Spying on the UN: The majestic equality of the law

One of the superficial arguments made against Edward Snowden is, He signed a contract, for crying out loud! He agreed not to reveal this information. And he broke the law. So, of course, he belongs in prison.

Let’s talk about some of the other people who violated the contracts they signed and broke the law. People like Barack Obama. Just to pick an example at random, we have today in Der Spiegel (odd that it hasn’t appeared yet in the English-language press, so far as I have seen):

The US clandestine service NSA has been spying not just on the European Union, but also on the United Nations Headquarters. That has been revealed by secret NSA documents that Spiegel has examined.

According to these, the NSA succeeded in the summer of 2012 in penetrating the videoconference system of the community of nations, and to break the encryption. This “dramatically improved the data received from video-teleconferences and the capacity to decrypt these data,” according to one secret NSA document. “These data transmissions deliver to us the internal video-teleconferences of the United Nations (yay!)”. Within three weeks the number of decrypted communications rose from 12 to 458.

The US is committed by treaty not to conduct clandestine operations against the UN or the national representations there. “yay!” indeed. It’s good to see that violations of international treaties are considered with an appropriate level of seriousness within the agency.

So Barack Obama — and his security agents — have violated solemn treaties, ratified by Congress, hence part of the “supreme law of the land”. So do those who break the law definitely belong in prison? What about those who have revealed information that they have pledged to keep secret? Or is there some wiggle room to consider justifications and rationales for breaking the law?

The peer-review fetish: Let’s abolish the gold standard!

I’ve just been reading two books on the climate-change debate, both focusing on the so-called “hockey stick graph”: Michael Mann’s The Hockey Stick and the Climate Wars: Dispatches from the Front Lines, and A. W. Montford’s The Hockey Stick Illusion: Climategate and the Corruption of Science. I’ll comment on these in a later post, but right now I want to comment on the totemic role that the strange ritual of anonymous peer review plays for the gatekeepers of science.

One commonly hears that anonymous peer review (henceforth APR) is the “gold standard” for scientific papers. Now, this is a reasonable description, in that the gold standard was a system that long outlived its usefulness, constraining growth and innovation by attempting to measure something that is inherently fluid and abstract by an arbitrary concrete criterion, and persisting through the vested interests of a few and deficient imagination of the many.

That’s not usually what people mean, though.

An article is submitted to a journal. An editor has read it and decided to include it. It appears in print. What does APR add to this? It means that the editor also solicited the opinion of at least one other person (the “referee(s)”). That’s it. The opinion may have been expressed in three lines or less. She may have ignored the opinion.

Furthermore, to drain away any incentive for the referee(s) to be conscientious about their work,

  • They are unpaid.
  • They are anonymous. We know how well that works for raising the tone of blog comments.
  • Anonymity implies: Their contributions will never be acknowledged. If they contribute important insights to the paper, they may be recognised in the acknowledgement section: “We are grateful for the helpful suggestions of an anonymous referee.” Very occasionally an author will suggest, through the editor, that a referee who has made important contributions be invited to join the paper as a co-author. More commonly, a paper will be sent from journal to journal, collecting useful suggestions until it has actually become worth publishing.*
  • No one will ever take issue with any positive remarks the referee makes, as no one but the authors (and the editor) will ever see them. Negative comments, on the other hand, may get pushback from the author, and thus need to be justified, requiring far more work.
  • Normally, the author will be forced to demonstrate that she has taken the referee’s criticism to heart, no matter how petty or subjective. This encourages the referee to adopt an Olympian stance, passing judgement on what by rights ought to be the author’s prerogative.

Of course, I don’t mean to say that most referees most of the time don’t do a very conscientious job. I take refereeing seriously, and make a good-faith effort to be fair, judicious, and helpful. But I’m sure that I’m not the only one who feels that the incentives are pushing in other directions, and to the extent that I do a careful job, it is mainly out of some abstract sense of duty. I am particularly irritated when I find myself forced to put original insights into my report, to explain why the paper is deficient. I would much rather the paper be published as is, and then I could make my criticism publicly, and then, if I’m right, be recognised for my contribution. Continue reading “The peer-review fetish: Let’s abolish the gold standard!”

Why should David Miranda keep David Cameron’s secrets?

One more thought on l’affaire Miranda that hasn’t, I think, been sufficiently represented in the public discussion: What is stolen information? If David Miranda had picked up the British crown jewels in Berlin, and was flying them to Brazil, and was foolish enough to change planes in Heathrow, of course the police would have every right to stop him there and confiscate the jewels.

