The domestic limit codifies the idea that sovereign borders matter – they fiat a loophole that authorizes greater state surveillance even if the executive complies
Austin, 14 – professor of law at the University of Toronto (Lisa, “Lawful Illegality: What Snowden Has Taught us About the Legal Infrastructure of the Surveillance State∗” SSRN) ICT = Information and Communications Technology When we consider questions of accountability and oversight, we most often do so within a national framework. Canadian commentators, for example, point to systems of oversight south of the border and argue that in comparison our own framework is inadequate and in need of reform.33 The framing of the question is then how to ensure that Canadian surveillance activities occur within a framework of law, or that Canadians and persons within Canada receive the protection of the law. However, I argue that is also important to question the extent to which national jurisdiction remains a meaningful category in relation to questions of oversight. As I outline in this section, in the context of a global communications infrastructure, ideas of national law and status categories (like non-US person) are currently more likely to create the legal “loopholes” that enable broad surveillance than to create forms of accountability and oversight.
Our increasingly borderless system of communication is one that follows the technical imperatives of the nature of information. It is widely agreed that the classic point of departure for information theory is Claude Shannon’s 1948 paper, “The Mathematical Theory of Communication,” which purported to provide a theory that would allow one to measure information and system capacity for storage and transmission of information.34 As he so strikingly outlines in his introduction, the “semantic aspects” of communication—the meaning of messages—“are irrelevant to the engineering problem.” “Information,” on this model, is not something that is dependent on the context of disclosure or of receipt. One can see how, despite developments in information theory and practice in the intervening decades, this still captures an important aspect of information and communications technology (ICT). ICT easily shifts information from one context to another partly because what information is is seen to be independent of these contexts. This logic is further extended in the context of the so-called digital revolution in ICT, which has largely erased the differences between different mediums of transmission and led to an ever-greater proliferation of networking.
The basic “logic” of information, therefore, is that it does not respect context. This is one of the reasons that ICT raises so many privacy concerns. Both privacy norms and justifications for the breach of privacy norms depend upon many contextual factors, yet ICT facilitate practices that render those contextual factors irrelevant.35 Disclosing information in a context and for a purpose different than the context and purpose for which it was initially collected is one example, taking information that is relatively innocuous in one context and aggregating it to create revealing profiles is another. Geographical borders areanother “contextual” feature that ICT increasingly renders irrelevant in many practical details. With so many of our personal and professional activities mediated by the internet, many of us physically sit in one jurisdiction and at the same time talk, shop, write, and read in an entirely different jurisdiction. The rapid adoption of cloud computing has meant that we can now be in one jurisdiction but have what are essentially our own personal digital archives stored in another jurisdiction (or multiple jurisdictions).
Several NSA surveillance programs exploit these features of modern communications technology, through leveraging the fact that much of the world’s internet traffic passes through the United States and that many of the most central players in cloud computing are US companies, giving it a “home-field advantage”.36 Although the NSA’s internet surveillance programs operated extra-legally in the aftermath of 9/11 37, they now operate within a legal infrastructure that allows them to take advantage of US dominance of the internet. Prior to 2008, US authorities could only conduct surveillance on non-US person targets outside of the US by showing reasonable and probable grounds that the target was a foreign power or an agent of a foreign power, and by obtaining an order from the Foreign Intelligence Surveillance Court (FISC).38 With the passage of the FISA Amendments Act (FAA) in 2008 39, FISC can approve surveillance of non-US persons outside of the US without individualized orders.40 These changes have provided the legal basis for NSA programs like PRISM, which involve obtaining communications data from internet companies like Microsoft and Google.
