Barry Eisler

Tuesday, August 27, 2013

David Miranda and the Preclusion of Privacy, Part 2



Last week I argued that the UK government's lawless detention of David Miranda, spouse of Guardian journalist Glenn Greenwald, was intended to make journalism harder, slower, and less secure (and see this great follow-up by NYU journalism professor Jay Rosen of Press Think).

Today, I'd like to discuss a common leftist reaction to the National Surveillance State's war on journalism:  the idea that journalists should preempt government attacks like Miranda's detention and the destruction of Guardian computers by immediately dumping onto the Internet any secret files that come into their possession.

The notion is superficially appealing:  if you're a journalist, patiently examining a large trove of secret documents so as to minimize the private harm and maximize the public benefit of publication, and there's a chance the government could impede or intercept your efforts, shouldn't you insure against such a dire possibility by immediately publishing everything you have?

To answer this question, we should ask two of our own.  First, what are your proper objectives as a journalist?  And second, what does the National Surveillance State hope you'll do?

I think many people would answer the first question with some version of, "The proper objective of a journalist is to make information public."  This is fine as far as it goes, but I don't think it's complete.  To me, the proper objective of a journalist is to bring about meaningful change.  Publication by itself could conceivably serve a variety of functions:  it could embarrass, or titillate, or entertain… it could provide some level of emotional satisfaction for the journalist and her audience.  Any one or combination of these could be an objective of journalism, but is any of them a worthy objective?  I would argue no, not particularly, at least not in comparison to what I think is the most important objective of journalism, which is, again, to bring about meaningful change.

(For more on the exceptionally interesting and important topic of what journalism is for and how it can best be done, have a look at The Greatest Trick the Devil Ever Pulled, and especially at the links at the bottom of the post.)

If you agree that the proper objective of journalists like Barton Gellman and Glenn Greenwald and Laura Poitras is to use their reporting to bring about meaningful change, I think you have to agree that timing and tactics matter.  That is, what course of action would have a better chance of achieving meaningful change:  immediate, indiscriminate dumping, on the one hand, or deliberate, time-released reporting, on the other?  I would argue the latter, and I think the events of the last two months tend to suggest that the kind of drawn-out, deliberate reporting for which Greenwald has been criticized by some on the left support that argument.  James Clapper, the Director of National Intelligence, has been caught lying to Congress; public opinion has shifted dramatically; voters are engaged in an overdue debate about programs of which previously they had no knowledge; Congress only narrowly defeated an effort to defund the NSA's bulk collection of Americans' phone records.  Of course I can't prove causality, but I can't see how any of this would have been achieved, or in any way better served, by an immediate indiscriminate data dump.

Pushing back the National Surveillance State is a long game that requires sound tactics.  Those tactics can only be properly understood by reverse-engineering from the correct objectives.  Yes, it might be emotionally satisfying to embarrass powerful officials, and it might be temporarily empowering to feel like you're flipping the bird to a bunch of self-important oligarchs, and yes, an immediate dump might be the proper tactic in the service of such objectives.  But they are the wrong objectives.  If meaningful change is your primary goal, you have to work backward from that objective, and not let other, less worthy ones distract you.

But look, even if you disagree about which tactic would be most likely to bring about meaningful change, might the fact that we share a goal and differ only about tactics be cause for some perspective?  The fury I've seen in some portions of the Twitterverse at Greenwald's insistence on a patient, deliberate approach seems out of all proportion.  I know patience, perspective, and civility aren't necessarily the hallmarks of Twitter  discourse, but still.  This is -- I think -- a discreet disagreement about the utility of certain tactics, not a culture war about philosophical aims.

Okay, now let's ask that second question.  What does the National Surveillance State want?

Well, let's use that handy tool of trying to put ourselves in the shoes of those determined to spy on everything boundlessly and totally.  You're determined to make journalism harder, slower, and less secure by interdicting backup means of communication -- detaining couriers, invading newsrooms, that sort of thing.  But you're smart, too, and you know that for every action, there is a reaction.  Spies and soldiers are trained never to attack without first asking, How will the enemy react to my attack?  Because that reaction could be dangerous, meaning you might have to reconsider your original plan, or it might be useful, creating a new vulnerability that you can then exploit.