In fact, though, Miranda was carrying information. If his memory was good enough — if he had a photographic memory — he could have carried it in his head. He is a Brazilian citizen who has, so far as I know, no connection to the UK. What possible justification could there be for expecting him to keep British secrets? If we consider the implications of countries stopping travellers in transit, to examine and confiscate the information they are carrying, it is chilling. And again, what if the traveller is carrying the forbidden information in his head rather than on a hard drive? I’m sure I know many things which whose distribution could benefit enemies of, say, the Iranian state, or the Chinese.

“Could be of benefit to terrorists”: Theresa May channels Al Franken

One of the more ingenious bits of political satire that I have seen in recent years was a Saturday Night Live sketch (apparently conceived by Al Franken) that parodied the use of out-of-context quotes or intentional misunderstanding of words in political advertisements. This was during the 2008 US presidential election, and was directed at John McCain, but there was no shortage of alternative targets; and Mitt Romney’s 2012 presidential election campaign exceeded even the satire.

The sketch showed McCain in a sound studio, recording the “I approved this message” message, purely as a frame for showing a succession of increasingly ridiculous ads. In one, an ominous voice says,

Barack Obama says he wants universal health care. Really? Health Care for the whole universe? [pictures of spiral galaxies] Even for Osama bin Laden? [pictures of Obama and bin Laden next to each other]

It proceeds to my favourite, the same ominous voice intoning that “Barack Obama says he wants to provide tax breaks to child molesters”. At that the McCain character asks, is that true? The advertising executive explains that Obama has proposed giving tax breaks to all Americans, and that would certainly include child molesters.

I thought of this when I heard about this recent BBC interview with Home Secretary Theresa May, explaining why the police were justified in using anti-terrorism laws to interrogate David Miranda, who was suspected of nothing other than ferrying documents that the UK wanted to keep secret between two journalists. Despite the fact that the law seems to allow detention only for the purpose of ascertaining whether the person detained is a terrorist, May argues that the information he was carrying “could be of benefit to terrorists”. Of course, as William Saletan has pointed out, this is a climb-down from the Home Office’s earlier language that Miranda carried “information that would help terrorism”, and that many people believe — and certainly the journalists and their publishers seem to believe — that publishing this information would help everyone. If it helps terrorists, then only incidentally.

Or, as Theresa May would have rewritten the SNL sketch,

Glenn Greenwald and Eric Snowden say they want to provide secret information about US and UK espionage activities to al Qaeda.

Checks and balances and the British constitution

There is a theory that says that Britain has a unified state, with Parliament supreme, more decisive and hence less considerate of individual rights than the American state, intentionally hamstrung as it is with checks and balances. Well, that’s the theory, but I’ve long had the non-expert impression that British governance has more practical checks on government power than the US federal government has. (Federalism itself is an important check on the US government, but whether it serves or vitiates the liberty of individual citizens depends very much on the nature of the state government. Germany, with both federalism and a deep understanding of the need for limited government seems substantially better at protecting individual rights than either of the U’s.)

A case in point is the government response to the David Miranda affair. The government has gone through its whole playbook, from dismissing the incident as a routine police matter to accusing its critics of condoning terrorism. The critics, both inside and outside of government, have not been silenced. And now, it turns out there is an official “independent reviewer of terrorism legislation”, with real power to interrogate police and government officials, and report to the public.

The Guardian reports

David Anderson QC, the government’s independent reviewer of terrorism legislation, who held talks with the Met police this week, will focus on schedule 7 to the Terrorism Act of 2000, which lets police detain people at ports and airports without grounds for suspicion.

This is giving cover to the Liberal Democrats, the codependent spouse of the surveillance-addicted Tories, to withhold support for the government action. And unlike American judges, who roll over as soon as the government whispers “national security”, British judges have been willing to demand fealty to the rule of law with respect to the materials seized from Miranda:

Two judges ordered the Met and Home Office to desist from using, copying or sharing the materials until next Friday unless it were for the purpose of ensuring the protection of national security or for investigating whether Miranda was himself involved in the commission, instigation or preparation of an act of terrorism.

To the extent that the security services in the US and the UK are on a rampage to demonstrate that no one can mess with them and count on them reacting in any way reasonably or proportionately (as I argued here, and more recently Bruce Schneier argued here), this is exactly the sort of moderate, calm, institutional response that is best calculated to reestablish the authority of democratic institutions. But possibly drive the security services to lash out even more ferociously.

On foot and cycle in Berkeley and Oxford

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Berkeley bicycle boulevard.
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Wide Berkeley sidewalk.

I’ve just returned from my sabbatical in Berkeley, and while I’ve written some harsh criticism of life in the US when it unfortunately intersects with the medical system, as long as you can stay healthy there are some conspicuous advantages to life in Berkeley. Particularly if you walk or ride a bicycle.

Some of it is no one’s fault: There’s obviously more space in Berkeley for wide sidewalks, and the crush of tourists on a few major boulevards, particularly in summer, is peculiar to Oxford. On the other hand, Oxford city council chooses to allow merchants to block half of the narrow pavement with advertising signs. Still, with the narrow, often one-way streets, Oxford is no paradise for drivers either.

