Post-Snowden Internet Policy: Between Public Outrage, Resistance and Policy Change

Media and Communication (ISSN: 2183–2439)

2017, Volume 5, Issue 1, Pages 1–6

DOI: 10.17645/mac.v5i1.932

Editorial

Post-Snowden Internet Policy: Between Public Outrage, Resistance and

Policy Change

Julia Pohle

1,*

and Leo Van Audenhove

2,3

Internet Policy Project Group, WZB Berlin Social Science Center, 10785 Berlin, Germany; E-Mail: [email protected]

iMEC-SMIT Studies on Media, Information and Telecommunication, Vrije Universiteit Brussel, 1050 Brussels, Belgium;

E-Mail: leo.v[email protected]

Co-Lab for e-Inclusion and Social Innovation, University of the Western Cape, Cape Town, 7535, South Africa

* Corresponding author

Submitted: 28 Februray 2017 | Published: 22 March 2017

Abstract

This editors’ introduction provides a short summary of the Snowden revelations and the paradoxical political and public

responses to them. It further provides an overview of the current academic debate triggered by the Snowden case and

the documents leaked by him and introduces the articles featured in this issue on post-Snowden Internet policy.

Keywords

digital; intelligence agency; Internet policy; policy change; privacy; Snowden; surveillance; whistleblowing

Issue

This article is part of the issue “Post-Snowden Internet Policy”, edited by Julia Pohle (WZB Berlin Social Science Center,

Germany) and Leo Van Audenhove (Vrije Universiteit Brussel, Belgium).

tion 4.0 International License (CC BY).

It was late May 2013 when a 30-year-old American com-

puter professional walked through the arrivals hall of

Hong Kong International Airport. In his luggage he car-

ried four laptop computers, enabling him to access some

of the US government’s most highly-classified secrets. He

was about to commit the biggest act of whistleblowing in

the history of modern intelligence agencies, to be named

after him: the Snowden revelations.

The man behind the disclosures, Edward Snowden,

had worked with US intelligence agencies since 2006 and

started his job as a subcontractor to the National Se-

curity Agency (NSA) for the companies Dell and Booz

Allen Hamilton in 2009 (Ray, 2016). During that time,

he began collecting data and information on the NSA’s

secret surveillance programmes. Convinced that these

practices were excessive and invasive in nature, he de-

cided to reveal them to the public, as he could not “in

good conscience allow the US government to destroy

privacy, Internet freedom and basic liberties for peo-

ple around the world with this massive surveillance ma-

chine they’re secretly building” (Greenwald, MacAskill, &

Poitras, 2013). During his stay in Hong Kong, Snowden

met with two Guardian journalists, Glenn Greenwald and

Ewen MacAskill, and the documentary filmmaker Laura

Poitras, to whom he consigned thousands of classified

NSA documents. On June 5

, The Guardian started to re-

port on the leaked material. Shortly afterwards, Snow-

den went public of his own accord, arguing that he did

not need to hide, having done nothing wrong.

Over the following months, several other important

news outlets around the world obtained access to the

leaked documents and reported on their content, most

prominently Der Spiegel, The Washington Post, The New

York Times, O Globo and Le Monde. In several countries,

these continuous publications provoked a chorus of out-

rage by policy-makers, the media, civil society activists

and the general public. So far, however, they have not

been followed by effective limitations to state surveil-

lance and better safeguards to protect the right to pri-

vacy. Quite the contrary, most governments—including

Media and Communication, 2017, Volume 5, Issue 1, Pages 1–6 1

those who publicly spoke out against the US practices—

seem reluctant to seriously review their own intelligence

frameworks. Instead, over the last years, many of them

legalised existing practices and strengthened their coop-

eration with the US and other foreign services (see also

Tréguer, 2017).