Let me put it this way:  do you think it's even conceivable that the National Surveillance State is engaging in tactics like detaining the spouses of journalists and invading newsrooms, without having first imagined how journalists might respond?  Is it even conceivable that the spooks are unaware they're are creating an incentive for journalists to just dump everything on the Internet as a way of preempting governmental attempts at interdiction?  No, it isn't conceivable.  The government is engaging in these tactics knowing full well that the tactics will incentivize less careful, patient, discriminate reporting.  What follows, then, is one of two things:  a journalistic "data dump" reaction is either a risk the National Surveillance State is willing to take… or it is an objective it is attempting to achieve.

Which is it?  I would argue the latter.  Again, put yourself in the shoes of our secret overlords:  if you can goad someone like Greenwald into rashly dumping improperly vetted secret information onto the Internet, is that a loss for you… or is it in fact a significant win?

Answer that question by asking, what would the data dump cost you, and what would it gain?  Operationally, it would cost you little.  Spying operations have been continually outed since the dawn of the Cold War, and the size and power of the National Surveillance State has only grown.  A few new revelations will have no more impact on the leviathan-like expansion of your reach than have any of the previous ones.  Conversely, a blown listening station, or better yet, a dead human asset, would be enormously useful:  it might enable you to shift the narrative from lawlessness and overreach to something more like "These traitor journalists have blood on their hands!," which you know is your propaganda trump card.

All this being the case, you might not merely hope someone like Greenwald would abandon his patient, methodical reporting in favor of something more knee-jerk and less careful.  You might go further than just hoping.  You might even try to provoke Greenwald -- say, by harassing his family.  You might even try to manufacture opportunities to change the narrative -- say, by leaking a few ostensibly damaging secrets yourself and blaming them on Edward Snowden.  More than anything, if you're the National Surveillance State right now, you crave a bloody shirt you might wave to try to blow back the tide of thoughtfulness and rationality precipitated by Edward Snowden's whistleblowing, and by the extremely careful reporting accompanying it thus far.

(Or, short of that, wag the dog by going to war with Syria, I guess.  That kind of thing is always a good distraction.  But I digress.)

On balance, therefore, I'd have to say that if journalists start dumping secrets in response to government interdiction efforts rather than judiciously reporting them, it will be a win for the National Surveillance State.  The National Surveillance State understands this, and is choosing its tactics accordingly.

Of course, if you're one of the people who's been agitating for an immediate, indiscriminate, knee-jerk document dump instead of the patient, deliberate approach that has kept Snowden's revelations as front page news for over two months now, the fact that you and the National Surveillance State both want the same thing isn't necessarily dispositive.  But it ought to give you pause.  When you find yourself and your antagonist both trying to bring about the same thing, one of you is being smart, and the other, naive.  Best to give a little more thought about which is which, and choose your tactics accordingly.
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18 Comments:

Blogger antares said...

Back in the Cold War days, many documents remained classified after the matters in them became outdated. Why? So that when a current document was leaked we could dump a load of outdated crap on the Soviets and let their analysts try to find the gold needle in the crap haystack.

Think that's the situation with Greenwald?

Tuesday, August 27, 2013 5:21:00 PM  
OpenID 1698909e-0f92-11e3-9f70-000f20980440 said...

Obviously the NSA shouldn't be spying on us in the first place. And it's possible, I suppose, that some there could want to "sand the gears" of journalists and private-talk-havers in order to corral everybody back into surveilled communication modes. But not only is it a huge leap to read those broad and supervillian-malevolent intentions into the detention of Miranda and destruction of the Guardian's drives, that whole line of thought ignores a much more prosaic and common-sensical explanation:

The NSA doesn't like it when you embarrass the NSA. Edward Snowden was hugely humiliating for them, and Greenwald and the Guardian keep rubbing salt into the wound. We can all be grateful to Snowden and agree that Greenwald and the Guardian (and now Miranda) are not only well within their rights to and doing a tremendous service by tirelessly and fearlessly keeping the story alive and holding the NSA accountable. But I think it is also fairly self-evident that the NSA would beg to differ on all counts, plus they're just plain pissed off.

So they come after Greenwald and the Guardian hard, and if they get their hands on Snowden they will really go to town. They absolutely shouldn't, and if you can hold their feet to the fire here then more power to you. But before assuming this will be their standard operating procedure from here on out or even that the intent is to send a message to the broader journalism community or gum up their inner workings more generally, I at least will need to see examples that don't involve the NSA specifically as the subject of the journalism being stymied. Without that this looks more to me like what happens when cops are hauling cop killers into the station; the suspects have a tendency to fall and break their face. It's not right but it's also fairly limited in scope.

Tuesday, August 27, 2013 8:30:00 PM  
Blogger Andrew Shields said...