And maybe that’s part of the reason why Oxford drivers are, there’s no way to prettify this, hateful toward non-drivers. (Presumably toward other drivers as well, but I haven’t had that experience.) Not all of them, of course, and not all the time, but enough to make cycling something I avoid when I have time to walk, and makes me feel on edge much of the time even when I’m walking. Berkeley drivers are sometimes thoughtless, of course, but the threatening incidents of recklessness still seem less frequent in Berkeley than the incidents of active aggression and rage in Oxford.

Cycle lanes are occasional and intermittent, and the average Oxford driver considers “cycle lane” to be just a fancy word for “free parking”. We don’t have as much of a problem with restaurants or constructions sites parking their dumpsters on the cycle lanes as they apparently have in Belfast, but here’s a cheeky comment on their difficulties.

I suspect that the better conditions in Berkeley are a good example of the civilising influence of the law. California law requires that drivers stop for pedestrians in any crosswalk, whether or not it is marked. And they do. Nearly always, except on high-speed highway-like urban roads, and even there if you make yourself conspicuous you’ll usually get someone to stop pretty quickly. This gets people into the habit of paying attention to slower travellers using the road, and frequently they’ll stop even when they are not required to, for instance, for pedestrians crossing in the middle of a block, or for cyclists on a cross-street.

In Oxford, as in all of England (I have been informed), cars are required to stop only at elaborately constructed official zebra-striped crosswalks with huge flashing lights overhead. Because of the elaborate construction these are rare, and even so are often ignored. And I can certainly count on the fingers of one hand the number of times in five years that any driver has stopped to let me cross the street as a pedestrian when it was not strictly required by law. It didn’t matter if it was snowing or pouring rain and I was out walking with a small child. In Berkeley I was more likely to be embarrassed by a car stopping for me to cross when I was merely loitering near to the crosswalk.

The Home Office strikes back

The UK government has been aggressively defending its decision to interrogate Glenn Greenwald’s partner David Miranda for his links to Edward Snowden’s purloined NSA files. The Guardian reports

A Home Office spokesperson said: “The government and the police have a duty to protect the public and our national security. If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.”

Notably lacking from this utilitarian justification is a legal justification. As I remarked here, schedule 7 of the Terrorism Act 2000, which they seem to be using as their legal framework, interrogation is permitted only to determine whether the person is a terrorist, where a “terrorist” is specifically defined as a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

Absent from this list is “possessing information that would help terrorism”. The rest is just a smear, and the insinuation of what the journalists are “condoning” is just disgusting, reminiscent of the “fellow traveller” smears of the 50s.

Post-Newtonian politics, or, Psychopathology and national security

A short addendum to the comment about the seemingly counter-productive tactics of the US and European security apparatus in its attack on everyone involved in the Snowden NSA-document affair. Inspired by remarks of John Quiggin, I observed that we can’t understand what is happening when we view the state as a unitary goal-directed entity. Much of what is going on now can only be interpreted as eruptions of an internal power struggle, where the security services feel threatened, and are throwing their weight around.

Talking about throwing weight around puts one in mind of celestial mechanics. Under most circumstances we can consider planets as being simple objects, a mass located at a single point, the so-called centre of mass, whose motion is defined by a single momentum vector. It is only when we look at the fine structure, long-term behaviour, or extreme events that we need to consider the internal disposition of the mass. So it is with governments, that we may incline to see as unitary objects moved by the single will of the president or prime minister. Of course, political theorists and historians know that even the most extreme dictatorship has factions and power structures that shape the master’s will.

The analogy has been applied to the philosophy of mind. Two decades ago Philosopher Daniel Dennett introduced the definition of the self as a “center of narrative gravity”. We have intuitive models of human psychology that work, like Newton’s Laws, to predict people’s behaviour without reference to their complex inner life. Thus, if I arrange to meet you at a restaurant at 6, it suffices for me to have a few high-level beliefs about you — you want to see me, you know where the restaurant is, you have a watch — to predict that you will be there at about 6. I don’t need to concern myself with your inner life, and, in fact, for me to do so would be intrusive. It is only when behaviour becomes pathological that the unitary self loses traction.

Similarly, the pathological outbursts of the security apparatus (calling them “services” suggest that they are serving someone other than themselves, which is doubtful) force us to consider the complex power relations between government institutions.

We need to turn to some unemployed old kremlinologists to understand our own governments.

Observations on the Terrorism Act 2000 [Updated]

Despite the incredibly broad powers granted to the police by the infamous section 7 of the Terrorism Act 2000, British police seem to have managed to overstepped their authority in detaining David Miranda. They don’t need any reasonable suspicion of anything, but their actions may only be directed toward determining whether the person is a terrorist.

