrets?

Intelligence is an inherently secretive affair. The intelligence community often argues that in order to successfully maintain security they need their tactics, targets and personnel to be kept out of the public eye. However, the WikiLeaks affair in 2010 and then the NSA leaks by Edward Snowden in 2013 revealed surveillance programs of such unprecedented size and scope that they raised important questions regarding the type of activities people are happy to have carried out in their name. Importantly, however, they also highlight the tension that has developed between democratic principles such as transparency and accountability and the need to keep secrets in order to maintain security. It is unclear is how secretive the intelligence community should be and what ethical position whistle-blowers should hold in society. I argue that first we must understand the affect keeping secrets can have on society with the potential for eroding social cohesion and the fear of secret human rights violations. This can then be set against the good that the intelligence community can bring in terms of detecting, preventing and even predicting threats against the political community. By balancing these two concerns this paper will develop an ethical framework designed to guide if, when and by what means states can keep secrets.

Seminar 2 Position Statement: Dr Vian Bakir (Journalism & Media)

Too much secrecy and lies … again.

In 1972, Hannah Arendt observed that the danger with over-classification is that not only are the people and their elected representatives denied access to what they must know to form an opinion and make decisions, so are the key actors themselves. She made this observation in relation to the Pentagon papers – approximately seven thousand pages of classified documents prepared by US Secretary of Defence, Robert McNamara, detailing the slippery slope of US engagement in SE Asia. The Pentagon Papers showed that in order to generate support for its war aims, the US government had lied to Congress and the public about its reasons for invading Vietnam. Rather than its publicly proclaimed goals of securing self-determination for the people of S.Vietnam, helping them defeat Communism, containing China, avoiding the ‘domino’ effect, and preventing WWIII, the USA had deeper imperial ambitions.

This debate about secrecy and lying in politics resurfaces in the contemporary era, regarding the Bush administration’s torture-intelligence policy (2001-08). Since ‘9/11’, the Bush administration continuously proclaimed and publicized that Enhanced Interrogation Techniques (EITs) of al-Qa’eda suspects legally did not constitute torture while providing life-saving intelligence.  To bolster their claim regarding torture, the Bush administration created secret legal memos that redefined what constituted torture, so that EITs would fall outside this definition. While these secret, legal memos have since been made public and rescinded, and EITs recognized as constituting torture after all, the claim about EITs effectiveness was left hanging, as the intelligence agencies and politicians kept secret the evidence on which their claims were based.

Only in 2014 was this claim regarding effectiveness refuted, by the long-awaited, partial declassification of a US Senate Intelligence Committee study, concluding the CIA lied to the White House, Congress and media about EITs' efficacy and brutality. The CIA refutes these conclusions. We thus have two scenarios regarding EITs effectiveness, each involving deception. (a) Politicians and watchdog media are inept and the CIA are effective liars; or (b) the CIA is being blamed to protect politicians from being held accountable for their torture policy. Given that politicians secretly changed the legal reality to accommodate their desire for EITs not to constitute torture, scenario (b) is the more probable.

These twin forces of secrecy and continuous manipulation of what enters the public sphere make it difficult to achieve a properly informed citizenry that is aware of what is done in their name, and for their protection. Wouldn’t achieving a properly informed citizenry constitute the first step towards a more progressive conception of security? Wouldn’t this allowing meaningful public reflection on what we would like and expect our own intelligence agencies to do in our own name, and for our own protection? Herein lies a stumbling block to the much vaunted debate on privacy versus security.

Seminar 2 Debating Technical and Ethical Limits of Secrecy & Privacy - WELCOME

Welcome – by Vian Bakir

Welcome to the second of six seminars in the ESRC-funded seminar series, DATA-PSST! On 24^th March 2015 we continue the series with a full day seminar at the University of Sheffield, hosted by Dr. Emma Briant and Dr. Ross Bellaby. We’ll briefly reflect on key themes emerging from Seminar 1 at Bangor University, Transparency Today: Exploring the Adequacy of Sur/Sous/Veillance Theory and Practice – this ably captured by our participating PhD students, and our Bangor hosts, Dr. Martina Feilzer and Dr. Yvonne McDermott Rees.