From an American perspective, these legal changes remove obstacles to the timely acquisition of important intelligence information while not compromising US constitutional guarantees, since the US constitution is widely held to not apply to non-US persons abroad.41 However, from the perspective of a non-US personthis can enable state surveillance on standards that fall below their own domestic statutory and constitutional guarantees. Consider Canada. A Canadian using Gmail, for example, has her email routed through the US and stored on US servers, making it vulnerable to collection under the FAA. Under s. 702, the Attorney General and the Director of National intelligence are permitted to jointly authorize the targeting of individuals located outside of the US “to acquire foreign intelligence information.” This is not an individualized warrant regime. FISC approves annual certifications for the collection of categories of foreign intelligence information and the AG and DNI can then determine which individuals to target, without any additional oversight.42 Foreign intelligence information includes information that “relates to” “the conduct of the foreign affairs of the United States.”43 Such a broad definition can easily include things like political speech, for example; while there are protections in FAA for freedom of expression, these all apply to US persons only.44 There are also a variety of “minimization” provisions to reduce the privacy impact of authorized surveillance but these provisions also only apply to US persons.
Canadians do not face a similar threat of surveillance from the Canadian state. For example, the National Defence Act does not allow CSEC to target Canadians, much less to do so on such lax standard. Canadians can be targeted by CSIS or the RCMP, and then CSEC can assist through its assistance mandate, but such targeting is then subject to both the warrant requirements that apply to these agencies as well as our Charter guarantees. Of course, CSEC has a controversial metadata program that has raised numerous questions regarding both its statutory authorization and its constitutionality. Nonetheless, what is important here is that, in relation to non-US persons, FAA permits access to content as well as metadata with fairly limited statutory restrictions and no constitutional restrictions at all. Canadians who use USbased cloud computing therefore are subject to US state surveillance on standards that, if applied within Canada, would be clear violations of our statutory and constitutional rights.
Many have also claimed that these standards are clear violations of international human rights standards. This debate is ongoing, but the official position of the US government is that the protections of the International Convention on Civil and Political Rights only extend to individuals both within its territory and within its jurisdiction.45 The split that cloud computing makes possible – that an individual would be outside its territory but her information subject to US jurisdiction – also creates a space where international human rights norms (arguably) do not apply.
There has been pressure to amend US law in order to erase this distinction between US and non-US persons. The President’s Review panel offered one of the most serious attempts to justify some form of such a distinction. The justification they offer is not based upon the reach of the Fourth Amendment, but an understanding of democratic community. It is worth reproducing at some length:
To understand the legal distinction between United States persons and non-United states persons, it is important to recognize that the special protections that FISA affords United States persons grew directly out of a distinct and troubling era in American history. In that era, the United States government improperly and sometimes unlawfully targeted American citizens for surveillance in a pervasive and dangerous effort to manipulate domestic political activity in a manner that threatened to undermine the core processes of American democracy. As we have seen, that concern was the driving force behind the enactment of FISA.
Against that background, FISA’s especially strict limitations on government surveillance of United States persons reflects not only a respect for individual privacy, but also—and fundamentally—a deep concern about potential government abuse within our own political system. The special protections for United States persons must therefore be understood as a crucial safeguard of democratic accountability and effective selfgovernance within the American political system. In light of that history and those concerns, there is good reason for every nation to enact special restrictions on government surveillance of those persons who participate directly in its own system of self-governance.46
The justification for the distinction therefore remains rooted in ideas of the importance of national jurisdictionand traditional ideas of the significance of the state and its coercive powers. This just underscores the fundamental tension: we have a global communications network where increasingly borders do not matter, we have surveillance practices responding to this reality, and yet we seek to justify and hold surveillance powers to account through asserting that borders matter. Even the idea that concerns about abuse of state authority are restricted to the context of domestic political activity is difficult to accept when so many of us frequently cross borders for both personal and professional reasons. The Canadian example of Maher Arar is a stark reminder of this—Arar was apprehended by US authorities while in-transit in New York, and removed to Syria where he was tortured.47
Apart from the issue of Canadians crossing the border and becoming directly subject to US jurisdiction, there is the issue of information sharing between the US and Canada, as well as with other allies. If US authorities can collect information about Canadians on lower standards than are permitted within Canada, and then share this information with Canadian authorities, then this effectively creates an end-run around our constitutional guarantees even if it is, on some level, “lawful”. Although we do not know enough about Canadian practices to assess the seriousness of this worry, recent evidence suggests it is not that far-fetched.