I’m no legal expert, but I looked at the official text of the law, and found that the paragraph of the infamous schedule 7 on “power to stop, question, and detain” begins by confining the power to a single purpose

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

That paragraph, defining the people subject to detention under this act:

40 1) In this Part “terrorist” means a person who—

(b)is or has been concerned in the commission, preparation or instigation of acts of terrorism.

And yet, reports on the questioning of David Miranda say that they were not directed at linking him to any acts of terrorism, past or future:

The questions, [Miranda] said, were relentless – about Greenwald, Snowden, Poitras and a host of other apparently random subjects.

“They even asked me about the protests in Brazil, why people were unhappy and who I knew in the government,” said Miranda.

Note that the law seems (to the untrained eye) extremely specific about the permissible purpose of the detention and questioning. It is only for the purpose of determining if the person is a terrorist. Will the lawbreakers be brought to justice? Do we have to ask?

[Update 20 August, 4:30 pm] Joshua Foust has argued that, while the UK interrogation of David Miranda was regrettably extensive, they were probably legal under the Terrorism Act. I think he is confused here (though certainly I may be the one who is confused) about the distinction between the right of the police to detain someone. According to the Act,

An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

So there is no question that they had the right to detain him, since they have the right to detain anyone at all. What is at issue is their goal, as expressed in their actions during the interrogation. So, while they don’t need any reason to think the person is a terrorist, in fact don’t even need to think that they are, and could interrogate people chosen at random, they can only do so, as stated in the section of the Act quoted above, “for the purpose of determining whether he appears to be” a terrorist. Foust suggests that threatening to expose GCHQ could count as terrorism, under the portion of the definition that includes activity that “is designed seriously to interfere with or seriously to disrupt an electronic system.” That sounds pretty far-fetched to me, but it is in keeping with the pattern that we have seen, where security officials demand sweeping powers, codified in vaguely formulated laws, and then proceed to push the boundaries of even those laws and reinterpret them (secretly) beyond all recognition.

It’s a bit like firing an employee in the US: You don’t have to have any reason, but you can’t have an illegal reason. It can be because you have indigestion, or because an angel told you to fire her, or because she’s too beautiful, but it can’t be because her skin colour clashes with your wallpaper or she’s pregnant or is in a wheelchair. And evidence for your illegal reasons are not just your explanation of the firing (or lack thereof) but other comments and actions surrounding it.

Crypto-fascism?

The word “crypto-fascist” is one of those old-left words whose day has past. In its old meaning — a right-wing authoritarian (fascist) who conceals his true views (crypto, presumably on the uncomfortable model of crypto-Catholics) — has no currency. I propose, then, that this evocative collection of phonemes be repurposed for current circumstances, to mean

Cryptological fascism. The creeping co-optation of democratic states by the cryptographer class; the authoritarian impulse arising from the déformation professionelle of professional cryptographers.

I think that after the Cameron government decided to retaliate against the family of journalist Glenn Greenwald, either for his insolence in daring to embarrass GCHQ, or at the behest of the US for embarrassing their real masters in the NSA, there can be no question that the “someday” when government surveillance and secrecy might undermine democracy is now. Secrets inevitably corrupt human relations,. The vast industry devoted to secrets has created a society within our society that cannot but hold the rest of us in contempt, even as they claim — and probably even believe — that everything they do is for our good.  That is crypto-fascism. The impulse hasn’t changed, but the power balance has been shifted massively by new technologies.

A recent blog post by economist John Quiggin reminded me of an important perspective that is easily missed, when we talk of “the US government” or “the UK government” as though they were unitary entities. He writes

It’s hard to see what kind of power can protect the security apparatus now that it is operating, to some extent in the harsh light of day. In the Snowden matter alone, the security state has trashed relations with Russia, China, and most of Latin America, as well as gravely embarrassing its UK and EU client agencies, and yet they are further than ever from getting their man… At some point, surely this must become a political liability too costly to carry.

Much of the seemingly insane thrashing of the UK and US security apparatus is surely directed internally as much as externally. They are making their legal case and their utilitarian case to the parliamentarians, for sure, most of it behind closed doors, but they are also making their we’re-crazy-as-fuck-don’t-mess-with-us play, much of which by its nature must happen in public. (Because the foolishness wastefulness of the public display is what makes the crazy convincing. It’s the handicap principle, with clandestine agencies in the role of stotting gazelles.)

And that’s exactly the argument that I made before, the danger that Obama — convinced of his own rectitude — cannot even acknowledge: The main danger of this universal surveillance is not the way it will be used to target private citizens, though that is terrible enough (and it has already begun, in the case of David Miranda). It is the way it will be used to wage power struggles within democratic government, using private information against political opponents. The question is not if it will happen, but only when.