Wednesday, 12 June 2013

American snooping and the fuzzy history of legality

So the US government is downloading all your data. In other news, the sky is blue. And gravity means that you don't float off into space.

Excuse me while I don't fall over with shock, as I'm obviously supposed to after the manifold revelations of Edward Snowden, the consultant-turned-whistleblower who's blown the lid off National Security Agency snooping and data-mining. Did anyone really believe that this wasn't happening, at least on an ad hoc basis and on a slightly smaller scale?

In any case, the implications of governments' justifications for their actions are more interesting - and in some ways more frightening - than the mass collection of internet traffic.

Because, to a historian, this is the inevitable outcome of technological innovation - throwing our political and legal processes into a spin, and challenging them to keep up. For consider what the US government said, in order to stay the right side of their own Constitution: we don't spy on Americans on American soil. Now look at what the British government said, in Foreign Secretary William Hague's statement to the House of Commons earlier in the week (above). Basically, he said this (reading in between the lines): we don't ask the NSA for anything that we know or think might have been gathered illegaly under UK or European statutes. But if they send us stuff, well, who are we to ask where it's come from?

Two mirror images - and rather mendacious ones, which mean that if you fall in between the legal spaces, if you stumble into the cracks between jurisdictions (as many non-European and non-US citizens will), then you're fair game.

Globalisation and technical advance has meant the mass rapid transit of peoples; international conflict has made every domestic political space a potential theatre of war; but the law hasn't kept up. Despite extensive and theoretically universal statements of human rights, for instance the UK's Human Rights Act, if you float somewhere out in the ether, without a clear citizenship, without living in your home country, you're much more likely to end up entrapped within the surveillance state - and on spies' radar.

This sounds familar to us historians. It has eerie echoes of the eighteenth and early nineteenth centuries, where new technology - faster ships, more accurate maps, better food and storage - meant that men and women could travel ever faster around the world (especially the Atlantic world). The problem with this was that the law itself became a kind of patchwork quilt, where some evils were legal in some places and not in others. But now those different legal spaces of global empire rubbed up against each other very uncomfortably, just as they do today. Slavery, for so long the acceptable mainstay of the British Caribbean economy, very rapidly became verboten in Britain itself. Who had the right to fight on behalf of the crown - privateers, pirates, private individuals - was highly contentious. Who could, or could not, be pressganged into the British military helped to cause the War of 1812 with the Americans.

The pre-eminent scholars of this legal quagmire - Elizabeth Mancke of the University of New Brunswick, Lauren Benton of NYU, and Marcus Rediker, that innovative chronicler of pirate histories - have all been making this clear for many years. You could go and have a look at their books and articles, if time and budget suit.

What you'll find is this: when technology outruns governance, the outcome is chaos. That's what we face today - legal chaos which benefits the powerful agencies who always want to know more, and often have to be told exactly where the limits of liberty lie.