Codifying borders creates a shared sense of national identity – this ontology of sovereignty eliminates effective politics and conceals violence
Shaw, 99 - Adjunct Assistant Professor in the Department of Political Science, University of Victoria (Karena, “Feminist Futures: Contesting the Political” 9 Transnat'l L. & Contemp. Probs. 569, lexis)
So, for example, over the past few centuries, the patterns of inclusion and exclusion expressed by sovereignty have been inscribed and reinforced through immigration policies, citizenship and voting policies, border patrols, nationalist struggles, the creation of new states, and the divisions of others. It would be difficult to assert that these patterns of inclusion and exclusion simply "made sense," given the violences that have been effected to maintain them. However, the structures and functioning of mechanisms of communication, transportation, war, economy, and so on, were such that sovereignty "worked" in some cases to the benefit of citizens within particular states, protecting them from the vagrancies of capitalism, environmental disaster, particular kinds of violences, some forms of discrimination and injustice. It has never "worked" as effectively for others, which is no accident, of course, given the particularity, the historical, social and cultural specificity, of the ontology of sovereignty. However, as technologies--particularly of capitalism, war, and communication--have changed, so have both the potential dangers to citizens and the ability of any given sovereign power to ameliorate them. Given this, it is important to pose the question of whether a territorially bounded, identity-grounded sovereignty is either possible or desirable. If it is not, the perpetuation of the mythology of sovereignty will provoke ever-increasing levels of violent resistance.
To pose this question is to open the problem of whether we should read the movements that Benhabib argues are struggles for identity as, rather, expressions of political conflicts that exceed the possibilities of an identity-based sovereignty to effectively address. What if, according to sovereignty discourse, the "non-politics" of what happens prior to relations of governance (the effects of the production of the ontological foundation that enables governance), is really where the action is these days? n41 What if, for example, instead of only or primarily reading contemporary movements as demands for "inclusion" at the level of relations of governance, we read them as resistances and challenges to the violences of sovereignty-constitution and subjectivity constitution? In other words, what if we read them not only as calls for more inclusive identities, but as effects of the violence produced by and thus as critiques of the identity/difference architecture for the basis of legitimate political authority?
It is crucial to recognize that if we assume sovereignty, these questions are foreclosed, rendered unrealistic, irresponsible. If we simply refuse to consider what sovereignty discourse effects (the distinctions between inside and outside, domestic and international, politics and war, legitimate and [*586] illegitimate violence, citizens and foreigners, men and women, sane and mad, modern and primitive) and what it conceals (the traditions under which these distinctions are made) we thus contribute to a continuation of the mythology that these distinctions(and their constitutive violences)are beyond the political. We reinscribe them as necessary and natural, rather than as necessary and contingent and produced through violences that are both crippling and constitutive of personal and political possibility. What difference might it make to open these questions? Rather than exclusively focusing on making nicer identities, we could ask questions about the conditions--themselves highly political and often intolerable--under which we come to rely on identity as the basis for political authority, and the effects of this reliance. We could ask questions about whether we can reconstitute these conditions, about whether we can rearticulate the necessities and violences of political possibility.
The impact is state extermination of the periphery and endless war
Shaw, 99 - Adjunct Assistant Professor in the Department of Political Science, University of Victoria (Karena, “Feminist Futures: Contesting the Political” 9 Transnat'l L. & Contemp. Probs. 569, lexis)
If sovereignty is broadly constitutive of political possibility, why not simply assume it so that we can get on with our analyses and our progressive practices? As Benhabib notes, many contemporary movements articulate their demands in languages of sovereignty and identity, and thus lend themselves to being read as she does: as demands for identity production or recognition. After all, that these exclusions and violences have been resisted through the appropriation of the same discourses used to effect them-- discourses of sovereignty expressed in identity politics, human rights discourses, humanism--is a testament to the power of sovereignty discourse, and to its domination of discursive spaces of power. So why not accept these demands at "face value" and work to facilitate these ideals, to "include" those previously excluded from the polis, to grant them sovereignty and thus (apparently) political subjectivity? Why not, in other words, accept the ontology of sovereignty--not as perfect, but as what we have to work with-- and turn it to the empowerment of its previous victims? Why not accept the modern state as the container for politics and work to facilitate adequate representation for each and all at the state level?
