Law in the Internet Society

The Gilded Surveillance State: A Winning Model (for some)

-- By KirillLebedev - 24 Dec 2012

Two Approaches

The rise of digital technology has ensured that an ever increasing percentage of human interaction is done through the internet. In order to be successful, the modern surveillance state has adapted by shifting a large part of its efforts from human intelligence and traditional signals intelligence (phone tapping, radio transmissions) to the monitoring and control of networked data streams. This is evident when one considers the unprecedented expansion of the NSA and the ongoing construction of shadow projects presumably to be used for monitoring domestic data traffic. The explosive growth in information requests made to service providers by law enforcement only serves to underscore this point.

There appear to be two distinct models that are being used by states to define their approach to an increasingly digital world. One is the China approach, where government control of the Internet is overt. Firewalls are used to block unappealing sites, and censorship is used to control the expression of Chinese citizens. Chinese law expressly prohibits several types of expression that would clearly fall under First Amendment protections in the United States (e.g. “injuring the reputation of state organs”).

An alternative method is the one espoused in the U.S. Websites, regardless of their content, are generally accessible. Legal consequences for expression are far sparser, with prohibited categories being much narrower than those in Chinese law. Data is generally controlled and transmitted by non-state actors, and there are at least some legal mechanisms to protect the privacy of users.

Superficially, it would appear that the Chinese model is far superior. In this model, the government has much more explicit control over both consumption and dissemination of information through the internet. Furthermore, Chinese law demands that users “must accept the security, supervision, inspection, and guidance of the Public Security organization”, and provides no substantive means to protect privacy (requiring warrants, etc.). Discussing the plight of dissidents in repressive states is a popular pastime in the U.S., with even the government getting in on the action. Unfortunately for every American who does not have a stake in the U.S. surveillance state, it is us who have the superior system in terms of gathering information and controlling public discourse.

Why is this different than saying, the First Amendment exists in the US and not in China? What are you saying about the Net that isn't otherwise true of the two societies and their governments?

Why We’re “Better” Than Them

The U.S. strategy of electronic surveillance and control is able to extract any “positive” benefits of the Chinese system, while generating huge independent value from its lack of overt restrictions and outsourcing of spying to the private sector.

The U.S. has done well for itself by avoiding the overtly repressive measures that are a hallmark of the Chinese system. The Great Firewall of China does a poor job of restricting access to “undesirable” content. Any interested user is able to bypass the system with ease, ensuring that the firewall’s primary effect is to remind the internet-using public that its use of the internet is being monitored by the government. Similar criticisms apply to censorship of search results and social media sites. As shown by the closely analogous case of DRM, using technological measures to restrict access to information is generally a losing proposition.

In addition to not effectively controlling the dissemination of unwanted material, overtly repressive control measures push communication off of digital networks where it can be easily monitored, and into human networks which are harder to infiltrate (especially en masse). Furthermore, such measures enlighten the populace to the repressive nature of their rulers, and may easily create more dissent than is suppressed by the ineffective control measures.

As has been discussed at length in class, the use of Gmail, Facebook, and other similar services by informed consumers is somewhat paradoxical. The net cost of services rendered by Google is very low, and nobody would agree to allow their e-mail to be read and catalogued by a third-party in exchange for that same sum of money. At the same time, even students in our class (unfortunately I am not without blame, even though I hope to improve with time) are willing to hurl their private information at parties which have no qualms about sharing that information with the government and other actors.

I hypothesize that there are two primary explanations for this phenomenon. The first is that a lack of overt control methods limits public knowledge of the extent of government surveillance over electronic communications measures. This effect is furthered by at least the nominal presence of privacy protections in U.S. law. As a result, people exercise far less care in disclosing information to third parties with questionable motives. The most insidious thing is that even actual knowledge of surveillance does not seem to drastically affect this perception (as demonstrated by our classes continued use of these services).

The presence of legal privacy protections certainly encourages disclosure of private information, but they can nonetheless protect privacy if they carry actual weight. Unfortunately for Americans, the rules are purely nominal. They encourage transmission of private information, but don’t actually protect it, increasing the gains of the state.

The second explanation is that individuals have far less fear of tyranny perpetuated by corporate parties rather than the government. While this is certainly true to some extent (Amazon probably won’t be firing on a demonstration), this is irrelevant when the government has easy access to that information anyway. The effect may be especially strong in the U.S., since many of the individuals who most fear government tyranny also fetishize big business without realizing the symbiotic nature between the two.

By encouraging the disclosure of more private information while bypassing its own legal restrictions on privacy, the U.S. surveillance state has managed to capture the best of both worlds. The U.S. has a “free” internet that encourages transmission of private information, with an authoritarian wiretapping system behind it that ensures that the information is available to those in the ruling classes that desire it.

In order to see this draft clearly, one can't see either China or the US too clearly. States have to exist independent of the societies that express them, for one thing, and "explanation" has to mean something different than what it usually means for me. I think that the underlying point is that there is less fear of surveillance in a society that in its young existence has never been subjected to despotism, than in an empire presently controlled by despots that has been ruled by despotism for an unbroken 3,000 years. This seems to me a tautological observation of little significance. The autonomy with which the State is endowed in both societies is ludicrous as analysis, and doesn't even make sense as caricature.

In my view the route of revision should be to use this draft as a springboard to a new second draft. Given the observation made here, that the Net as an instrument of social control is being used differently in two equally different societies, what ideas can we generate that don't consist of "This good, that bad"?


Webs Webs

r3 - 23 Aug 2014 - 19:33:50 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM