Friday, October 04, 2013

BBC Newsnight, Greenwald, Snowden & Entick v Carrington

The BBC finally got round to doing what they might consider an in-depth feature on the Edward Snowden affair last night on Newsnight. I came across it by accident since I rarely watch Newsnight any more but I'd recommend watching it in full before it times out on the iPlayer in 7 days for three reasons -
  • firstly Glenn Greenwald's powerful and passionate critique of the behaviour of the UK & US governments and the weak journalism of the BBC on the Snowden affair
  • secondly it is a classic example of the BBC's determination to report in a way that they perceive to exhibit "balance" i.e. that there are two and only two diametrically opposed sides to every story. The God of 'balance', it seems, trumps objectivety and evidence at the beeb.
  • Ross Anderson's contribution
Kirsty Wark, opening the programme by asking if Snowden's action was "a noble strike against an authoritarian establishment OR an act of vandalism against our national security", gave a taste of things to come. The introductory sequence of the show (I use that word deliberately) goes on to present a video extract of former GCHQ chief, Mr David Ormand, breathlessly saying "not even the KGB in its heyday of  Philby and Burgess and Maclean in the 1950s could have dreamt of acquiring 58,000 highly classfied intelligence documents." With the theme music still running Ms Wark then says they have an exclusive interview with Glenn Greenwald, visible on the studio screen in the background.

There follows 11 to 12 minutes of BBC "balanced" reporting by security correspondent Gordon Corera. You know the sort of thing. Is Snowden the good guy or the bad guy? Are the UK & US governments doing mass surveillance as the good guys to protect us all or the bad guys and spying on us all? All sadly rather superficial.

Ross Anderson is very clear in pointing out that the NSA's actions have more than undermined internet security, they have threatened to break the internet; and quite amusing when explaining that security experts around the world have been astonished that the UK and US governments have managed to build big complex information systems that actually work.

Actually Ross's contribution to that first 12 minutes is probably the one bit of that part if the show worth retaining. Though in fairness to David Ormand, when he says the police and intelligence services need a powerful capability to get at the communications of terrorists, pedophiles and other nefarious actors he's absolutely right, they do. But you don't make that job easier with a mass surveillance - blanket data collection & retention - approach. It has to be done through an intelligence led, targeted data preservation regime. Gordon Corera didn't even present this question to Mr Omand or if he did it didn't make the final cut of the show.

Ross Anderson also explains that the Guardian "revelations in early September that the NSA had had a major covert programme to compromise internet security standards and products were a 9/11 moment" for security specialists globally; and the the goal of the NSA and GCHQ is to ensure they can break anyone's privacy at any given time and interfere with any transaction at any given time. In order to do this they have compromised in various ways many of the protocols on which the internet relies. Yet when you introduce these vulnerabilities they are not just available for the spies to use, they are available to the bad guys too. You can't make people safe by making the communications infrastructure they rely on less secure.

I think Ross is worth quoting in full over his and others' surprise at the NSA and GCHQ's apparent technical competence.
"They pushed it even further than we thought they would. The surprising thing to us was that there appear to be occasional pockets of competence within the NSA and GCHQ. Many of us thought for many years that the real secret was that, like other large public sector IT projects it didn't work; and there was really nobody there. But to find that they had built this machine and got it working was an eye opener."
Glenn Greenwald is introduced at 12 minutes 35 seconds into the programme. It's difficult to capture the passion and power of Mr Greenwald's contribution in a blog post, so I'm not going to try. Instead I'll just point you to the video on YouTube and the Newsnight website. Just to be clear, I don't agree with or endorse the YouTube video poster's opprobrious labelling of Ms Wark or former security minister, Pauline Neville-Jones, as apologists. Given how badly prepared Ms Wark came across in the Greenwald interview, I'm not sure how long the BBC will allow it to remain available on YouTube but here it is for now:

Do watch the 25 minute or so full segment on the Newsnight website whilst it remains available.

Just some final thoughts for readers who are seduced by the argument that the only way for governments to catch the bad guys is to vacuum up the comms data of everyone, could I refer you to the case of Entick v Carrington (1765) 19 Howell’s State Trials 1029, 2 Wils 275, 95 ER 807, Court of Common Pleas.

Nearly 250 years ago, Lord Chief Justice Camden decided that government agents are not allowed to break your door down and ransack your house and papers in an effort to find some evidence to incriminate you.

The short version of the story is that a member of the government, Lord Halifax, had taken a dislike to Mr Entick and ordered Mr Carrington and some of his king’s messengers buddies to dig the dirt to bury the problem with a charge of seditious libel. In court, government lawyers argued that most people subjected to the kind of over-exuberant behaviour exhibited by Carrington & co. were happy to comply and it was rather irritating that Mr Entick was complaining about it. And besides, if the government didn’t have the authority to forcibly extract evidence how could it possibly be expected to deal with terrorists, or in the parlance of the time, purveyors of sedition?

Lord Chief Justice Camden, who had form having sided with another government labelled terrorist, MP John Wilkes, 2 years earlier, didn’t buy the argument. “This power” said he “so claimed by the Secretary of State is not supported by one single citation from any law book extant.”

The good judge also declared personal papers to be one’s “dearest property”. I suspect he might view personal data likewise in the internet age.  I understand Lord Camden's reasoning in Entick became the inspiration behind the 4th Amendment to the US Constitution which offers protection from unreasonable searches and seizures.  The point is, however, that fishing expeditions of the type that the GCHQ and NSA are engaged in fundamentally undermine the rule of law.

Update: Early editions of Bailey, Harris & Jones: Civil Liberties Cases, Materials and Allen, Thompson & Walsh Cases and Materials on Constitutional and Administrative Law, real old books I still have on my shelf, were the sources I referred to in order to double check my ancient memories of Entick v Carrington.

Update 2: BBC Newnight has now posted the full 33 minutes 26 seconds of the Snowden report and interviews to YouTube. Kudos to them

Newsnight's editor Ian Katz has responded to Jay Rosen's criticism of the piece. Former BBC news chief Richard Sambrook also thought "it was an ill-thought through interview and consequently weak. More broadly, for at least 25 years British broadcasting has been enthralled by the adversarial, devil’s advocate, form of interview. Journalists careers have been made and interviewees careers destroyed by it. Personally, as a form, I think it is all but exhausted and is increasingly tiresome – and seldom reveals as much as a more forensic approach could achieve."