[*582] To be clear, this is a necessary strategy under some conditions. But it is also both insufficient and potentially dangerous. The danger of assuming sovereignty is twofold. First, the assumption of sovereignty forecloses the questions that we most need to address, forcing us into a reading of politics that leaves us unable to respond to contemporary political challenges. In particular, the assumption of sovereignty prevents us from subjecting the discourses and practices of sovereignty themselves to the kind of critical scrutiny that is required, given changing material conditions for the production of political authority. Second, if we continue to assume that sovereignty is the necessary precondition for political authority, and thus remain unable to engage the question of its character or appropriateness, we will continue to impose and enforce--however violently--the necessities of sovereignty onto material conditions that may be increasingly resistant to such an imposition. By maintaining the mythology that sovereignty is necessary and natural as a precondition for politics, we will-however unintentionally--continue to sanction the violences done in the name of sovereignty, considering them necessary and natural rather than contingent upon the particularity of the ontology of sovereignty. To open the discourses and practices of sovereignty to question, on the other hand, enables a range of questions about the conditions of possibility for political authority to be opened and engaged. I believe that the future of feminist politics depends upon an engagement with these questions.
The dangers of assuming sovereignty emerge from the ways in which the assumption of sovereignty--the assumption of the necessity of the particular ontological resolutions that have enabled modern political authority--shapes and constrains our thinking about politics and our political action. As I have emphasized, one of the particularly powerful aspects of Hobbes' architecture of sovereignty is that it convincingly persuades us that there is no alternative to sovereignty. It is the necessary precondition for all that is good; all else is war, conflict and violence. If we believe this particular mythology of sovereignty, of course, we will be compelled--as theorists and practitioners of politics--to do everything we can to create, protect and strengthen the ontology of sovereignty; we certainly do not want to be responsible for leading our fellow beings into the alternative. It is this particular element of the architecture of sovereignty discourse that has led to perhaps its greatest violences. Because the ontology of sovereignty is not assumed to be contingent, but necessary and natural, whatever violences go into its production are also rendered necessary and natural rather than political.
However, the ontology of sovereignty is neither natural nor neutral. On the contrary, both the particularity of the ontology of sovereignty and the belief in its necessityhave been responsible for incredible violences. It is not difficult to think of many examples of this: the extermination and colonization of indigenous peoples on the grounds that they lacked the social [*583] and political institutions to survive in the modern world; n36 the exclusion of large numbers of people--not least women--from political authority because they were not adequately "sovereign individuals;" various forms of religious persecution; and so on. In each of these cases, it is the naturalization of the ontology of sovereignty that has produced the victims of sovereignty discourse; they are those who mark the edges of sovereignty: the non-rational, non-modern, and so on. This "othering" in turn enables campaigns to either convert or destroy them as non-sovereign, as dangerous or feeble. But the examples do not end there. Many of the violences that have accompanied recent nationalist struggles are legitimated through the same logics. The necessity of producing a coherent, shared (and ontologically homogeneous) identity has accounted for exclusions and violences in the name of the greater good: the achievement of sovereignty, the precondition for political subjectivity. n37 Given the particularly violent past of sovereignty discourse (or at least its complicity in this past), to continue to assume, or even triumph, sovereignty's necessity or to continue to believe its own account of its necessary alternatives is highly problematic. It certainly runs the risk of perpetuating further violences under its tattered banner.
The alternative is to align with a transnational cosmopolitan humanism – the perceived risk to digital freedom mobilizes transnational resistance
Beck, 13 - Ulrich Beck is Professor of Sociology at the Ludwig Maximilian University of Munich, Germany (“The digital freedom risk: too fragile an acknowledgment” Open Democracy, 8/30,
The Prism scandal has opened up a new chapter in the world risk society. In the past decades we have encountered a series of global public risks, including the risks posed by climate change, nuclear energy, finances, September 11 and terrorism – and now the global digital freedom risk.