This “paradoxical mismatch between harsh criticism

and stable cooperation” (Steiger, Schünemann, & Dim-

roth, 2017), meaning the discrepancy between discourse

and policy change, is one of the many important fac-

tors that make the Snowden revelations, their content

and their consequences a highly relevant research topic

for communication sciences. Not only on the political

level but also in academia, the disclosures have acceler-

ated a necessary debate about the future of Internet pol-

icy and the importance of data protection in an increas-

ingly globalised word interconnected by digital infras-

tructures. The intense public and academic discussions

about the documents leaked by Edward Snowden show

that his revelations are unprecedented. Indeed, they pro-

vide insights into a wide network of surveillance tools,

programmes and actors covering at least three different

dimensions: Firstly, they revealed the scale and extent

of surveillance, meaning the massive quantity of the col-

lected data and the vast number of people who are being

systematically surveilled; secondly, they provide exten-

sive information about the kind of data that is being in-

tercepted and collected, ranging from metadata (i.e. who

communicated with whom and when) to the content of

phone calls and emails; and thirdly, they reveal the actual

practices of surveillance, i.e. the different programmes

and cooperation mechanisms that allow for the vastness

of surveillance in place and the integration and process-

ing of the collected data.

Although the Snowden revelations focus on the

NSA as a main actor, they also touch on practices of

the British Government Communications Headquarters

(GCHQ) and the US alliances with other intelligence ser-

vices within the so-called Five Eyes network (compris-

ing Australia, Canada, New Zealand, the UK and the

USA). In addition, they shed light on the US coopera-

tion with European intelligence agencies, such as the Ger-

man Bundesnachrichtendienst (BND) and the French Di-

rection Générale De La Sécurité Extérieure. Furthermore,

the leaked documents demonstrate that the NSA and

its allies not only intercept telecommunication and In-

ternet content and metadata themselves, for instance

through GCHQ’s TEMPORA programme. Via the PRISM

programme, the NSA also accesses and collects Internet

communications from at least nine US Internet compa-

nies, such as Google and Facebook, allegedly in parts

without their knowledge. What was particularly shocking

to many was that the NSA and its allies not only surveilled

non-US citizens domestically and abroad (and US citizens

communicating with foreigners) but also spied on world

leaders and international organisations (Poitras, Rosen-

bach, & Stark, 2014), such as the IMF, World Bank, Hu-

man Rights Watch and Amnesty International, and mon-

itored the preparation of global events, for instance the

2009 Copenhagen summit on Climate Change (Gjerding,

Moltke, Geist, & Poitras, 2014).

It was in particular the surveillance of political and

economic institutions of allied nations that caused inter-

national repercussions. In September 2013, the report

that the NSA had spied on Brazil’s president Dilma Rouss-

eff and the Brazilian oil company Petrobas prompted

Rousseff to cancel her planned US visit and led to the

installation of a parliamentary commission of inquiry

and an investigation by the Brazilian federal police. Simi-

larly, after news broke that the BND gave NSA access to

mass surveillance metadata in Germany and that the NSA

had monitored the communication of Chancellor Angela

Merkel, a parliamentary committee of inquiry on the NSA

was established at the German Bundestag in March 2014,

a committee that has yet to finish its work. As another re-

sponse to these incidents, Germany and Brazil submitted

a joint UN resolution entitled “Right to Privacy in the Digi-

tal Age”, which was adopted by the UN General Assembly

in December 2013.

In spite of the wide-spread indignation by political

actors and civil society, the Snowden revelations have

not led to extensive and tangible policy changes (see

also Steiger et al., 2017). Some of the governments

that found themselves under US surveillance came to

realise—either through further leaked NSA documents

or through their own investigations—that their own in-

telligence agencies have been playing a rather inglorious

role with regard to the revealed practices. Not only had

many of them benefitted from the intelligence collection

by the US services, they often also gathered excessive in-

formation themselves by way of rather dubious methods.

As a consequence, many countries, including the US, im-

plemented surveillance reforms in reaction to the leaks.

Yet most of the reforms rather served to adapt the legal

foundations to the already existing practices or even to

expand the agencies’ authority for surveillance. At the

same time, new oversight powers were limited in scope.

