This is an opinion piece, reflecting the views of Judith Lukoki independently. This is part of a series examining the impact of NSA and technologies used for government monitoring.
We may define a “legal breach” on data security as the one enforced by the Law. Citizens are aware of it and may modify it through the legislative process.
Similarly, we may define a “hidden breach” on data security as the one which is not enforced by the Law. For example, lowering the quality of standards on equipment and internet services security. Citizens do not have knowledge of it and therefore can not amend it according to their needs, or take it into account. European states use legal breaches, while the USA has added hidden breaches.
Hidden breaches may stay hidden for long
We learned, through the documents retrieved by Edward Snowden in the exercise of his function as a consultant, that the National Security Agency (NSA) has voluntarily lowered the level of equipment and Internet services security to implement a monitoring system of the citizens’ daily life already considered unconstitutional in 2011 by a federal court.
The NSA Director, Keith Alexander, explained that this monitoring helps to fight against terrorism. He cited about 54 terrorist plots thwarted thanks to the NSA surveillance program.
To the legislative power
However, during his hearing by the Senate, we learned that these 54 cases were not always plots and have not all been thwarted.
The Congressional Intelligence Committee in charge of the oversight of the activities of the NSA and of the information of each senator who asked for it, systematically refuses to meet their demands. Without the revelations of E. Snowden, the US congress, the legislative branch, would not have knowledge of this unconstitutional surveillance, neither the citizens.
To the executive power
The executive power officially doesn’t know the extent of global surveillance programs on its citizens’ personal and economic life set up by this government agency.
Moreover, President Barack Obama said that he ignored the surveillance of foreign leaders, which also allows to acquire foreign industries trade information. If the executive branch, headed by the President of the USA, is not aware of all monitoring activities, then the NSA is out of control and its activities are actually hidden.
To the judicial power
The Supreme Court can hear cases about constitutionality issues only if a case is brought before it. In the U.S., judges of lowest courts follow the position of the highest court on a case, according to the doctrine of precedent. In the case of surveillance by the NSA, the U.S. courts, the equivalent of our trial courts and courts of appeal, considered, based on the decision Smith v. Maryland from the Supreme Court in 1979 on the monitoring of communications of a person who committed crimes, that the eavesdropping on conversations of all U.S. citizens by the NSA program is not unconstitutional.
The Electronic Frontier Foundation, the organization for the defense of the rights of U.S. citizens, won the lawsuit against the government for the release of the opinion of the Foreign Intelligence Surveillance Court recognizing the supervision of the NSA as unconstitutional. Organizations for the protection of privacy, as Epic and ACLU, seized the Supreme Court, about phone metadata issues.
Thanks to documents revealed by Snowden, they asked the Supreme Court to recognize the unconstitutionality of the government’s mass telephone records collection program. On the 18th of november the Supreme Court refused to hear the case.
To the economic and military allies
Foreign leaders (US business partners) did not have knowledge of the hidden breaches on data security operated by their U.S. ally. These breaches are used in the economic espionage of their industries. The mobile phones of 35 foreign leaders, partners of U.S., were monitored without their knowledge for at least the last 5 years. Hidden breaches may therefore remain hidden to the three powers and the economic and military allies of the U.S. partners.
Revealed by the Fourth State
It is the Fourth State, the media, especially the Internet mass media, which revealed the NSA monitoring program to the public. Edward Snowden gave the documents on the NSA surveillance to Glen Greenwald, a former constitutional lawyer and current journalist, knowledgeable about the NSA and CIA monitoring. Snowden could not trust either the legislative power, representative of the people, but globally misinformed and in favor of the espionage on their day-to-day lives, or the executive power, responsible and against contractuals turned whistleblowers. Indeed, the Fourth State, which role is also to provide a public check on the three branches of a state when these three branches (executive, judicial and legislative) can not check each other, revealed the lack of control of the government agency.
Hidden breaches may be harmful
At international level
Computer hardware and services, which standards have been lowered, are sold worldwide. Confidence in their quality has been destroyed by the NSA.
To the industry
This is why no U.S. citizen can benefit from hardware or IT services which security level was not lowered by the NSA, except by using manufacturers from China. No us employee, top executive, shareholder, celebrity, head of state, can get access to hardware and Internet services that are not known to be accessible to competitors or adversaries.
Hardware protecting the added value of companies and trade secrets of U.S. and its allies can not be technically protected anymore. Since the NSA program, trade secret, management secret, that is to say added value of US and western europe industries are more accessible to hackers of their competitors, such as Chinese.
The NSA surveillance program is wholly harmful to the US and western country industries.
To the exercise of fundamental rights and freedoms
This surveillance is also harmful for the exercise of rights and freedoms of citizens. The NSA is spying on the personal, professional and economic lives of every citizen. Daily telephone conversations are recorded, the email conversations are read, financial transactions are followed, and the Internet too.
By doing this, the NSA prevent every US citizen to exercise his rights and freedoms guaranteed by the Constitution, as well as those of its allies.
To the Nation
The US uses IT equipment and services in order to protect their sensitive and confidential data from U.S. and its allies. Those IT equipments and services are those available on the market, that is to say those which quality of standards has been deliberately lowered by the NSA. Thus, sensitive and confidential data and those of their allies are now more available than ever to their adversaries. The general lowering of standards has also an impact on the security of the Nation.
It is important to recognize that hidden breaches on hardware and IT services security by the NSA does not give 100 % of security and some disadvantages. In fact, it makes citizens’ data, those of the added values of their societies, State classified data more available to their competitors and adversaries. Has Snowden perfectly described the action of the NSA by treating it as the nation’s worst crime in his manifesto?
The question now is: how may companies and industries remain competitive in an environment where their value is stolen (as Google’s algorithms) or made available to their competitors and adversaries?
I will discuss this on following analysis.
Image courtesy See-ming Lee 李思明 SML