In light of recent and ongoing NYT and Guardian revelations about the scale of the U.S. surveillance dragnet, it is worthwhile to consider the challenges the NSA faces in successfully operating such a system. For the purpose of clarity, I’m going to omit discussion of the political and constitutional validity of said surveillance, and focus instead on the technical aspects of the program, and in particular, its major challenges. The purpose of this entry is to document two such challenges.
The Minority Report Problem
The first is simple, and I’m going to call the Minority Report problem. In short: while it is possible to prove that someone has done something wrong, it is impossible to prove that someone won’t do something wrong. Of course, the impossibility of proving a negative has always posed a problem for law enforcement and jurisprudence in general. But until recently, the solution, was fairly straightforward: we prosecuted actions and physical evidence of intent, not mental states. Yet in the post-9/11 world, the presumption of innocence until proven guilty conflicts with stated policy, summed up artfully in the Bush White House warning about Iraq, that the “smoking gun could be a mushroom cloud.” In such a policy environment (which Obama has not actively refuted), punishing a fait accompli isn’t good enough. The very concept of innocent until proven guilty becomes anachronistic, because even a preponderance of evidence requires a physical, evidence-generating act – which is only possible after the act has been committed.
Instead, the diagram below shows the new status quo underlying U.S. surveillance:
Every American begins on the left of this timeline, but of course, not everyone reaches the right side. Historically, once an individual reaches Phase 2, they will always be the target of retaliatory U.S. policy. What’s changed is that now policymakers feel electoral and perhaps moral pressure to ensure that policies capture individual before they reach Phase 2. Cue the development of a massive surveillance network with one goal above all: capturing individuals just before the crime is committed. Of course, what this means is that the surveillance must stop looking at the evil-doers (those who entered Phase 2) and instead direct it’s attention at individuals in Phase 1. Because there is no way to prove that you are not going to move along the timeline to Phase 2, the surveillance state faces the massive challenge that it must monitor and spy on innocent individuals, because those are the only individuals who are of interest if the policy aim of preventing attacks is to succeed.
In this sense, being innocent is the one necessary “signal” (in NSA-speak) for surveillance. Catching someone who’s committed an atrocity is policing job; catching someone who’s about to commit a crime is the true achievement of a surveillance analyst.
The Castle Problem
The second problem the surveillance state phases is a new one: there is no “us” and “them” anymore. I call this the problem of “the castle,” because the crux of the challenge is well summed up by imagining a besieged castle from times gone by.
In the archetype of the besieged castle, there are two clearly delineated parties: those inside the castle, and those outside its walls. For all intents purposes, there is virtually no overlap between the two parties. The walls of the castle, the objects of contention in any siege, both physically and mentally reinforce the separation between the two sides. In the rare instances where there is infiltration, the problem boils down to this: find the spy. This is aided by the fact that, in the past, conflicts had a way of revolving around differences of language, ethnicity, or religion. The Mongol or Norman spy could, in our story, be easily identified by the fact that, if questioned, a well-trained interrogator could quickly determine whether the alleged spy was (literally) an insider or an outsider.
The world has, of course, changed. Today, the most advanced economies in the world are also some of the most culturally integrated. Ironically, the ease with which great powers like the United States have succeeded in spreading Western culture and language means that the world outside America’s borders (walls) is filled with individuals who are literally indescribable – in their language, mannerisms, religion, and cultural touchstones – from the average passenger on the New York City metro. With the ease of travel and the liquidity of global currencies, a relatively liberal visa and immigration regime are all that keeps individuals with different ideologies (the true dividing line of the modern era) out of the country. The walls of the castle have, in effect, been breached.
As a result, though there still may be an “us” and “them,” the comforting fantasy that there is any meaningful way to distinguish between the two is disintegrating, along with the walls that once separated us.
For the modern surveillance state, this means two things. First, living in America is not a sufficient condition for being loyal to America. In the analogy of the Castle, the NSA must be prepared to assume that anyone inside the Castle may poison the water supply or bring down the draw bridge. Secondly, it follows that if geography makes no difference in gauging individual’s actions, then the classic distinction drawn between the domestic role of FBI and the international role of the CIA is no longer useful. It is no surprise that both agencies, in recent months, have been overshadowed by a technologically-savvy hybrid like the NSA, with broad-ranging tools to target individuals in both domestic and international locations. The NSA’s borderless and (seemingly) limitless reach parallel the borderless nature of today’s cultural and ideological loyalties.
If there is one commonality between the Castle and the Minority Report problem, it is this: the idea of true innocence is slowly dying. Being able to say “I have not committed a crime” or “I am an American” increasingly means nothing. That comfort is being replaced not so much by presumed guilt, as by that unique moniker used to describe the twilight between normalcy and criminality: persons of interest.
We are all persons of interest now.