Guesswork is Not Good Enough

The true effectiveness of mass surveillance is hard to determine without evidence

Although the legal challenge against the Safe Harbour Agreement was successful in Europe, on the other side of the Atlantic, not all the lawsuits against the US government, so far, have been successful. In Clapper v Amnesty International, the court found that the attorney’s, human rights organisations and others who were challenging US government surveillance, lacked standing in their arguments due to the speculativeness of them. These ‘Respondents’ believed that there was a reasonable likelihood that they were being spied on by the government. Furthermore, as a result of apparently being spied on, these respondents had to take on burdensome measures to avoid the NSA’s surveillance and maintain the confidentiality of their communications with third parties around the world.

The court, however, found this argument to be faulty. To begin with, since the particular surveillance program in question did not focus on targeting US persons, of which the respondents were, their argument assumes that their contacts in foreign countries had been targeted or will be. Secondly, the government must seek approval from FISC before being able to conduct its surveillance, which is not always certain. Furthermore, even with a judicial order, the government cannot guarantee that it will be successful in intercepting the communications of the respondents’ foreign contacts. The introduction of end-to-end encryption on all communications made on WhatsApp, for example, can make it difficult for the NSA to obtain the information it needs. Plus, the interception of the communications of foreign contacts does not necessarily mean that the respondents’ communications will also be incidentally snooped.

Their other main argument was also found to be faulty. The respondents in the case claimed that the risk of being spied on caused them to take on costly measures to avoid surveillance. But the court established that this lacked standing because this argument is based on the hypothetical notion that they were being spied on in the first place, or at least could be in the future, and therefore may have to take on the so-called burdensome measures to avoid such surveillance.

It is important to note, though, that despite this unsuccessful challenge against the NSA in Clapper, this court case took place before the Snowden revelations. Thus, had the court case been conducted after the revelations, the respondents may have been able to strengthen their argument by utilising substantial evidence from the leaks provided by Mr Snowden to show that themselves, as well as their foreign contacts, were indeed being spied on. The injury they may have suffered as a result may have also been more plausible.

But other speculative arguments against the NSA have also proven fallacious. Some have claimed that there is no evidence to suggest that the bulk collection and interception activities conducted by the NSA have helped to stop or disrupt terrorist attacks, or that it has provided law enforcement with valuable information which has led successfully to identifying terrorists in the US or elsewhere in the world. On the face of it, this argument seems logical; if the mass surveillance of the NSA does not actually help the agency to achieve what it says the programs are designed to achieve, then it is not worth the infringements on privacy to have them continue. However, the claim that there is no evidence is highly speculative. During his testimony in ACLU v Clapper, General Alexander, the former director of the NSA, said that the surveillance programs had in the past prevented a number of terrorist attacks. However when questioned about this later, the number then dwindled from 54 worldwide to a much lower figure, but justified this by claiming that he had misinterpreted the question asked in terms of which program he was being asked about. He implied that, depending on which program in question, the numbers may vary.

But overall there remains much speculation about what that number actually is. The NSA works in secret; all the operations and tasks it is involved with are classified and the majority of which is not known to the public. Only those inside the NSA will know exactly the number of terrorist attacks which have been stopped due to the information provided by the electronic surveillance programs. It is unlikely that any of this information would become openly available to the public, barring a leak or a whistleblower. Thus, nobody, besides NSA officials, and perhaps those in the US Cyber Command, knows for certain whether mass surveillance has actually foiled any terrorist attacks. But not knowing if there is evidence is different from there not actually being any evidence. Thus, the assumption that the NSA’s activities do not prevent terrorist attacks is suppositional, to say the least.

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