Instead of reforming a system that, according to Snow-

den, has gone out of control, the system has been con-

solidated. The UK, for instance, passed its Investigatory

Powers Act in November 2016 to clarify the investiga-

tory powers of the British law enforcement and intelli-

gence agencies (Hintz & Dencik, 2016). But rather than

limiting these powers, the act has been accused of legal-

ising a “range of tools for snooping and hacking by the

security services” that were already being used but pre-

viously ruled illegal by the investigatory powers tribunal

(MacAskill, 2016). Snowden himself supported the civil

society objections against the passed act by commenting

that “the UK has just legalised the most extreme surveil-

lance in the history of western democracy. It goes further

than many autocracies” (Snowden, 2016).

Of course, the reform of intelligence legislation was

not the only response triggered by Snowden’s disclo-

sures and the wider debate on mass surveillance. Over

the last years, we could witness a variety of changing

Media and Communication, 2017, Volume 5, Issue 1, Pages 1–6 2

practices, policies and discourses that can—in one way

or another—be related to post-Snowden contentions.

In the light of the role of big Internet corporations for

signals intelligence, it is interesting to interpret recent

changes in these corporations’ policy and encryption

practices in the post-Snowden context, for example their

resistance to granting authorities access to their data and

devices, as witnessed in the struggle between Apple and

the FBI over unlocking an iPhone in spring 2016 (see the

contributions of Kumar, 2017; and Schulze, 2017). Simi-

larly, it is possible to see a connection between the ac-

tions of policy makers and the changing role of national

and international courts, such as the European Court for

Human Rights, as last institutional resorts against govern-

mental and corporate power in the digital sphere. In ad-

dition, the debate about the NSA documents also led to

new practices and different kinds of cooperation on the

side of civil society, for instance in the form of national

and transnational activist movements against Internet

surveillance or resistance tactics by Internet users allow-

ing them to bypass censorship and surveillance (see Er-

moshina & Musiani, 2017). Lastly, the actions of Edward

Snowden, who gave up a comfortable life in Hawaii in ex-

change for criminal charges and temporary exile in Rus-

sia, and the harsh response by the US administration pro-

voked the (re)emergence of national and transnational

debates on the importance and challenges of whistle-

blowing. While the US authorities filed charges against

Snowden under the 1917 US Espionage Act, he received

important awards in other countries, such as the German

Whistleblower Prize in August 2013. This led to a new

level of public and political awareness regarding the lack

of sufficient whistleblower protection in many countries

around the world, including the most liberal democracies

(see also Brevini, 2017).

The many processes and discussions triggered by the

Snowden revelations are also reflected by the growing

body of academic literature that has emerged since the

first disclosures in summer 2013. This literature can be

roughly grouped into four research streams, each fo-

cussing on a different aspect of the manifold issues at

stake in the post-Snowden environment:

Unsurprisingly, the first and largest stream of re-

search is marked by an analytical interest in surveillance

and its societal repercussions. Not only in law but in

many other social sciences, the Snowden revelations led

academics to analyse the legal aspects of surveillance,

be it the existing legal frameworks and their reformation

(e.g. Geist, 2015; Ni Loideain, 2015) or the general rela-

tionship of surveillance, law and civil liberties, including

the right to privacy (e.g. Clement & Obar, 2016; Lippert,

2015; Lucas, 2014; Paterson, 2014). Others reflected

on the interplay between technology, surveillance and

power (e.g. Bauman et al., 2014; Lyon, 2014, 2015) and

the broader societal and (geo)political consequences of

mass surveillance (e.g. Aust & Ammann, 2016; Giroux,

2015; Keiber, 2015; Marsden, 2014). Closely related are

also abstract discussions and empirical analyses of the al-

leged contrast between security and liberty (e.g. Lieber,

2014; Lowe, 2016).

Besides the political and academic discussions on

mass surveillance and privacy, the second stream of post-

Snowden research focusses on the public reaction to the

NSA revelations. While a number of authors analysed the

reporting on Snowden and competing discourses in na-

tional and international media (e.g. Branum & Charteris-

Black, 2015; Di Salvo & Negro, 2016; Madison, 2014), oth-

ers used diverse conceptual approaches to assess how

Snowden and his leaks were framed in social media (e.g.

