What really irritates me about the discourse on Snowden and the NSA is that whether you think Snowden is a hero or a traitor, whether you’re British or American, everyone seems agreed on the “fact” that the release of selected NSA files to a single multinational corporation is the ultimate freedom ever.
Let’s think about what The Guardian is. It is not a human rights organisation dedicated to protecting us and guaranteeing transparency. It’s a powerful corporation and it’s not exposing the NSA and GCHQ to protect us or benefit us. It’s doing so in pursuit of the almighty dollar. We’re trusting a corporation with an unknown agenda (and unknown research and data parsing skills) to look at thousands of files and accurately report back to us, the public. Its reporters were not elected by us and the Guardian may have allowed Glenn Greenwald’s partner to work on the files (when the police held David Miranda for 9 hours at Heathrow and questioned him about the files, he’d been visiting a film producer- at the Guardian’s expense- who’d also been working on the files.) The question I’m getting at is: why was this film maker chosen to get access? Why was Miranda so priveleged, just by virtue of being Greenwald’s partner? This looks less like a desire for transparency and more like a relationships-based in-group whose entitlement and qualifications to access the NSA files aren’t entirely clear.
The press use very similar tactics to GCHQ. I’m not just referring to the infamous NotW hacking scandals, but to the very many virtually unknown cases of press spying, stalking and covert surveillance. Using a covert camera to out a woman as a sex worker is not ethical. Neither is harassing Lucy Meadows until she killed herself. Like spy agencies, the press routinely act above the law- if any of us camped out on someone’s doorstep or harassed someone like Meadows was harassed, we’d be charged. But because they’re journalists, it’s not deemed criminal activity. The press also use similar tactics of infiltration, bugging and cyber surveillance to the police and government.
It’s in the Guardian’s interests to retain sole possession of the files (they are the sole posessors in the UK) because if other media corporations got hold of them, the Guardian would lose readers and therefore money. No longer would we be forced to go to The Guardian for the latest UK-based reporting on GCHQ and the NSA. If the Guardian really wants transparency, they should keep reporting but also let all of us see the files on the internet- a sort of Wikileaks 2.0.
But they won’t. Because if we can see the files ourselves on NSAWikiLeaks.com, why would be bother to read The Guardian? They’d lose money. The NSA scandal is great clickbait.
But even if they wanted to- which they don’t- how can they? GCHQ used the threat of criminal prosecution under the Official Secrets Act and civil litigation to coerce The Guardian into destroying its UK-held files in what the Guardian described as a “symbolic” act. GCHQ knew the Guardian holds copies in the USA and Brazil (in its US office and with Glenn Greenwald, though oddly neither is explicitly stated in the article, perhaps for legal reasons). GCHQ also would have no idea if what they saw being destroyed really were the files, or all of the files, or that there weren’t back-ups. While the lead-up to the destruction would be film-worthy in itself (journalists, lawyers and secret agents are some of the best game-players, so the debating and negotiating would’ve been epic) GCHQ knew it didn’t achieve anything and that its cover-up would be publicised. They were trying to intimidate journalists- and they don’t care if we all know about it.
An acquaintance of mine wrote an excellent article (with which I entirely disagree, but that doesn’t negate the points she made) that the rule of law means Snowden should be jailed- not because he’s a “traitor” but because nobody is above the law. Similarly GCHQ demanded the files on the basis that they’d been stolen by Snowden- never mind that spy agencies act above the law all the time and steal information as an existential purpose (not criticising- when declassified or leaked, the international game makes for great entertainment in the form of documentaries. Keep it up.)