Even without your considerations of the issue, I'm surprised by the idea of a data dump. A data dump is not a STORY, and a journalist with a lot of data to sort through has to tell a story with it, or change will never happen.

Wednesday, August 28, 2013 6:29:00 AM  
Blogger JTG said...

The public has been conditioned (groomed) to behave in a shortsighted, emotionally-driven reactionary manner. The transformation of an independent, deliberate, and cautious people has continued apace since the pioneering of "public relations" by Edward Bernays.

Chomsky states that Bernays believed (proved?) that by elite media manipulation, "it is possible to regiment the public mind every bit as much as an army regiments their bodies."

Wednesday, August 28, 2013 7:35:00 AM  
Blogger Ambon Pereira said...

Encouraging a data-dump could be a form of entrapment-- it might allow them to 1)nail Snowden with the same charges they brought against Manning and 2)nail Greenwald with whatever they've cooked-up for Assange in that purported sealed-indictment (although we can only guess at the specifics: disclosing state-secrets with malicious intent, perhaps? IE aiding and abetting the enemy charges attempted against Manning?)

In any regard, a data-dump would polarize the discourse and increase the "noise" so that Greenwald's basic signal-- NSA lawlessness-- would be lost or distorted, as the gov't and its media partners re-frame the narrative around "Greenwald's lawlessness". Any conflation of Greenwald with "lawlessness" is apparently desirable-- for example, Toobin implying that Greenwald is analogous to a narco by comparing Miranda with a "drug-mule".

Wednesday, August 28, 2013 7:39:00 AM  
Blogger Don Bay said...

Your analysis hits the bull's eye. Although the NSA members may be mostly young and idealistic, they are smart and willing to play the long game...as Greenwald must.

However, isn't it within the realm of possibility that the public Greenwald wants to influence will grow weary of the revelations of the NSA's intrusions and move on to the next big story? Put another way, isn't it possible in light of ample evidence that the public will get tired of the NSA story in the absence of a large "dump" and quit paying attention to the drip, drip, drip of timed revelations? After all, Syria waits in the wings.

Thursday, August 29, 2013 6:58:00 AM  
Blogger Brian de Ford said...

Snowden and Greenwald both know that encrypted e-mail would have been adequate for communication with Poitras. Either the encryption was good enough for e-mail or too weak for physical transport.

No way could that they assume that Miranda would not be intercepted and physical media confiscated. If the encryption was strong enough to withstand that it was strong enough for e-mail.

So this was clearly Greenwald dangling some bait into the water to see if anything would bite. And bite it did. Which bolstered Greenwald's claims about uncontrolled, illegal surveillance.

Do you really want people this stupid knowing every communication you make?

Saturday, August 31, 2013 1:13:00 PM  
OpenID lawrenceserewicz said...

Dear Mr. Eisler,

Thank you for an interesting series of posts on the topic of the surveillance state. I would like to focus on one point you have raised. You stated "To me, the proper objective of a journalist is to bring about meaningful change."

What do you mean by "meaningful" and “change”? Your post has not explained what you mean by that phrase or those words. Yet, you want us to believe that journalists act in the public interest simply because they want to achieve meaningful change. Are we to accept at face value that their change is good or for the better? Many people believe that they have a vision of the political good but often it is flawed. More to the point, the suggestion that the goal of a journalists is to achieve “meaningful change” does not explain if it is good or bad. A journalist who was a cannibal would be as acceptable under this definition as one who was a practicing Satanist who indulged in ritual human sacrifices, so long as they were for “meaningful change”.

If you believe the political decisions by elected politicians who have made those decisions are wrong, on what basis that you disagree with them? Or do you believe that they fail to deliver the political good that the public elected them to achieve? If so, what is the political good that you would prefer they achieve? Is it simply your interest? Are not the government and the political process itself designed to deliver “meaningful change?” Why then, do we need journalists when we already have political parties?

Unless you are suggesting that all journalists share the same beliefs, it is hard to see how journalists can now claim to be working in the public interest. Journalists, I am sure you will agree, will disagree with the public and the public will disagree with them. Perhaps journalists agree to the extent that they believe in a free press and the first amendment but after that common denominator, one finds that their views quickly come into conflict and splinter. So, if journalists are acting in their personal interest, then how can you support the claim that the journalists acts in the public interest? If they are acting in the public interest, “the public need to be informed” they are choosing what the public need to know. But, on what grounds do they decide that the public need to be informed; is it their own agenda or the public’s agenda? Does this mean we return to the issue that meaningful change is only what you prefer? If you are only to promote, as the public interest, what you prefer as a private interest, have you not therefore subverted the democratic process? You are in danger of conflating your private good with the public good. If it is meaningful change, it must be good, and therefore it must be in the public interest. Yet, that does not explain what is in the public good, it only asserts that it is.

