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Cybersurveillance: We Put the Law on Our Side, Part 2

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Black code: Inside the Battle for Cyberspace, by Ronald J. Deibert; 2013, McClelland & Stewart.

In 2004, 18 months after the invasion of Iraq, I was sitting in my Unconventional Weapons Technology class, part of the Security Studies program at Georgetown University. Our professor arrived a few minutes late to announce that the Iraq Survey Group had come up empty-handed, testifying that day in Congress that it had conclusively determined that Iraq had not produced or stockpiled any weapons of mass destruction since at least 1991. There was a pause. Then one of my fellow freethinking graduate students piped up: "So I don't get it. Where are the WMD?"
"There never were any," said the professor. "Not in the last twelve years, at least."
"What, so you're saying they're maybe buried somewhere? Or maybe Saddam moved them to Syria?"

The problem with the vox populi statement "The government can look at my e-mail -- I ain't done nothing wrong" -- besides the sin of the double-negative -- is that the speaker doesn't actually know what the standard of naughty or nice is, because that has yet to be revealed or promulgated. Instead, citizens have issued a corporate credit card with no spending limit, placing almost complete faith in higher authorities, belief in guardian angels and the tooth fairy, that their iPhone is a magic wand, provided the government can keep the monster under the bed exactly where it is. In this scenario, every time a terrorist plot is uncovered another angel gets its wings. You, the public, may hear a little bell ring.

The legal case, to quote the eminent jurist Robin Thicke, is one of 'blurred lines.' The 4th amendment prohibits 'unreasonable searches and seizures,' which seems like a good thing, even if it doesn't cover the part of the world beyond CONUS. The legal case is evolving. From Shane Harris's Sept. 9, 2013 article on ForeignPolicy.com, concerning NSA director Gen. Keith Alexander: ""He said at one point that a lot of things aren't clearly legal, but that doesn't make them illegal," says a former military intelligence officer who served under Alexander at INSCOM."

Like conventional martial law, this Undeclared Informational Martial Law is necessary but temporary, needed to ensure stability and security. In this case, it will only last as long as the GWOT does.

The apparatus has established several years of precedence and protocols in its favour. But Deibert notes that the system leaves itself open to abuses or misuses of power, depending on who is in power. Obviously there's nothing (ahem) to be worried about with a Nobel Peace Prize winner as the incumbent President. Interestingly, both Obama and now FISA judge Dennis Saylor somewhat disingenuously 'welcome' the debate that Snowden release of classified documents has caused. Much like the Catholic Church and Holy Roman Empire 'welcomed' the dialogue of Galileo or Martin Luther. Instead of the Edict of Worms, Snowden will likely be rewarded for his conversation-starter with a stint at Leavenworth. Meanwhile, the Greens party in the European Parliament has nominated him (Snowden) for the Sakharov Prize for freedom of thought.

Those on the left likely won't mind if President HRC is eventually Commander-in-Chief, and will be prepared to ignore that just two years ago, while Secretary of State, she was proclaiming the U.S. the ambassador of the Internet Freedom Agenda. Likewise, the right might not mind if in 2016 Rand Paul or Marco Rubio or Liz Cheney becomes the national security cybersurveillance ringmaster.

From Deibert's perspective, positive change will come from the efforts of policymakers committed to transparency, computer engineers and advocates like Bruce Schneier, and international organizations like the Global Network Initiative, which counts Facebook and Google among its members.

Black Code is a telling string of anecdotes, assessments and opinions. For example, Citizen Lab's documenting of Chinese attacks on the Indian government's equivalent agency to the NSA, Indian military intelligence and the embassy in Washington. Still with China, the Lab, at the invitation of the Office of His Holiness the Dalai Lama, wiretapped the computers of the Tibetan government-in-exile and essentially hacked the hackers, laying out in detail and in real-time what documents the Chinese were stealing, and where they were being sent.

The title of Ron Deibert's is a bit of a recycling job. He first used "Black Code" as the title of a 2002 article, then "Black Code Redux" as his chapter in 2008's Digital Media and Democracy (MIT Press). He maintains that the core theses of his earlier works have remained near-constant and if anything, more relevant. 2007-2008 were critical years for the technology though: going through the Digital Media index, I find just three entries for Facebook, two for "SMS (Short Message Service, or text messaging)". This in a 435-page book about new media. Not a single mention of Twitter, Instagram, Pinterest, Siri, crowdsourcing, Candy Crush or Christian Mingle. For his part, Deibert believes the biggest technological impact on the world since that time has been the growth of social media, cloud computing and mobile.

The Citizen Lab works out of a sunlit, exposed-brick, freshly-renovated historic building on downtown Toronto's upscale Bloor Street. Besides the 20 permanent staff, there's another two-dozen post-doc fellows and grad students, as well as researchers worldwide. They hail from a range of disciplines, combining technical and programming skills with forensic methods, at what he calls "the intersection of ICTs, human rights and global security." Deibert refuses any government's funding and relies instead solely on foundation grants. Early on they developed circumvention tools like Psiphon, to aid dissidents in totalitarian countries. Deibert sees his focus for the next few years being to build more capacity inside target countries. Thematically, he also sees the Lab moving from researching free expression towards cracking government-industry surveillance, offensive cyberwarfare, and Western companies supporting censorship abroad.

This means the Lab keeps close tabs on the SEA, as well as publishing recent reports on a company based in Montreal hosting servers for Syrian TV and al-Manar, the broadcasting organ of Hezbollah. The Lab worked with a Pakistani Internet advocacy NGO to make the link between the Pakistani government and a Canadian web filtering firm, Netsweeper. They discovered that, at the request of the central government, Pakistan's largest telco and ISP had installed Netsweeper filtering technology to block content related to human rights or independent media, and whole URLs of sites dealing with political autonomy issues, or (like Facebook) deemed by the authorities to contain blasphemous content.

In the West, there would likely be popular heartburn if the government were physically barging into your house to steal your hard-drive, steaming open your Gmail chat, if Stasi officer Gerd Wiesler had moved into the attic upstairs and had the big headphones on not to listen to Daft Punk, but to your AT&T call.

Deibert has an assessment and some advice for individuals:

There's a sleepwalking into this issue that's taking place. We're constantly secreting digital information, and the information is separated from us, and leaves traces. Most people don't know what happens to their communications. But all that information is stored and archived, it never really disappears, but sits there somewhere, waiting to be mined, with scores of companies involved. So don't take the technology around you for granted. Learn what happens beneath the surface, inside the technology in your hands.