Most of the day will be given over to exploring technical possibilities and debating what is desirable regarding secrecy and privacy in the digital age. We’re bringing together cultural, philosophical, social, political and technological experts in digital and social media, privacy, secrecy and intelligence, and we’re opening up the debate to people in the real world with different views on the value of secrecy and privacy, or to what these should be applied. The aim is to detail what technology is making possible and to ask whether it is politically, socially and ethically desirable. Post-Snowden, it’s a debate that’s been raging in some countries (like the USA, where the fourth amendment to the US constitution prohibits unreasonable searches and seizures against US citizens), but has been much more quiescent in the UK – a country well-known for tight state secrecy in national security matters. Robert Hannigan, Director of Britain’s signals intelligence agency, GCHQ, wrote an opinion piece in the Financial Times on 3 November 2014, where he stated ‘GCHQ is happy to be part of a mature debate on privacy in the digital age.’ However, GCHQ did not respond to my invite to come and debate with us. Maybe we are not mature enough? Also unresponsive to my invite were the big technology companies that Snowden revealed were complicit in what the British state calls ‘bulk data collection’ (and what most people would call ‘surveillance’ of suspicionless citizens).

Never mind! Our participants are coming together from different fields of expertise to assess the value of secrecy and privacy and how these concepts interact with a digitising society. We’ll be posting Position Statements from participants on this blog. Comments are enabled - so please do join in the debate – even if you can’t make it to Sheffield. 

Key questions are:

• What are the main commercial, political, legal and social features of secrecy?
• What is the relationship between technology, state surveillance and secret- keeping, and individual privacy?
• What social good do privacy and transparency offer and under what conditions can these be ethically and technically limited?
• Are our current conceptual tools adequate to the task of addressing contemporary transparency practices?

Fashionistas and counter-surveillance

For all those who want to counter surveillance, be it from drones, cameras or mobile phones, here are some more ideas from New York artist Adam Harvey: http://www.bbc.co.uk/news/technology-25914731
It ranges from low-tech, wacky hair-over-the-face arrangements to higher-tech heat-disguising jackets. We'll be discussing such transparency arrangements further in Sheffield in march, for our Seminar 2 on the technical and ethical limits of secrecy and privacy. All comments welcome below!

Andrew McStay: Response to Iain Bourne

Many thanks Iain for your contribution and for taking time out for a considered response. Here are my responses (Iain’s comment is the main bullet point, followed by my response). I’ve posted this as a standalone post because the comment tool will not accept such a long comment! (4906 characters is the limit apparently.)

-       Iain: Should our objective should be to prevent surveillance per se?

o   Andy: No, I think all in the debate understand that surveillance is not innately bad. The question is one of proportionality, type of surveillance, the role of indiscriminate surveillance, and whether we should be surveilling good folk with tools that most do not understand to chase bad guys. Consent and openness seems to be missing.

-       Freedom depends on security and that security depends on surveillance.

o   Agree to an extent, but the question is about form, type, proportionality, controls on mission creep and the role of politics (frequently reactionary, e.g. ISIS and Charlie Hebdo).

-       ‘If you have done nothing wrong you have nothing to fear’ … ‘it is likely that CCTV or electronic surveillance will have a more significant effect on someone who has broken the rules than on someone who hasn’t’. 

o   Other people interested in privacy will answer this their own way (there are lots of arguments against it). Some of these will entail appeals to the nature of consent in democracies, the need for some healthy distance between citizenry and governments, problems with what happens when the next government comes to power, who incumbents will choose to share this information with, and so on.

o   For me it boils down to a question of trust. Can the state be trusted with increasingly granular information about us (and not just metadata as claimed)? The answer for me is no – indeed the Snowden leaks themselves highlighted how badly cared for this data is. This is exacerbated by the fact that we are in very early days of networked living (pre-internet of things and wearables). I agree though that oversight, accountability and conversation is required.

-       ‘Maybe we need to look more at the effect of surveillance than on the surveillance itself. Maybe this is as true in ‘bad’ states as ‘good’ ones. Maybe the issue even in true surveillance societies is not the surveillance itself but the subsequent arrest, unfair trial and internment in a gulag’.

o   This is akin to the big data argument and shift towards explicit harm over data collection itself. I appreciate this is a convenient solution when so many organisations are collecting so much information, but my gut reaction is “no”. Consent does not work that way around and, particularly in the case of personal information (i.e. DPA definitions), we should push back against this tendency.

