WORLDPOST

Check NSA Surveillance with Citizen "Sous-veillance" -- Monitoring From Below

02/03/2014 04:48 pm ET | Updated Nov 26, 2014

David Brin is a scientist and author. His new novel about our survival in the near future is titled "Existence." His 16 novels, including New York Times best-sellers and Hugo Award winners, have been translated into more than twenty languages. Brin appears frequently on shows such as Nova and The Universe and Life After People, speaking about science and future trends. His non-fiction book -- The Transparent Society: Will Technology Make Us Choose Between Freedom and Privacy? -- won the Freedom of Speech Award of the American Library Association. Davidbrin.com.

Hoping to mollify public resentment -- and anger from allied governments -- President Obama recently offered a series of reforms to curb the "see-everything nosiness" of the U.S. intelligence community. Typically, Mr. Obama took a middle path, aiming to rebuild citizen trust in America's Professional Protector Caste (PPC) -- a.k.a. the National Security Agency and its intelligence counterparts -- while retaining its power to sniff almost anywhere for danger. Much of the press and punditry have portrayed this as a tradeoff between two contradictory and incompatible things: security vs. freedom.

But is that tradeoff essential? Is there a way to accomplish the miracle of a win-win? Is there a positive-sum outcome that enhances both public safety and liberty?

"We should decide to let our watchdogs see -- technology makes it inevitable anyway -- but also keep our own eyes on them, so we can always yank the leash and remind Fido who is boss. In this way we can have both freedom and safety."

Before appraising the president's proposals, consider that this backlash against snooping was all fated to happen, with or without Edward Snowden. A natural rhythm follows any traumatic event, like the 9/11 terror attacks. First, a frightened citizenry hands over any powers the "PPC" claims to need, in order to staunch future threats. Later, as passions fade, people fret, "did we grant too much?" There is talk of turning back the ratchet, lest our watchdogs start thinking like wolves.

Much of America was ready for this conversation a decade ago. Just two years after 9/11, headlines churned over "Total Information Awareness" or TIA. That program aimed to analyze phone traffic, decrypt foreign communications and sift the world's farthest electronic corners for signs of danger. Sound familiar? Amid public outrage, we were told that TIA had been banished. Only, was it?

Hold that thought, as we ponder recommendations made by President Obama's NSA commission -- 46 proposals falling into three general categories.

NOT LOOKING AT EVERYTHING

Some would limit what the NSA and other agencies are allowed to see. By presidential order or through new legislation, agencies will parse more carefully between communications originating from a foreign source and those involving U.S. citizens. They'll be asked to excise most information accidentally gleaned from citizens without a court order. Special (though vague) procedures will safeguard communications of friendly foreign leaders. The NSA also promises to limit the number of "hops" or degrees of separation it will trace, during traffic analysis. In each case, we must accept on face value its promise not to look.

FOLLOWING STRICTER PROCEDURES

Other proposals would raise procedural hoops, such as defining more carefully when the FBI may issue national security letters compelling companies to hand over customer communications data. President Obama dropped the notion of requiring court orders, but he does raise the bar a bit. The most significant measure would forbid agencies storing phone records themselves. These would be cached elsewhere, at first by the carriers, then with a separate custodian. The NSA would face a low bar in asking to look, but it'd have to ask.

ACTUAL SUPERVISION

The final category increases transparency and accountability. For example, an ombudsman representative or privacy advocate would be appointed to the U.S. Foreign Intelligence Surveillance Court (FISC/FISA), making it adversarial, as a "court" should be. And national security letters will no longer come with permanent gag orders, except in critical cases, cell-companies and ISPs could publish general statistics about how much data was demanded -- crucial transparency, if citizens are to continue this discussion.

Even if these reforms are implemented earnestly, in categories one and two they are meant primarily to assuage. Can we really expect to blind elites over the long run? As in the game Whack-a-Mole, when you slam down TIA, it reappears as the NSA. And when you forbid the NSA some surveillance method, it will only reemerge with something cryptic elsewhere, harder to detect. PPC members do not presently view themselves as Orwellian monsters, but as sincere professionals earnestly sifting the world for danger. So when they evade restrictions, they'll rationalize that it's for the greater good.

WHAT GOVERNMENT KNOWS VS. WHAT IT DOES

We should ask which is more important: what government knows, or what it might do to us? Intrinsically, you can never be certain what elites see or know. But actions can be observed and held accountable, by insisting that all watchers be supervised, answering top-down surveillance with "sousveillance," the habit of a brash citizenry monitoring from below. Only category three seeks this precious win-win: preserving both freedom and safety.

" Actions can be observed and held accountable, by insisting that all watchers be supervised, answering top-down surveillance with "sousveillance," the habit of a brash citizenry monitoring from below."

We can start bolstering this category by insisting that FISC be a real court with more than just one public advocate, (who might be suborned). Demand a dozen or more ombudsmen! Though discreetly security cleared, let them be appointed by a diverse array of genuinely adversarial stakeholders, like the ACLU.

In fact, that's not enough supervision. So let's gather the inspectors general from every governmental agency -- who are now scattered and trapped by conflict of interest -- into a vigorously independent inspectorate corps, of the sort originally conceived by Sun Yat-Sen in 1910 to monitor corruption in his design for government. And there are many other ways to augment supervision while maintaining discretion and tactical secrecy.

Instead of railing against that fact that there will be more Edward Snowdens, let's revamp whistleblower laws, in order to encourage in-house correction of bureaucratic errors. This would also let us calibrate where future Snowdens fall in the wide range from traitor to hero.

Would these augmentations of skeptical supervision irk the PPC? Sure. But the pros might get something precious in return: our trust.

Sousveillance isn't just a response to surveillance, it is the wellspring of freedom. In the century's most important civil liberties news (so far), both courts and the Obama Administration recently proclaimed it "settled law" that U.S. citizens may record their interactions with police, establishing our authority to supervise where it matters most -- on the streets.

The lesson? Today's reflex is to shout at the PPC "don't look!" But if it obeys, it may hamper its jobs. And if it disobeys, how will we know?

Instead, we might decide to let our watchdogs see -- technology makes it inevitable anyway -- but also keep our own eyes on them, so we can always yank the leash and remind Fido who is boss.