The Empire’s New Clothes

Jay Rosen likes to talk about the Snowden effect — the events that have followed on Edward Snowden’s leaks that lead to more public knowledge.

This is surely a superb example of it. Someone has leaked the US Redlines — US negotiating goals aiming to curtail the German-British proposal to recognize an international right to privacy in electronic communications — to Colum Lynch. Lynch writes,

Publicly, U.S. representatives say they’re open to an affirmation of privacy rights. “The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights,” Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. “We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations.”

But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that “extraterritorial surveillance” and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

The Redlines set three goals:

  • Clarify that references to privacy rights are referring explicitly to States’ obligations under ICCPR and remove suggestion that such obligations apply extra-territorially.
  • Clarify that the focus of the resolution is on “unlawful” or “illegal” surveillance and interception of communications.
  • Clarify that violations of privacy rights to not necessarily violate freedom of expression.

The Redlines, along with a basic understanding of the degree to which the US dominates global telecommunications networks, make it clear how important retaining this advantage is to the American Empire. After all, a limit on extraterritorial spying primarily limits the US and its partners, because no one else has the ability to operate extraterritorially at such scale. And assuming the US can limit the application of privacy to nation-states, then limiting the resolution would exempt all the extraterritorial dragnet that would otherwise be in violation. I’m perhaps most intrigued by US insistence that massive dragnets don’t violate freedom of expression, because while that’s obviously false, the US already depends on that false claim to conduct its dragnet domestically.

This is, then, in addition to being a perfect example of the Snowden effect, it’s also a perfect example of what Henry Farrell and Martha Finnemore have described in their essay on American hypocrisy and what I elaborated on here.

US hegemony rests on a lot of things: the dollar exchange, our superlative military, our ideological lip service to democracy and human rights.

But for the moment, it also rests on the globalized communication system in which we have a huge competitive advantage. That is, one reason we are the world’s hegemon is because the rest of the world communicates through us — literally, in terms of telecommunications infrastructure, linguistically, in English, and in terms of telecommunications governance.

Aggressively hacking the rest of the world endangers that, both because of what it does to our ideological claims, but just as importantly, because it provides rivals with the concrete incentive to dismantle that global infrastructure.

We’re opting to retain the ability to spy on everyone else, all using the increasingly flaccid claim of terrorism, all while pretending that simply endorsing this basic principle of human rights won’t devastate one tool of our Empire.

But as the leak of these Redlines makes clear, we clearly do believe it would undermine the Empire.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

9 replies
  1. Anonsters says:

    Here’s the thing. I’m sympathetic to the goal, but the means used (emphasis on the ICCPR) is misplaced. The ICCPR has always been understood to be the formulation of rights people have against the governments whose jurisdiction they fall under. Article 2(1) makes that eminently clear (emphasis added): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind. . . .”

  2. Anonsters says:

    So, I just read the FP story. Addendum to my above comment:

    I wish they’d separate the two streams of thought. It would be very useful to push for recognition of the application of ICCPR Article 17 (privacy) to the online world. But they also add in, apparently, stuff about extraterritorial surveillance, which doesn’t make a lot of sense in light of Article 2(1), as I mentioned above. By jumbling the two together, they make agreement less likely on the explicit application of Article 17 to online stuff, which seems to me a pretty important baseline to lay down.

  3. C says:

    @Anonsters: I suspect that that is because there is no better format. The ICCPR may be the only vehicle that the Germans and Brazilians see to carry the agreement because it does deal with sovreign obligations and personal rights where no other convention has such aims.

  4. earlofhuntingdon says:

    US administrations have strenuously fought EU-style privacy rules since they were first mooted. The so-called “safe haven”, set up under the Commerce Dept., is a ruse designed to protect US companies from complying with EU rules. Not surprisingly, that haven relies on self-certification, the kind of thing that works so well in monopoly, banking and environmental situations. Not.

    The basic problem is analogous to European labor laws, which US companies loathe: EU countries have them, they protect employees and often impose meaningful penalties that directly affect companies’ bottom lines, they are routinely if not universally enforced. So, too, with EU-style privacy rules. To use another analogy, this time to universal health care, dozens of “advanced” countries have it, it is a routine part of the social compact, it provides comparable or better health care than is available here at a fraction of the cost. US companies don’t want that either; we have Obamacare, an overly complex and expensive sop meant to prop up the existing, exorbitantly profitable and socially unjust system the US has today.

    More importantly, the USG doesn’t want privacy rules. A basic premise of such regimes is that they give individuals rights enforceable against any party, including the government. And this is despite the considerable holes built into them to exclude from their reach law enforcement and national security issues. Any regime, no matter how frail, would disclose the billions private companies “earn” at virtually no cost simply by abusing privacy. It would further disclose that, as with torture and other laws, the US knows no bounds that limit its reach.

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