-       ‘Despite much effort I think privacy advocates have found it very difficult to demonstrate the negative effect of surveillance per se on ‘ordinary’ citizens.’

o   I think this is true to an extent, we have struggled to state clear, specific and demonstrable harms. My feelings on this are three-fold: 1) concerns are longitudinal (what issues are we storing up for the future?); 2) are we to open the door to total transparency (of searches, speech, location, emotional states and so on)? There are very powerful technologies in use and on the horizon (I’m interviewing many of the companies making these) and I’m not sure our future is best served by state employment of these; 3) can we rely upon this government and the next to care for sensitive information (that was not collected with informed or tacit consent).

o   I would counter too that the state has struggled to make the logical case why indiscriminate surveillance of all communications, webcams, mobile phone telephony amongst other sources is required.

-       ‘Actually, I think most people make a Hobbesian surveillance – freedom trade-off most of the time, but won’t articulate it as such. I think people are aware of CCTV cameras and of GCHQ and Snowden and have seen detective shows where the police use telecoms data to catch the baddies. Maybe they believe that state surveillance is there to stop bad guys doing bad things, not regular people doing good things, and that the world would be more dangerous and traditional freedoms would be eroded faster without surveillance. A perfectly understandable view.’

o   This argument entails tacit agreement with the state in exchange for security. There are a few problems with the Hobbes analogy, not least that we were not in a “state of nature” beforehand ("solitary, poor, nasty, brutish and short"). Note too that this explicitly means tacit agreement of freedoms (i.e. freedom is reduced for an exchange). Do you agree then that surveillance entails some loss of freedom? Also, a [social] contract usually implies that terms are understandable. This is not the case in surveillance and instead we are asked to take it on faith that: a) surveillance is necessary; b) that powers will not be exceeded; c) that there will be no mission creep; d) that data will be cared for and not lost or leaked. Plus, it is unclear that consent was gained (even privacy activists were surprised by scale of Snowden leaks). Lastly, if we are going by the social contract approach, then surely the state broke the last contract through indiscriminate surveillance?

o   I agree with the general point about Hobbes in that we have a police force to make us safe, but this argument does not scale to the activities undertaken by GCHQ/NSA because of the nature of the over-reach.

-       We need a proper set of surveillance safeguards – rights for ‘surveillees’, effective oversight and review, transparency, no dodgy deals with tech cos. etc. Establishing this depends on the development of a much more mature and mutually understanding relationship between privacy advocates and our surveillants.

o   Agreed! I do not think people working for the security service are malevolent, but I do think there is a systemic problem in how we are managing information and the capacities of new technologies. This requires social conversation and politicians who understand that they are not above the law, and who believe themselves to be accountable to the electorate.

-       Privacy advocates will not get anywhere if they’re permanently in opposition to forces that will always be stronger than they are. 

o   Unfortunately I agree, although I think you caricature the situation somewhat. Few believe the situation to be one where we seek no surveillance, but rather most prefer one that watches the bad guys/gals rather than the good guys/gals.

Really look forward to meeting in Sheffield and carrying on this much needed conversation!

Iain Bourne, Group Manager – Policy Delivery, Information Commissioners Office

In response to policy recommendations produced from Seminar 1 on 'Transparency Today: Exploring the Adequacy of Sur/Sous/Veillance Theory and Practice, 6th January 2015'

These views are my own and do not represent the ICO.

Interesting paper and recommendations – thank you.

On recommendations 4 and 5 – maybe we need to stand back a little bit and question some basic assumptions in this debate about the relationship between surveillance, privacy and freedom. In particular we should ask ourselves whether our objective should be to prevent surveillance per se and whether we can really expect individuals to seek to avoid interference with their privacy through ‘sousveillance’.


Maybe we should acknowledge that, to a large extent, freedom depends on security and that security depends on surveillance. Maybe we need to challenge the ‘classical’ view that more surveillance necessarily equals less freedom.


I think there’s a very compelling Hobbesian argument that by surrendering a degree of our privacy to the state through toleration of its surveillance, we are in fact safeguarding our security and ultimately our freedom. Of course this depends on what kind of state you are dealing with and what sort of person you are – and of course on how much privacy you are expected, or required, to surrender.


‘If you have done nothing wrong you have nothing to fear.’ Generally this argument is harshly rejected in privacy circles. However, in the context of surveillance it is largely true, again depending on what sort of society you inhabit. If the system is working right, it is likely that CCTV or electronic surveillance will have a more significant effect on someone who has broken the rules than on someone who hasn’t. (Whether the rules are the right ones is of course a crucial matter.)