Marres & Moats, 2015; Qin, 2015) and what effect his

revelations had on democratic discourse and free expres-

sion within these digital channels (Stoycheff, 2016).

Moving away from the surveillance nexus and the re-

sponses triggered by the Snowden disclosures, the third

stream of research deals with the highly political issues of

civil disobedience in general and whistleblowing in par-

ticular. In this context, many authors discuss the partic-

ularities of the growing phenomenon of digital disobe-

dience (e.g. Lagasnerie, 2016; Scheuerman, 2016), the

problem of counter-surveillance as a form of resistance

(Gürses, Kundnani, & Van Hoboken, 2016) and the ques-

tion whether Snowden’s deeds can be characterised as

acts of civil disobedience (Brownlee, 2016; Scheuerman,

2014). Focussing on whistleblowing as a particular form

of resistance, other contributions range from historical

perspectives on national security leaks (Gardner, 2016;

Moran, 2015) to the problem of legal protection (e.g. Pa-

quette, 2013; Peffer et al., 2015) and the question of how

acts of whistleblowing are conducted, framed, and per-

ceived (e.g. Contu, 2014; Rios & Ingraffia, 2016). Others

again centre on the increasingly politicised issue of trans-

parency and its role in modern societies (e.g. Borradori,

2016; Fenster, 2015; Flyverbom, 2015).

The fourth and last research stream takes a much

broader perspective than the others by looking at the

Snowden revelations in the larger context of national and

global Internet policy (e.g. Deibert, 2015). Under this um-

brella, scholars closely followed the changing perception

of and policy towards the Internet as a political space,

for instance in terms of cybersecurity (e.g. Lee, 2013) or

global Internet Governance (Nocetti, 2015).

The contributions of this thematic issue add to all

of these research streams through conceptual consider-

ations and empirical case studies. With their focus on

state and non-state policy, however, they contribute to

one of the currently understudied repercussions of the

Snowden contentions, namely the concrete changes in

Internet policy and their interrelation with specific dis-

courses, issues and actors in the aftermath of the Snow-

den revelations.

The first two articles explore how two national gov-

ernments that were equally involved in parts of the prac-

tices revealed by the NSA documents responded to pub-

lic demands for more surveillance oversight. Steiger et al.

(2017) assess German parliamentary and governmental

documents to discuss the misfit between the public out-

Media and Communication, 2017, Volume 5, Issue 1, Pages 1–6 3

rage over the Snowden revelations and the actual re-

form of policies and practices in Germany. They identify

recurrent elements in parliamentary and governmental

discourses facilitating the authorities’ reluctance to act,

such as the tense relationship between freedom and se-

curity, the priority given to digital sovereignty and post-

privacy narratives. Félix Tréguer (2017) also analyses the

response of a European country, in this case France, to

the debate on mass surveillance, using a different con-

ceptual and methodological approach and a different fo-

cus. His case study of post-Snowden intelligence reform

in France examines how the gap between existing le-

gal frameworks and actual surveillance practices is being

closed through new legalisation. After the Paris attacks

of January 2015, the French government passed the In-

telligence Act, which can be considered the most exten-

sive piece of legislation ever adopted in France to regu-

late secret state surveillance. Although the paradoxical

practice to legalise surveillance practices in the midst of

post-Snowden contention is not unique to France and

can be viewed as part of a wider international trend,

Tréguer also sees it as a chance for the emerging privacy

movement to use these legalisation strategies to roll back

surveillance practices.

