“You never want a serious crisis to go to waste,” said Rahm Emanuel back in 2008, because it’s “an opportunity to do things that you think you could not do before.” The former Obama adviser was speaking of the financial crisis and its potential for economic regulations, but it is arguably the surveillance state that best employs his maxim.
In the wake of last week’s devastating attacks in Paris, we can be all but positive that proponents of mass spying will shamelessly use this crisis to do things they could not do before. And that certainty is justified because this is exactly what federal spooks have signaled they intend to do.
Back in September, the Washington Post reported that surveillance agencies recognized there was no legislative momentum or public enthusiasm for their push to control encryption in communication devices like cell phones. While some agencies want to be able to force companies like Apple to build less secure phones to make investigations easier, their agenda is not widely shared by a country deeply worried about corrupt government, cyber crime, and corporate and state surveillance—or, at least, it wasn’t two months ago.
The then-stymied spies, WaPo noted, decided to bide their time and wait for a crisis (emphasis added):
Privately, law enforcement officials have acknowledged that prospects for congressional action this year are remote. Although “the legislative environment is very hostile today,” the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”
There is value, he said, in “keeping our options open for such a situation.”
Now, just such an event has tragically transpired, and privacy opponents have already started ginning up the outrage machine to blame the Paris attacks on encryption, which they claim the terrorists only decided to use because Edward Snowden’s whistle blowing warned them it was a good idea.
This is all ahistorical, counter-factual nonsense specifically designed to keep this awful crisis from “going to waste.”
First, terrorists have concealed their communications and used encryption for years. As Glenn Greenwald documents, there are news reports readily available online that discuss terrorist organizations using encryption back when Snowden was still a teenager:
The Snowden revelations weren’t significant because they told The Terrorists their communications were being monitored; everyone — especially The Terrorists — has known that forever. The revelations were significant because they told the world that the NSA and its allies were collecting everyone else’s internet communications and activities.
The evidence proving this — that The Terrorists have been successfully using sophisticated encryption and other surveillance-avoidance methods for many years prior to Snowden — is so overwhelming that nobody should be willing to claim otherwise with a straight face. As but one of countless examples, here’s a USA Today article from February 2001 — more than 12 years before anyone knew the name “Edward Snowden” — warning that al Qaeda was able to “outfox law enforcement” by hiding its communications behind sophisticated internet encryption
In fact, as part of a comprehensive takedown of this “Snowden + encryption = Paris” gibberish, Greenwald managed to dig up Senate testimony from 1997 that indicated that terrorists were, even then, using encryption to conceal their plans. As Greenwald remarks, “Any terrorist capable of tying his own shoe — let alone carrying out a significant attack — has known for decades that speaking on open telephone and internet lines was to be avoided due to U.S. surveillance.”
Second, and perhaps more important for future policy, less encryption and more spying does not make it easier to prevent this type of attack. That’s because mass surveillance floods intelligence agencies with far more data than is useful or intelligible for catching criminals.
The NSA has said it wants “the whole haystack” of digital information to find the needle that points to coming terrorism—but in practice the haystack crushes law enforcement officers, bogging them down in details that more traditional, limited surveillance would skillfully avoid (emphasis added):
By flooding the system with false positives, big-data approaches to counterterrorism might actually make it harder to identify real terrorists before they act. Two years before the Boston Marathon bombing, Tamerlan Tsarnaev, the older of the two brothers alleged to have committed the attack, was assessed by the city’s Joint Terrorism Task Force. They determined that he was not a threat. This was one of about a thousand assessments that the Boston J.T.T.F. conducted that year, a number that had nearly doubled in the previous two years, according to the Boston F.B.I. As of 2013, the Justice Department has trained nearly three hundred thousand law-enforcement officers in how to file “suspicious-activity reports.” In 2010, a central database held about three thousand of these reports; by 2012 it had grown to almost twenty-eight thousand. “The bigger haystack makes it harder to find the needle,” [Republican Iowa Rep. James] Sensenbrenner told me. Thomas Drake, a former N.S.A. executive and whistle-blower who has become one of the agency’s most vocal critics, told me, “If you target everything, there’s no target.” Drake favors what he calls “a traditional law-enforcement” approach to terrorism, gathering more intelligence on a smaller set of targets. Decisions about which targets matter, he said, should be driven by human expertise, not by a database.
Mass surveillance endangers our security and eliminating encryption—an important privacy protection against the invasions of government and criminals alike—will only add to the unproductive flood of data that already hampers counter-terrorism efforts.
Privacy opponents are eager to suggest that the deaths in Paris could have been prevented with more spying. They’re wrong, and allowing their narrative to prevail will not make life safer for Americans or our friends in France.