How are democratic citizens to judge whether the journalists are acting in the public interest and not subverting the democratic process?

Sunday, September 01, 2013 5:36:00 AM  
Blogger Barry Eisler said...

Thanks for the thoughts, everyone.

Brian, all good defense is layered -- the idea being that if one layer is breached, you have others you can rely on. Having a courier carry encrypted information adds another layer, and therefore strikes me as a sound and defensible tactic. So it doesn't make sense to conclude that in using a courier, Greenwald was baiting anyone. What seems far more likely and obvious is that he was simply adding another layer to his defenses.

Lawrence, maybe the best way to address your numerous questions is to first ask one of my own. What do you think is the proper purpose of journalism?

Sunday, September 01, 2013 9:27:00 AM  
Blogger Barry Eisler said...

Don, it's possible the public will tire of NSA revelations, but why would this be more so in the presence of gradual, calibrated revelations than it would be in the presence of a one-time infodump?

Sunday, September 01, 2013 9:29:00 AM  
Blogger David Tindell said...

I linked to your previous blog post and Matt Taibbi's article. In that one, Taibbi says that baseball writers in the pre-Robinson days were not real journalists because they covered the games without mentioning that Major League Baseball was segregated, the implication being that they weren't doing their jobs because they didn't constantly bring this up. Besides ignoring the fact that some writers did in fact bring it up at the time, Taibbi seems to be saying that you can't be a real journalist and report on an event without delving into the deeper political overtones. And everything's political, right? So, here's a situation: An overweight man pitches over dead of a heart attack in a supermarket. A reporter writes a story on the event. He reports the who, what, when, where, why, but focuses on the last one. He talks to the man's family about his lifestyle. Why was he overweight? Did he eat too much? Didn't he ever exercise? Why didn't the family do something about it? The family asks that their privacy be respected in their time of mourning, but the journalist knows there's a higher principle at play here, and he's going to pursue it. People shouldn't be overweight! They are allowing themselves to be slaves to Big Sugar! He eventually finds an acquaintance with an ax to grind against the family who says yeah, the guy ate like a pig and his only exercise was shoveling potato chips and chugging beerinto while watching football. Even worse, he was a Redskins fan! So not only was he a glutton and a slob, he was a racist. Because the journalist wants to effect change, and his editors agree, the story is published. Has he done his job, or has he gone too far?

Wednesday, September 04, 2013 7:23:00 PM  
Blogger Barry Eisler said...

David, have another look at Taibbi's article. He was making the opposite point that you attribute to him: namely that even a sports writer covering baseball in the most seemingly noncontroversial way possible is engaging in advocacy:

http://www.rollingstone.com/politics/blogs/taibblog/hey-msm-all-journalism-is-advocacy-journalism-20130627

Regardless, I'm sure reasonable people might disagree about individual examples of whether a journalist has gone too far or not far enough, even if they agree on the general principle of what journalism is. There are some thoughtful articles on this topic linked at the end of the blog post below.

http://barryeisler.blogspot.com/2013/07/the-greatest-trick-devil-ever-pulled.html

Wednesday, September 04, 2013 10:04:00 PM  
Blogger David Tindell said...

I can see where the reader of Taibbi's column might think that way, but it's also possible--in fact, I think likely--that, given the tone of Taibbi's piece and the overall slant of his journalism, he believes the baseball writers of old should have been up in arms about segregation in their sport. One wonders how Taibbi would cover baseball today, if he were working for a paper that assigned him to cover a team on a daily basis. How often would he leave the action on the field to go into the politics involved in the game? I would think he would do that quite often. He would not be able to help himself. In any event, I think the example I cited shows how a journalist seeking a political angle in everything he covers can quickly stray far from the topic.

Thursday, September 05, 2013 5:26:00 AM  
Blogger Barry Eisler said...

David said, "I can see where the reader of Taibbi's column might think that way..."

If a reader might think Taibbi used his baseball example to illustrate the impossibility of eliminating bias (and the dishonesty of suggesting otherwise), it's probably because of what he clearly said:

"But to pretend there's such a thing as journalism without advocacy is just silly; nobody in this business really takes that concept seriously. "Objectivity" is a fairy tale invented purely for the consumption of the credulous public, sort of like the Santa Claus myth. Obviously, journalists can strive to be balanced and objective, but that's all it is, striving.

