This is a fantastic example of how to conduct an academic discussion of a really contentious subject. It brings together academics and NSA people to talk calmly about what’s happened and what it means. The participants are Yochai Benkler, Bruce Schneier, and Jonathan Zittrain of the Berkman Center and John DeLong and Anne Neuberger of the National Security Agency. The conversation is expertly moderated by the Berkman Faculty Director Terry Fisher.

It runs for 90 minutes, but is really worth it. So book some time off and watch.

Some thoughts triggered by it, in no particular order…

1. Tempting thought it might be, I see little point in demonising the agencies (NSA/GCHQ). Most of the people who work in them are conscientious officials engaged on a mission which they believe to be important and necessary. One interesting aspect of the Snowden revelations is that they contain few, if any, horror stories of “bad apples” or corrupt officials abusing their powers. This doesn’t mean that such scandals don’t exist, but my hunch is that this is very different from, say, what went on in MI5 and the CIA during the Kennedy/Nixon/Reagan eras.
2. The discussion so far has focussed too much on the details or the surveillance programs, and not enough on what the existence of such programs means for society and democracy.
3. ‘Oversight’ has been interpreted as checking that the agencies strictly adhere to the rules that have been set for them by legislation and executive order. It seems clear already that much of this oversight has been inadequate and flawed. But there has been very little discussion of democratic oversight of the rule-making process itself. It is important, of course, to ensure that rules set by Parliament or Congress are being obeyed at the execution level. But what is equally important – and thus far under-discussed – is whether the rules that have been created by politicians are themselves wise, effective and proportionate. There is little comfort to be derived from government assurances that everything done by NSA/GCHQ is “lawful” if the laws themselves are flawed.
4. There is an important difference between espionage and bulk surveillance: the former is directed or targeted; the latter is generalised and indiscriminate.
5. In a way, the agencies were set an impossible task by politicians in the aftermath of 9/11. “Never again” was both the letter and the spirit of the injunction. Societies must never again be vulnerable to the terrible things that terrorists might dream up and conspire about. Charged with this terrible responsibility the agencies attempted to forewarn against any conceivable threat, and the only way they could invent to do that involved the kind of comprehensive surveillance that Snowden reveals. What we don’t know – yet – is whether the agencies were actually doing this kind of surveillance before 9/11, in which case there would be some further awkward questions to be asked.
6. The “war on terror” proved to be a really pernicious ploy. A state of war implies an existential threat to the nation, which justifies and legitimates very drastic measures. Between 1939 and 1945, for example, Britain was effectively a totalitarian state, and all kinds of civil liberties were drastically curtailed and infringed; but the citizenry grudgingly or willingly accepted these conditions because they understood the existential threat. But the “war on terror” is not a war in that sense; it’s merely a rhetorical device. it did, however provide ideological – and in some cases legal – cover for massive extensions of intrusive surveillance.
7. Secrecy is always a tricky concept for democracies Because, on the one hand, democracy requires openness and publicity (to ensure that citizens can give their consent to what is being done in their name by state actors); but at the same time, democracies may legitimately need to engage in some activities which have to be kept secret. In some cases, secrecy is legitimate: in 1963, for example, the Cuban missile crisis was resolved by President Kennedy’s decision to offer the prospect of withdrawal of American missiles based in Turkey in return for a Soviet decision to withdraw their missiles from Cuba. This offer was kept secret from the American public for the very good reason that if it had been made public then it might have undermined congressional and public support for the president’s handling of the crisis.
8. Democracies therefore are always trying to strike a balance between openness and secrecy. This can be a very hard balance to strike, so not surprisingly democracies tend to fudge the issue by offering to lift the veil of secrecy just far enough to provide a semblance of accountability. One of the things we have learned from the Snowdon affair is how threadbare this semblance is. What we have, as one shrewd commentator observed, is not real oversight but “oversight theatre”.
9. A useful way to conceptualise the problem is to imagine a horizontal line. Activities above the line – for example legislative rule-making – take place in public. This is where policy is formed. Below the line is the area of policy execution by the agencies, and is hidden from the public.
10. It would be naive to assume that the agencies confine themselves just to execution. They may sometimes be active above the line – for example in framing legislation which meets their needs but which is couched in terms that conceal from an ignorant public and a complacent or incompetent legislature the real import of the legislation. This process has been especially visible since 9/11. In that context, it’s interesting that the legislator who co-authored the Patriot Act has publicly declared his dismay at discovering (pace Snowden) what his statute has supposedly authorised. And in Britain it’s clear that directors of security organisations can play an important role in framing legislation.
11. In Britain there is a deeply-ingrained tradition of political deference to the security services. This could be because Britain is a society that is more hierarchical and deferential than most. Or it could be that sentiment rules: GCHQ, for example, is seen as the spiritual heir of the wartime Bletchley Park codebreakers, and thus rides on their heroic coat-tails. Whatever the explanation, there are suspicions that budgetary and other proposals from senior security officials receive more favourable treatment in Whitehall than do comparable demands from “civilian” departments. One former senior member of the Blair government told me that in all his time in the Cabinet he could not recall a single instance in which a request from MI5/MI6/GCHQ was turned down by Tony Blair.
12. Politicians in most Western democracies – including the United States and United Kingdom – are astonishingly ignorant about the capabilities and potential of computing and communication technologies. The proposition that such politicians might be capable of maintaining effective ‘oversight’ of technologically-adept agencies is implausible.
13. Allied to politicians’ technological ignorance is the fact that “hacker culture” is an entirely alien world to them. This is important in considering the possibility of “mission creep” by surveillance agencies which are staffed by large numbers of talented software engineers. The Snowdon revelations include a few examples of what programmers call “cool hacks” which are indicative of technological exuberance and associated mission creep.
14. Even if we except that the NSA has strictly adhered to the rules laid down by Congress, there is the problem that some of the activities revealed by Snowdon are nowhere mentioned in the rules. Congress, for example, did not mandate that the RSA encryption which supposedly secures the bulk of the commerce transactions on the open Internet should be covertly compromised by the agency. Nor did Congress mandate that the NSA should approach Microsoft after it acquired Skype with the demand/request that the technology should be modified in order to facilitate surveillance of VoIP communications.
15. One of the most perplexing aspects of the whole surveillance question is why citizens of some of the most-surveilled societies seem relatively relaxed about it. There are, of course, cultural differences at work here – Germans, for example, seem to much more concerned about the Snowdon revelations than are Britons.
16. The Snowdon revelations demonstrate the extent to which what one might call the National Surveillance State is a public-private enterprise. In a sense the state has covertly outsourced some of the surveillance to major Internet companies and telecommunications organisations. This is hardly surprising given that the core business of both the NSA/GCHQ and the Internet giants (Google, Yahoo, Facebook, Microsoft) is intensive, detailed, comprehensive surveillance. The only real difference is that the companies claim it is being done with the consent of their users – as registered by their acceptance of the terms and conditions imposed by corporate EULAs (End User Licence Agreements).
17. One strange aspect of the whole business is the way the US government appeared unaware to the threat that exposure of NSA activities would pose to the country’s big technology companies. It’s inconceivable that policy makers would not have considered the damage that exposure would do. Or is it? Was it just that (see earlier comment about the cluelessness of politicians in this area) that the risk never crossed what might loosely be called their minds?
18. The biggest question of all — and the one least discussed – is whether the kind of comprehensive surveillance revealed by Snowden and other whistleblowers is compatible with any meaningful conception of democracy.