Shifting the focus away from liberal democracies

renegotiating the limits of mass surveillance, two contri-

butions focus on the country that since 2013 has been

granting exile to Edward Snowden although its own In-

ternet approach is often heavily criticised for running

counter to Snowden’s fight for transparency and free-

dom. Taking a holistic and historical perspective on Rus-

sian information and Internet policy, the contribution

of Nathalie Maréchal (2017) draws a picture of the net-

worked authoritarianism practiced in Russia. The author

considers Russia’s domestic information controls policy

and its role in global Internet governance processes as

part of its foreign policy seeking to (re-)establish itself

as a major geopolitical player. She therefore argues that

the geopolitics of information will become increasingly

important in the years to come. The contribution by Kse-

nia Ermoshina and Francesca Musiani (2017) looks at Rus-

sian Internet policy from a different angle by assessing

the country’s state-centred style of Internet governance

and users’ way of dealing with it from a perspective of Sci-

ence and Technology Studies. Thus, it not only addresses

the Russian way of “Internet governance by infrastruc-

ture” but also analyses the various resistance tactics that

Russian users have developed to counter these gover-

nance mechanisms. Investigating individual and collec-

tive forms of resistance, the article focuses on the mate-

riality of tactics employed, spanning from infrastructure-

based countermeasures to the migration of hardware

and people.

The following two contributions to this thematic is-

sue are shifting the focus from the relations between gov-

ernments and civil society towards government interac-

tion with the private sector. In a comparative analysis,

Matthias Schulze (2017) contrasts two cryptography dis-

courses from 1993 and 2016 to analyse the competing

discourses on whether the government should be able

to monitor secure and encrypted communication. Based

on the securitisation framework, the author assesses

how security threats were constructed within these dis-

courses and compares the arguments of proponents and

critics of exceptional access. The contribution of Priya

Kumar (2017) likewise focusses on private-sector actors

and their concern for data protection. His contribution in-

vestigates the changes in the privacy policies of the nine

companies involved in the PRISM programme plus Twit-

ter in order to trace how company practices concerning

user information have shifted over the last years. Show-

ing that company disclosure of tracking for advertising

purposes increased, the author concludes that public de-

bates about post-Snowden privacy rights cannot ignore

the role that companies play in legitimizing surveillance

activities to create market value.

The implications of tightening security legislation for

journalists and the lack of whistleblower protection for

their sources are at the core of Benedetta Brevini’s (2017)

contribution. Analysing the changing legal framework in

Australia after the Snowden leaks, the author interprets

the changes as a threat to the work of journalists who in-

creasingly find themselves the targets of bulk data collec-

tion. Brevini concludes with a warning that to Australian

journalism, a space for agency to resist public metadata

retention’s schemes might be needed more than ever—

but is missing.

Acknowledgements

The publication of this issue was financially supported by

the Open Access fund of the Leibniz Association and is co-

sponsored by the Communication Policy and Technology

(CP&T) Section of the International Association for Me-

dia and Communication Research (IAMCR). We thank the

authors of this issue, the staff of Media and Communica-

tion and the many external reviewers who commented

on the manuscripts submitted for this issue.

Conflict of Interests

The authors declare no conflict of interests.

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About the Authors

Julia Pohle is a senior researcher in the Internet policy project group at the WZB Berlin Social Science

Center. She holds a PhD in Communication Studies from the Vrije Universiteit Brussel. She currently

serves as Vice-Chair for the Communication Policy and Technology Section of the International Asso-

ciation for Media and Communication Research (IAMCR) and as a member of the Steering Committee

of the German Internet Governance Forum (IGF-D). Her research focuses on Internet policy, global

communication governance, Science and Technology Studies and digitalisation.

Leo Van Audenhove is a professor and head of department at the Department of Communication

Studies of Vrije Universiteit Brussel. He is a researcher at iMEC-SMIT—Studies on Media, Innovation

and Technology at the same university. He is extra-ordinary professor at the University of the Western

Cape. In 2013, he was instrumental in setting up the Knowledge Centre for Media Literacy in Flanders,

of which he subsequently became the director. The centre was established by government as an inde-

pendent centre to promote media literacy in Flanders. His research focuses on Internet governance,

media literacy, e-inclusion and ICT4D.

Media and Communication, 2017, Volume 5, Issue 1, Pages 1–6 6