Thoughts on the Implications of ‘Secret Surveillance’

In one of Michael Geist’s recent articles on secret surveillance he notes three key issues with the secretive intelligence surveillance actions that are coming to light. Specifically:

First, the element of trust has been severely compromised. Supporters of the current Internet governance model frequently pointed to Internet surveillance and the lack of accountability within countries like China and Russia as evidence of the danger of a UN-led model. With the public now aware of the creation of a massive, secret U.S.-backed Internet surveillance program, the U.S. has ceded the moral high ground on the issue.

This has been a point that academics have warned about for the past decade: when/if it is apparent that the US and other Western governments aren’t ‘fit to govern’ critical Internet infrastructure then foreign states will increasingly agitate to influence network design. Still, while the US government’s mass surveillance systems may accelerate the rate at which governments are ‘interested’ in critical infrastructure design and deployment, this isn’t a novel path or direction: governments throughout the world have been extending their surveillance capacities, often pointing to the US’ previously disclosed behaviours as justifications. The consequence of the recent high-profile articles on NSA surveillance has been to (arguably) ensure that a ‘moral high ground’ cannot be reclaimed; arguably, that ground has actually been lost for quite some time.

Geist continues:

Second, as the scope of the surveillance becomes increasingly clear, many countries are likely to opt for a balkanized Internet in which they do not trust other countries with the security or privacy of their networked communications. This could lead to new laws requiring companies to store their information domestically to counter surveillance of the data as it crosses borders or resides on computer servers located in the U.S. In fact, some may go further by resisting the interoperability of the Internet that we now take for granted.

Again, we’ve been seeing these kinds of law crop up for the past many years. However, the countries that have been engaging in such actions are all (generally) regarded as ‘foreign’ by individuals in North America. So, when Iran, India, China, or other countries have imposed localization laws those nations are seen as ‘rogue’; missing from much of the critique, however, has been how ‘domestic’ governments have sought to contain or delimit the flow of information. Admittedly, most of Canada, the UK, and America lacks ‘data localization’ laws, but all of those jurisdictions do have ‘data limitation’ laws, insofar as some information is blocked at an ISP level. In effect, while a hardware balkanization of the Internet might accelerate, the content balkanization of the Internet has been ongoing for over a decade.

Geist concludes:

Third, some of those same countries may demand similar levels of access to personal information from the Internet giants. This could create a “privacy race to the bottom”, where governments around the world create parallel surveillance programs, ensuring that online privacy and co-operative Internet governance is a thing of the past.

This is an area that will be particularly interesting to watch for. In terms of content localization, there are laws around the world limiting what citizens in various nations can access. While such localization laws were initially seen as heralding the end of the Internet this has not been the case: save for in particularly censorious regimes, local norms have guided what should(n’t) be accessible (e.g. child pornography, nazi symbology and paraphernalia, etc). At issue is that efforts to ‘block’ certain content tends to often not work well, and also tends to reduce efforts to legally punish those responsible for the content in the first place. In effect, the former problem speaks to the limitations of blocking any content effectively and without accidental overreach, and the latter with poor international cooperation between policing agencies to actually act against the producers of obviously nefarious content (e.g. child pornography).

The ability for nations to demand strong data/server/service localization requirements will, I suspect, be predicated on economic size and relative ‘value’ of a nation’s citizens to a particular company. So, if you have a very large multinational, with ‘boots on the ground’ and a large subscriber base in a profitable nation-state, then the multinational may be more likely to comply with localization requirements compared to a similar demand from a small/economically insignificant state in which the company lacks ‘boots’. Moreover, the potential for certain services to no longer be accessible – say, GMail, if Google refused to comply with a given nations’ localization laws – could lead citizens to turn on their own government on the basis that the services are needed for ongoing, daily, commercial or personal activity.

In effect, I think that while Geist’s third point is arguably the most significant, it’s also the one that we’re furthest off from necessarily crossing over to. Admittedly there are some isolated cases of localization requirements now (e.g. India), but the ability to successfully impose such requirements is as much based on the attractiveness of a given market as anything else. So, there could actually be a division between the ‘localization countries’: ones that are ‘big enough’ to commercially demand compliance versus ones that are ‘too small’ to successfully impose their sovereign wills on Internet multinationals. How any such division were to line up, and the political and economic rationales for all involved, will be fascinating to watch, document, and explore in the coming years!