That being said, the Guardian is also unreasonable not to acknowledge the (potential) risks to national security of them keeping the files. Their staff don’t have the security clearance normally required to even be contracted for mundane work by spy agencies, they don’t have the ability to defend or hide the files, and while GCHQ’s laser example is a bit paranoid, The Guardian could potentially be infiltrated. And then of course there’s all the journalists and other staff who have access to the files- will they refrain from publishing secrets to protect others when it means losing profits? Or even recognise which data could be harmful if it got out in casual conversations with their friends? I’m not saying it’s a good thing that the Guardian destroyed the files (assuming that they even did). A lot of issues have to be balanced here- democracy, transparency, freedom of the press, national security, the safety of NSA and GCHQ agents. And of course without seeing the files I can’t have an opinion on which way the scales tip. I’m just saying that this conundrum should be acknowledged. These risks are possibly a minor motivation in GCHQ wanting the files surrendered or destroyed, though we all know what their main concern is.
But it’s not only GCHQ that journalists have to worry about. As Greenwald notes, the Mafia have rules about targetting families of their enemies. But the police questioned his partner for 9 hours when he changed flights at Heathrow. We’ll never know if it was the result of the UK’s torrid love affair with the USA, or if it was motivated by GCHQ’s desire for us not to be all using VPNs and therefore untrackable. But whether the USA was involved or not, it’s clear that our state tracks journalists and their families. Or how did police know Miranda had arrived at Heathrow? The UKBA must have notified them. And why would the UKBA do that? Because they’d previously been told to notify the police if Miranda ever passed through a UK airport. It’s surprising that the police would be so interested in a man who hasn’t committed a crime and who they didn’t think was a terrorist, which suggests that the government or GCHQ had given the orders to the police. So clearly it is the state that is surveillancing Guardian journalists and not GCHQ or the police acting alone. The controversial terrorism law simply made the police the best choice to go after Miranda, and using the police avoids the public reaction that would occur if other agencies had questioned Miranda. In reality, information is shared between intelligence agencies and the police work closely with the Security Service (previously known as MI5, still known by that name because authors and scriptwriters refuse to do two seconds of research). As this is a domestic issue, it falls within MI5’s remit, though perhaps the USA connection means some info is shared with the Secret Intelligence Service (MI6, ditto).
[Update: I was right about MI5 being behind this and just using the police to hide their involvement. In their defence, Miranda’s arrival at Heathrow was a golden opportunity to ascertain the extent of Snowden’s leak and find out who else had seen the files, so it’s understandable that they’d want to question him for national security. Which doesn’t negate the fact that the law was being abused or that this may have been about pleasing our American overlords as much as about protecting the UK. It’s understandable that the USA wants Snowden prosecuted as otherwise laws about revealing secrets would mean nothing, but there’s no reason we should help them unless the USA gives us something in return].
It’s worth mentioning that we tend to look at this in a top-down way: the government is spying on us and doesn’t want us to know. But by the very nature of blanket surveillance, GCHQ must also surveillance politicians, even if unintentionally. While Government servers are more secure, everyone is vulnerable once they’re on their own laptops- including police officers and agents of other spy agencies (assuming they don’t know the extent of GCHQ surveillance, which is likely if they don’t need to be told.) Parliament and the judiciary appear to have no authority over GCHQ and in fact are GCHQ’s targets along with the rest of us. No-one’s yet done a dystopic novel about what happens when a low-profile spy agency takes over the government, but if you’ve got an idea for one this might be a great time.
So I don’t think we’re going to see WikiLeaks 2.0 any time soon, unless Snowden is the one to create it. It’s not reasonable to expect journalists to risk their freedom by uploading the NSA files to the internet. The only way around the risk would be to get a child under the age of criminal responsibility to upload the files, and even then it’s likely that the adult who told the kid to do it would be prosecuted. But we’d do well to remember that the Guardian’s position is that its possession of the NSA files is not a threat to national security (or that the public interest outweighs such a risk). So why not release some of the files to other UK media outlets? If The Guardian wants to prove it cares more about transparency and the public interest than it does about profit, it should release at least some files to other media outlets to allow speedier reporting (it’ll take months or years to read all those files), better analysis of the data, and more perspectives.