All these global risks (with the exception of terrorism) are more or less part of technological development, as well as of the misgivings usually expressed in the phases of modernization of any respective new technology. And now we have Edward Snowden’s disclosures. All of a sudden, something is happening that turns the global risk – in this case the digital freedom risk – into a globally public problem. However, the risk logic at work here is different from what we have known so far.
Whereas the accidents in the reactors of Chernobyl and later on Fukushima triggered a public debate about the nuclear power risk, the discussion about the digital freedom risk was not triggered by a catastrophe, because the real catastrophe would actually be an imposed hegemonic control on a global scale. The self-image of the information hegemony imposed, however, does not allow for this global risk.
In other words: this particular catastrophe would normally happen without anyone noticing. We have become aware of the potential catastrophe only because a single secret service expert from the United States applied the means of information control in order to tell the world about the global risk, and we are faced with a complete inversion of the normal situation.
Our awareness of this global risk is, at the same time, an extremely fragile one, because, unlike the other global risks, the risk we are dealing with does not focus on, result from or repeatedly refer to a catastrophe which is physical and real in space and time. It rather – and unexpectedly – interferes with something we have taken for granted, i.e. our capacity to control information, which has almost become our second nature. But then, the mere visibility of the matter triggers resistance.
Let us try and explain the phenomenon in a different way: first of all there are some features all global risks seem to share. In one way or another they all bring home to us the global interconnectedness in our everyday lives. These risks are all global in a particular sense, i.e. we are not dealing with spatially, temporally or socially restricted accidents, but with spatially, temporally and socially delimited catastrophes. And they are all collateral effects of a successful modernization, which questions retrospectively the institutions that have pushed modernization so far. In terms of the freedom risk, this includes: scenarios in which the capacity of the nation state to exercise democratic control fails and other cases in which the calculation of probabilities, or insurance protection, etc. do so too.
Furthermore, all these global risks are perceived differently in the different parts of the world. We are faced with a “clash of risk cultures”, in order to offer a variation of Huntington’s concept. We are also faced with an inflation of existential catastrophes, and with one catastrophe threatening to outdo the other: the financial risk “beats” the climate risk; and terrorism “beats” the violation of digital freedom. This is, by the way, one of the main barriers to any public recognition of the global risk to freedom, which, therefore, has not yet become the subject matter for public intervention.
The latter is, clearly, changing today. Yet, the acknowledgement of this fact is a rather fragile one. Who could the powerful player be, with an interest in keeping this risk alive in public awareness and thus pushing the public towards political action? The first candidate to come to my mind would be the democratic state. Alas, this would be like asking the fox to look after the chickens. Because it is the state itself, in collaboration with the digital trusts, that has established its hegemony in order to optimize its key interest in national and international security. Any movement here could, however, constitute a historic step away from the pluralism of nation states towards a digital global state, which is free from control.
The citizen is the second potential player on our list. However, the users of the new digital information media have, actually, become cyborgs. They employ these media as if they were senses, and consider them an integral part of their concept of how they understand and act in the world. The members of the Facebook generation, because of their dependence on social media, are on living within these media, in doing so, relinquish a relevant part of their individual freedom and privacy.
Who, then, could exercise this kind of control? It could be, for example, the Basic Law. Alas in Germany, Article 10 stipulates that postal and telecommunication secrecy is sacrosanct. That sounds like a phrase from a world long gone, and by no means fits the communication and control options provided by a globalized world. In other words: Europe, for example, provides excellent supervisory agencies, a whole range of institutions who try to assert fundamental rights against their powerful opponents, e.g. the European Court of Justice, data protection officers, and parliaments.
But paradoxically enough, these institutions fail, even if they work. Because the means of defence they have at hand are restricted to national territories. While we are dealing with global processes, they are bound to use the tools of intervention developed in the last century. This applies, by the way, to all global risks: The national answers and the political and legal instruments our institutions offer can no longer meet the challenges posed by the global risk society today.
