In one year, both Keith Alexander and James Clapper will likely retire. Alexander and Clapper are the two men most responsible for the mass surveillance perpetrated by the NSA and officially made public by Edward Snowden; they have a troubled legacy to look forward to. The documents and testimony that have emerged from the saga have made appeals to national security but merely appear spurious–there have been more former lovers spied on than terrorist attacks stymied while reminding the world why an unchecked superpower is dangerous to the world regardless of who it claims as an ally.

Image courtesy of Tucker Higgins, © 2013.

Image courtesy of Tucker Higgins, © 2013.

Unfortunately, it is unclear if anything will change when the dust settles. Since the conversation on NSA spying continues to be defined by the most recent leak, it has a tendency to shift dramatically in a short amount of time. When the leaks began over the summer, it was the government’s interception of social media traffic and phone data that gained notoriety. On October 26, when a group of several thousand protesters met at Union Station under the aegis of the “Stop Watching Us” coalition, the revelation that German Chancellor Angela Merkel’s personal cellphone had been tapped was the most recent news. And, today, it is not first order issues of government programs but instead second order problems the effect of the revelations on foreign policy that seem to be gaining the most traction.

While these revelations have spilled out, the Obama administration has made clumsy attempts at addressing each leak as it springs up. By the end of the circus, there will be many promises made and hopefully a bill or two passed. However, unless the conversation starts to address the leaks as one unified problem and one that is in no way new there will be no real solution.

The larger problem looming behind the current leaks is that we are engaged in an arms race with an unclear enemy. In his book “The Watchers,” Shane Harris traces the start of the arms race to the suicide bombing in Beirut in 1983 that killed nearly three hundred marines. After 1983, it was Admiral John Poindexter who would later gain infamy as the highest ranked official indicted for the Iran-Contra affair who revolutionized the way Americans collected intelligence from his position in the Crisis Pre-Planning Group.  In response to the attack in Lebanon, America’s attempt to use technology as a weapon against terrorism began in earnest.

This pattern of violence begetting increased surveillance did not end in the 80s but increased rapidly, only occasionally set back by the perfervid but short-lived critiques of privacy advocates.  Indeed, much of the surveillance conducted by the government in the wake of the Beirut attack–techniques we recognize today like email sweeps and the collection of meta-data–was debated hotly on the floor of Congress in the late 1990s.  However, the debate occurred only a few years before September 11, 2001, when once again America was distracted from the idea of too much data in the hands of government.

After 2001, John Poindexter returned to the scene with an idea: it was called “Total Information Awareness.” Total Information Awareness, which Poindexter dubbed “A Manhattan Project for Counterterrorism” in his PowerPoint presentation to the head of DARPA, was designed to do precisely what it sounds like, gleaning information like academic grades, phone calls, ATM withdrawals and emails. This program, though killed in its earlier form by a leak and negative publicity, didn’t die completely; instead it metamorphosed into the programs we continue to learn about through Edward Snowden.

Today in leaked documents we see the remnants of Poindexter’s early programs amplified to exponential levels. Despite repeated and occasionally successful attempts by privacy advocates to put laws on the books, there has been no substantial impact at all on the way the government has conducted its business. For this reason, we must begin to address mass surveillance as a longstanding problem that has lasted through many presidential administrations and that will not be stopped as long as the terms of the debate are allowed to remain as they are.

First we must stop thinking about mass surveillance as a potential problem, or a problem waiting to happen if the government ever got out of control. The truth is that whenever this technology is invented, it is used, including by governments with weaker human rights records than the United States. James Bamford, speaking about programs devised in the 1990s, writes that the mass surveillance “systems were sold to whoever would buy them, including some of the most oppressive and authoritarian governments on the planet.” He mentions that it is not unheard of to be dragged out of an internet café in Vietnam (one governmental purchaser of mass surveillance equipment) for looking at the wrong pro-democracy web site.

The second idea that must change is that the spread of these programs is inevitable and that privacy is already dead. The spread is not inevitable: arms races have ended before.  Weapons deemed unethical in any circumstance, like chemical weapons, have been barred, never to be used again legitimately. These prohibitions were the results of new thinking and agreements at the international level. This international model is the one we must look at when dealing with mass surveillance law.

“When a 29-year-old can decide for his- or herself whether to divulge state secrets, that’s a recipe for chaos”

– Robert Gates, former defense secretary, October 24, Williamsburg, Virginia

“My advice to future leakers is this: First you must never trust the chain of command. The chain is there only to choke you. And then you must learn to beat the polygraph”

 – Russ Tice, NSA-whistleblower, October 26, Washington D.C.

 

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This article was first printed in the Foreign Affairs Review Magazine, January edition.