Maybe we need to look more at the effect of surveillance than on the surveillance itself. Maybe this is as true in ‘bad’ states as ‘good’ ones. Maybe the issue even in true surveillance societies is not the surveillance itself but the subsequent arrest, unfair trial and internment in a gulag.


Despite much effort I think privacy advocates have found it very difficult to demonstrate the negative effect of surveillance per se on ‘ordinary’ citizens. There has been talk of psychological inhibition and so forth, but the evidence has never been very convincing.


Assuming there is more surveillance now than twenty years ago – has our freedom been curtailed in any apparent or measurable way? Have we changed our behaviour so as to avoid surveillance? No. Au contraire. We willingly create and disseminate more and more data about ourselves all the time. There doesn’t seem to be much opposition either to state or private organisations collecting more and more data about us. I don’t put the lack of opposition or counter-surveillance down to a lack of consciousness. I put it down to the lack of negative effect of the expansion of data collection and analytical activity on ordinary people’s lives. (Note that data creation and surveillance are quite different but are often conflated in this debate. There could be more data but less surveillance or vice versa. Some apparently highly intrusive societies were very data poor - e.g. theocratic mediaeval villages.)


The fact that most people find it hard to see surveillance as having any negative effect on them is presumably why they tolerate it. There is very little evidence of ‘ordinary’ citizens actively taking measures to avoid surveillance. For example who – apart from a fleeing bank-robber – would be likely to vary their route home in order to avoid CCTV cameras? Speed traps maybe but that’s about the consequences of surveillance (a fine) rather than the surveillance itself and – again – the good drivers who stick to the rules have nothing to fear and indeed probably want the bad drivers to be caught. (Check out iSee here: http://www.appliedautonomy.com/projects.html for a CCTV avoidance program.)


The privacy – surveillance debate often lacks political context. It’s easy to see it as the state versus citizens and to ignore the different types of state and the different types of citizen. Privacy and freedom are often conflated. They need to be separated and treated as different social values. You can have freedom without privacy and privacy without freedom: discuss. It’s too simplistic to say though that more privacy necessarily equals more freedom.


Actually, I think most people make a Hobbesian surveillance – freedom trade-off most of the time, but won’t articulate it as such. I think people are aware of CCTV cameras and of GCHQ and Snowden and have seen detective shows where the police use telecoms data to catch the baddies. Maybe they believe that state surveillance is there to stop bad guys doing bad things, not regular people doing good things, and that the world would be more dangerous and traditional freedoms would be eroded faster without surveillance. A perfectly understandable view.


So far so good but the good state equals good surveillance view, and the benign privacy – freedom trade-off, depends on the integrity of the state. This in turn depends on good state actors doing good state things. Your seminar summary talks about the ‘dark corners of power’, where good state actors can presumably do bad state things – although the light of surveillance could presumably stop them doing this.


The reason all this is so important now is that yes we have more data than ever and probably more surveillance than ever (if more surveillance equals more data x more people). It is clear that our surveillants (another good French word) are getting twitchy – post-Snowden – about the
general governance regime surrounding state surveillance and about public attitudes to it.

We need a proper set of surveillance safeguards – rights for ‘surveillees’, effective oversight and review, transparency, no dodgy deals with tech cos. etc. Establishing this depends on the development of a much more mature and mutually understanding relationship between privacy advocates and our surveillants. This works both ways but it depends on challenging the assumption that stronger privacy equals weaker security. It might mean more targeted and precise security, but that’s different to weaker security. (I think this is what Obama is trying to do with his oversight board post-Snowden.)


Privacy advocates will not get anywhere if they’re permanently in opposition to forces that will always be stronger than they are. They will remain marginalised and irrelevant – in relation to both the state and the general population. The benign effect they could have in terms of introducing effective safeguards will never materialise. Both sides need to recognise that they are in fact on the same side, that we have common enemies and that security without privacy is as undesirable as privacy without security – both result in a lack of freedom.


It would be interesting to see what would happen if we had a surveillance moratorium of say two weeks where we turn off all the cameras and shut down all the data feeds. Maybe we’d all enjoy a golden era of unrepressed, uninhibited freedom. Maybe it would make no difference at all. Or maybe very bad things would happen. Personally I would book a holiday somewhere else. James Madison – the 4th US president – said that ‘if men were angels no government would be necessary’. Maybe the same is true of surveillance.


These are my personal observations, intended to further discussion of an increasingly important issue. They do not reflect the view of the ICO, although we are keen to support and contribute to debate in this area.