"Try as hard as you want, a point of view will come forward in your story. Open any newspaper from the Thirties or Forties, check the sports page; the guy who wrote up the box score, did he have a political point of view? He probably didn't think so. But viewed with 70 or 80 years of hindsight, covering a baseball game where blacks weren't allowed to play without mentioning the fact, that's apology and advocacy. Any journalist with half a brain knows that the biases of our time are always buried in our coverage.

"Like many others, in my career I decided early on that I'd rather be out in the open about my opinions, and let readers know what my biases are to the extent that I can..."

I don't see how it could be relevant to the clear and cogent point above that Taibbi might in his heart wish that baseball reporters of old had taken their activism in another direction. He's not in any way arguing that journalists should be activists in one direction or another. He's arguing that the notion of eliminating the activism inherent in journalism is itself impossible.

Read more: http://www.rollingstone.com/politics/blogs/taibblog/hey-msm-all-journalism-is-advocacy-journalism-20130627#ixzz2e2oTi1tt
Follow us: @rollingstone on Twitter | RollingStone on Facebook"

"In any event, I think the example I cited shows how a journalist seeking a political angle in everything he covers can quickly stray far from the topic."

Or rather, what you think should be the proper topic is itself inherently an activist decision. Which is precisely Taibbi's point. Again: "Any journalist with half a brain knows that the biases of our time are always buried in our coverage."

Thursday, September 05, 2013 11:36:00 AM  
Blogger David Tindell said...

In the end, we are left with Taibbi's declaration that objectivity in journalism is a "fairy tale", that no matter how hard a reporter strives to be fair and balanced, it is impossible to keep his own political viewpoints out of the story. So why bother? We return to the premise that the purpose of journalism is not just to report the facts, but to report them in such a way as to effect change. The "change" would be one which the journalist believes should be made, based on his political leanings. How are we then to trust any journalist's writings, since by definition, the journalist is trying to advance his own agenda? If we are looking for truth, where are we to go? We are constantly hearing from each side in the current American political climate that the other side is intransigent and will not compromise. But the essence of compromise is to agree on a set of basic facts about a situation and then work on a solution that is as palatable to both sides as possible. How is this to be done when nobody can trust anyone to report the facts fairly?

Thursday, September 05, 2013 6:45:00 PM  
Blogger Barry Eisler said...

David, I'm not sure why, but you keep raising questions that Taibbi has already explicitly addressed. Again: "Like many others, in my career I decided early on that I'd rather be out in the open about my opinions, and let readers know what my biases are to the extent that I can..."

You can trust a journalist who is honest and open about her (inevitable and unavoidable) worldview. You shouldn't trust a journalist who pretends not to have one.

Thursday, September 05, 2013 8:11:00 PM  
Blogger aaron said...

1. Generally disagree concerning the purpose of journalism "should" be to bring about meaningfull change.

I believe it should be to present information in context, as objectively as possible, with biases given as assumptions when feasible.

Simply stating that one cannot fully mitigate one's own bias (while true) is rather on the intelecutally lazy side for someone who makes their living with their mind. I posit that rather than being open and honest, it's more in the nature of sucking at your job. Instead, state the biases and then still do your best to present the story objectively and truthfully. Much like the old taco shell commercial, why can't we have both?

I also believe that holding to that purpose of journalism is quite likely to steer one down some pretty dishonest paths. But that's perhaps a digression?

2. Dumping all the data at once has two benefits you've yet to mention.

a) initiates information overload (paralysis by analysis, if you will) limiting the journalist's ability to use timing and lowering the quality of wordsmithing through rushing the deployment. Which of these dozens of crimes is the one that will really upset the public? I don't know, drop them all at once. And then the public at large doesn't even take the time to actually read through it...because it's too much data, too high a volume, in essence too much work.

b) effectively turns multiple points of politically damaging data into one story, which can then be trumped by another in the continual barrage of the 24 hour news cycle. Takes advantage of the relatively short attention span of the collective.

Monday, October 07, 2013 5:36:00 AM  
Blogger Westmiller said...

I fully agree with your analysis, but will add two points.

1. The greatest fear of the Controllers is that their next utterance will be proven false by a new disclosure. If everything is dumped, that fear disappears.

2. The Controllers are saturated with knowledge of terrorist tactics ... and use them whenever it suits their purpose: instilling fear in every possible enemy (AKA journalists).

Sunday, December 29, 2013 3:38:00 PM  

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