A while back, I did a traceroute from a home computer in Ottawa to one of my company’s servers in Toronto. traceroute is a venerable networking utility that shows the relays or “hops” that encapsulated packets of data take in traversing the Internet. I was disappointed, but not surprised, to see that my traffic went by way of Chicago. A round-trip at the speed of light that should have taken 0.00235 seconds took 0.00346 seconds instead, about one-and-a-half times slower than the direct trip. If you don’t remember your geography, Chicago is on the other side of two of the Great Lakes from Toronto, while Ottawa is a city just a 40-minute flight away within the same province.
I was not surprised to see my network traffic leave Canada, go to a foreign country, and return to Canada, instead of following a direct line domestically. I know that Canada does not have a national infrastructure plan or policy for the Internet, and merely piggy-backs on top of the infrastructure of the United States. The hands of government regulators have been “off the tiller” for decades, and control of the revolutionary packet-switched network of networks has fallen into the hands of an effective monopoly of old-line, carrier-based telephone and cable television companies. The lack of investment is apparent to every Canadian who gets the latest smartphone, the latest next-generation network, the latest streaming/downloading service, and so forth, six months to a year after everybody else. High speed Internet has become a legal right in Finland, but Canada is nowhere close to matching this wise policy. Watching my packets crawl across the border and then back again is only one of the many effects of living in a country in the second tier of technological innovation.
My disappointment comes from my awareness of the political and social implications of my technological dependence on the United States. When my packets of data and metadata went through Chicago, they landed on a server there. A rich collection of IP addresses, port numbers, host names and other identifiers was gathered and logged. Because the data payload was plain to see, it might have been recorded too. Being physically in the United States, my data and metadata were subject to the laws and regulations of that country. That means that my information was completely subject to the alphabet soup of American warrantless surveillance: FISA, NSA, PRISM, ECHELON, and an unknown number of other programs and entities set up to eavesdrop on communications.
What was true about my packets, which happened to pass through the United States on this occasion, is also true about any Canadian who uses “cloud” services like web mail from the big providers, document storage and network applications to process these documents, music and video services where content is uploaded to central servers — in short, anyone who uses the Internet in the new ways that are coming to predominate.
There is a conflict between the American government’s desire to snoop on Internet traffic, under programs which they claim are justified and which they assert are legal, and the Canadian government’s desire to protect the privacy rights of its citizens, as required under constitutional law. Here, I think that realpolitik trumps all. An overwhelming superpower is determined to intrude on the civil liberties of its own citizens, let alone foreigners, and has little regard for consequences once it has set itself on this course of action. The Internet is no different than air travel has become. Canadians for many years have had to abandon their constitutional rights when they take a flight from Toronto to Vancouver. Because that route enters American airspace at points, personal details which are prohibited from being revealed domestically are betrayed into the hands of a foreign government. The Canadian government is too weak to object, because the consequences of American retaliation for non-compliance are too severe.
When details of the PRISM program of warrant-less surveillance by the National Security Agency were revealed recently, a defence of this program made by the executive branch of government in the U.S. was that the data (but not metadata) of Americans was not a target, when it was within the United States. This left me wondering about my status. After all, I am not an American, and I am not in the United States. What category do I fall under? My data and my metadata are in the United States all the time, so I have to assume they are the intended target of PRISM. The very minimal reassurances given to the U.S. domestic audience do not apply to me, or to any other Canadian, or to Europeans or to any of the other 4 billion users of the Internet who are not citizens of the U.S., physically located there. No wonder the big “cloud” companies are running scared, and are desperately trying to get legal permission to reveal the details of the extent to which they are subject to FISA warrants! Companies like Microsoft, Apple, Google, and Amazon have been going to court to try to remove their gag orders — so far without success. They know that as long as the cloak of secrecy is over them and their participation in domestic spying on Internet traffic, their businesses face an existential threat. What reason does anyone have to believe that their “big data” provider will not betray every detail of their business to the U.S. government? At the moment, they have none.
There is a mis-match between the global, trans-national character of the Internet, and the legal and jurisdictional parochialism of national sovereignty. We live in the global village technologically, but our politics and our laws have not caught up. There are no “foreigners” on the Internet, but the entire premise of institutions like the NSA and programs like PRISM is that there are.
What is most odd and upsetting about the imbroglio over U.S. domestic spy programs is that the U.S. is very much in the lead when it comes to technological innovation, but far behind when it comes to politics. Enthusiasts for the “cloud” make a mistake in ignoring the fact that American irredentism in the political sphere threatens their dreams of a new tech boom. For all the talk about the United States being a new republic, it is in fact an old democracy. Its constitution is 226 years old. The Charter of Rights and Freedoms is only 30 years old in Canada, and the Charter of Fundamental Rights of the European Union was only proclaimed 13 years ago. The salient point in talking about how venerable one’s constitution is is the question of privacy. In Canada and in Europe, people have the impression that the security of the person against unreasonable intrusion by the state extends beyond the physical realms of selfhood, such as the sanctity of ones home, to the virtual realms of selfhood, such as the sanctity of ones data and communications. Privacy rights are felt to be more fundamental and closer to being constitutionally protected, whereas in the United States they are felt to abide by convention and are treated in a more ad hoc fashion. The chances of Americans being able to amend their constitution to enshrine privacy rights for themselves are very slim. The U.S. Constitution has been fetishised to such an extent that it is all but impossible to alter it. This is a country, after all, that has failed to ratify an Equal Rights Amendment whose only principal is that men and women should be treated equally under the law.
For more than a century, the American government has been constrained by the courts and by a regime of legally-obtained warrants in how it can intrude on communications carried out over the telephone and by mail. When Big Brother taps your phone or opens your mail, he has a warrant which will be revealed, in time. A newer means of communication, the Internet, has been held back from these protections in the United States — but not in Canada or in Europe! — by political elites presenting a threat of “foreign terrorism” and a docile and compliant media and public accepting this. The exaggeration of prospective harm by a miniscule and insignificant enemy is not balanced against the real damage done by warrantless surveillance, because it is not in the nature of security and intelligence bureaucracies in their isolated “silos” to do that. Canada and the U.S. are supposed to have a free trade agreement, such that goods and services flow back and forth across the border without constraint. Under the guise of “security”, the United States has brought back protectionism, and there is little the Canadian government can do to stop its partner from turning the clock back to the days of tariff walls and tortoiseshell borders.
I’ve heard that sales of George Orwell’s book “Nineteen Eighty Four” are up 7,000 percent. That’s not surprising, because Big Brother *is* watching you. Talk of the “military-industrial complex,” which President Eisenhower warned about in 1961, is being replaced by talk of the “security-industrial complex.” The Cold War then and the “War on Terror” now are both examples of George Orwell’s perpetual war — wars that are fought without a plan for how they will end. Living in a satellite state of the American empire as I do, I shudder to think that I’m like Winston Smith living in Oceania.
I am not wearing my tin foil hat, yet. I am, though, an even greater skeptic about the “cloud” because of the exposure of PRISM and the extent of warrant-less surveillance in the United States. If I can use my technical competence to keep my data and my metadata out of the hands of a foreign government, I will do that. As a loyal Canadian, subject to my country’s Charter of Rights and Freedoms and honour-bound to defend it, how can I do otherwise? George Orwell’s “Big Brother” and Marshall McLuhan’s “global village” are coming together in a tumultuous and unpredictable fashion. The Internet generation is adopting McLuhan’s tribal base in a virtual collective that is global in scale, while the world’s governments still work in a world of citizens and foreigners — of “us” and “them.” In praising the benefits of the technology, we ignore the harm done by our anachronistic politics at our peril.