All this might sound very pessimistic. Yet, we must go one step further and ask, whether we – social scientists, normal citizens, and users of digital tools – know the right terms in order to describe how profoundly and fundamentally these are transforming our societies and politics. I believe that we lack the categories, maps or compasses we need to navigate the New World. This, again, corresponds to the situation in the global risk society at large. Successful modernization and an escalating technological evolution have catapulted us into fields where we may and must act, without providing us with the vocabulary we need to adequately describe or name these fields and our options for action.
An example might help explain our position concerning the freedom risk. We tend to say that a new digital empire is coming into being. But none of the historical empires we know – neither the Greek, nor the Persian, nor the Roman Empire – was characterized by the features that mark the digital empire of our times.
The digital empire is based on characteristics of modernity which we have not yet truly reflected upon. It does not rely on military violence, nor does it attempt to integrate distant zones politically and culturally into its own realm. However, it exercises the extensive and intensive, profound and far-reaching control that ultimately pushes any individual preference and deficit into the open – we are all becoming transparent.
The traditional concept of the empire, however, does not cover this type of control. In addition, there is an important ambivalence: We provide major tools of control, but the digital control we exercise is extremely vulnerable. The empire of control has not been threatened by a military power, or by a rebellion or revolution, or by war, but by a single and courageous individual. A thirty year-old secret service expert has threatened to topple it by turning the information system against itself. The fact that this kind of control seems unfeasible, and the fact that it is much more vulnerable than we imagine, are the two sides of one and the same coin.
The individual can, indeed, resist the seemingly hyper-perfect system, which is an opportunity that no empire has ever offered before. The brave can resort to counter-power, if they choose to offer resistance on the job. One of the key questions is, therefore, whether we should not oblige the major digital companies to legally implement a whistleblower union and, in particular, the duty of resistance in one’s profession, maybe first on a national scale, and subsequently at European level, etc.
However, John Q. Citizen – unlike Snowden – does not know much about the structures and the power of this so-called empire. The young Columbus travels towards the New World and uses social networks as an extension of his communicating body. The world vision of the new generation incorporates the benefits offered – be it with respect to the organization of protest movements, to global communication, or to digital love. From all we can see, the young do not fear being controlled by the system.
An important consequence becomes evident here. How we assess the risk posed by the violation of freedom rights differs from our assessment of a – perhaps health-related – violation as a consequence of climate change. The violation of our freedom does not hurt. We neither feel it, nor do we suffer a disease, a flood, a lack of opportunities to find a job, and so on. Freedom dies without human beings being physically hurt. The power and legitimacy of the state are based on the promise of security. Freedom comes or seems always secondary. Being a sociologist, I am convinced that the freedom risk is the most fragile among the global risks we have experienced so far.
What should we do? I suggest that we formulate a kind of digital humanism. Let us identify the fundamental right of data protection and digital freedom as a global human right, which must prevail like any other human right, if needs be against all odds.
Is a lesser approach feasible? No, there is no lesser goal. Currently we are being told to apply the new methodologies of encryption in order to protect us from attacks by those who want to track us. This approach, however, implies the individualization of a problem that is, in fact, a global one. And the true catastrophe is, as we have seen, that the catastrophe disappears and becomes invisible, because the control exercised is becoming an increasingly perfect one. This happens to the extent to which our reaction in view of the imminent death of freedom remains an exclusively technical and individual one.
We lack, indeed, an international body to enforce such claims. In this respect there is no difference between the freedom risk and the risk posed by climate change. The litany has always been the same: The nation-state cannot do it. There is no international player who can be addressed either. But there is general concern. The global risk has an enormous power of mobilization that goes far beyond what we have ever had before, e.g. the working class. A crucial factor would be to politically combine the unrest that has activated social movements and political parties in different countries to varying degrees, in order to push them towards the idea mentioned above.
But, is this the way to implement standards on a global scale? The permanent reflection about the dangers for friend and foe alike could, indeed, trigger the creation and implementation of global norms. The sense of what is right or wrong with respect to global norms would result ex post from a global public shock about the violation of these norms. We are bound within a historical development that brings us to this point time and again: We need a transnational invention of politics and democracy.