U.S. Foreign Policy and Cyberspace after Snowden
Snowden’s leaks challenged the idea that U.S. foreign policy supported Internet freedom. The leaks created the impression that the U.S. government exploited the Internet to achieve its own foreign policy and national security objectives. U.S. policy did not recognize privacy of non-U.S. nationals as a constraint on its cyber intelligence, which undercut the rights-based universalism in the Internet freedom agenda. U.S. cyber espionage targeted democracies as well as authoritarian regimes, which diluted the Internet freedom emphasis on democratic solidarity in cyberspace. Pre-Snowden complaints about cyber security threats from authoritarian governments lost force when the U.S. government engaged in activities that undermined cyber defenses at home and abroad. The U.S. call for an open, global Internet governed by multistakeholder processes suffered as countries, including fellow democracies, reacted to Snowden’s leaks with strategies to reduce American power in cyberspace, creating a potential “splinternet” effect.42 The U.S. emphasis on state adherence to norms of responsible behavior in cyberspace rang hollow in light of the nature, scale, and intensity of activities Snowden exposed.
U.S. government responses often confirmed rather than countered the perceptions Snowden’s leaks created around the world. Complaints that neither Snowden nor the media provided accurate accounts of U.S. intelligence activities had difficulty gaining traction for a number of reasons, including (1) the U.S. government often did not provide better information because it remained classified, and (2) Snowden’s leaks contained enough accurate information to leave the U.S. government struggling to explain or defend exposed activities. Announced reforms more in tune with Internet freedom tenets, such as according more protection to the privacy interests of non-U.S. nationals, looked like post hoc damage control when the U.S. had government acted differently before being exposed.
Certainly, the twelve months following Snowden’s initial disclosures became an annus horribilis for U.S. foreign policy concerning cyberspace. Whether the leaks continue to inflict damage on U.S. foreign policy will depend on many factors, including what else Snowden discloses. Analyzing the future for post-Snowden U.S. foreign policy on cyberspace, however, needs to include more than a focus on cyberspace.
There’s an App for That: Multipolarity, Geopolitics, and the Future of Cyberspace Policy
Snowden’s disclosures highlight cyberspace’s importance in world affairs, and they offer glimpses of U.S. behavior, interests, and power in this realm. However, the focus on the United States means the leaks do not provide insights about how cyberspace fits into broader trends in international relations. During the first year of Snowden’s leaks, more indicators have appeared that a multipolar international system now prevails. The most powerful indicators involve, first, increased assertions of power by China, Russia, and Islamic insurgent groups hostile to the United States, and, second, a widely perceived decline in U.S. influence and leadership.43 Although Snowden’s leaks damaged the United States, the most significant events in multipolarity’s multiplying manifestations involve developments related to physical space rather than cyberspace.
Both China and Russia have become more assertive with respect to disputes concerning control of physical spaces. China’s behavior vis-à-vis other Asian countries in controversies about sovereignty over islands has raised fears in the region about Chinese power.44 Russia’s annexation of Crimea and involvement with pro-Russian insurgents in Ukraine likewise prompted anxieties across Europe about Russia’s strategic intentions.45 The continuing U.S. drawdown in Afghanistan, and advances by the Taliban insurgents, created worries about what happens to this strategic region when U.S. military forces are completely gone. The seizure of Syrian and Iraqi territory by the self-proclaimed “Islamic State” threatens to shatter the territorial integrity of these two states, is sending shock waves across the Middle East, and has triggered a large-scale campaign of aerial bombing of Islamic State forces in Iraq and Syria by the United States and allied nations.
Compounding these worries are growing perceptions that the ability of the United States to counter Chinese and Russian power, dangerous insurgencies in strategically important areas, and resurgent extremist terrorism is weakening, in both material terms and political willingness.46 These developments suggest that Asian, European, and Middle Eastern leaders sense the balance of power shifting in ways adverse to the interests of the United States and its allies in countering China, Russia, or extremist threats.47
The “return of geopolitics,”48 with great powers maneuvering for strategic advantage over physical control of territory and political domination of strategic regions, has little to do with the fallout caused by Snowden. For sure, the damage the U.S. government has endured over the leaks has benefited China and Russia, especially in how the leaks created gaps between American behavior and the Internet freedom agenda. These gaps drained U.S. policy of the pre-Snowden emphasis on individual rights and democracy in cyberspace, leaving the impression that the United States acted in the same ways it accused authoritarian governments of behaving, namely infringing on rights domestically, engaging in unrestrained cyber espionage, and developing offensive cyber capabilities and strategies.
What emerges from this equivalence perception is a “third image” outlook—the great powers behave similarly in cyberspace because of the anarchical nature of the international system. For authoritarian governments, a “third image” framing is better than approaches that focus on the domestic political regime and how it treats citizens. For China and Russia, the “third image” application for cyberspace politics converges with the return of balance-of-power thinking created by their geopolitical projections of power. Authoritarian governments prefer international relations when countries perceive that power politics determines the fates of nations.
By contrast, this convergence spells trouble for the United States. Not only has it lost credibility in cyberspace through the Snowden leaks, but its ability to counter Chinese and Russian geopolitical moves, exercise influence in strategic regions where it fought two wars, and confront the dangers posed by the Islamic State and terrorism is also in question. Countries nervous about the balance of power want the United States to project more material power and reverse a perceived withdrawal of American influence. Doing so in a multipolar context will lessen the U.S. government’s ability to push countries on individual rights and democracy issues, which elevates “third image” thinking and handicaps U.S. ideological preferences.
Moving to counter Chinese and Russian geopolitical challenges and Islamic State–related terrorism will require the United States to project its power in different ways, including through enhanced espionage activities and military capabilities. This requirement has to involve action in cyberspace, producing, ironically, the need for the United States not to forgo strategies and capabilities criticized in the wake of Snowden’s leaks. In September 2014, the UN Security Council required UN member states to prevent foreign fighters from joining the forces of the Islamic State,49 and compliance with this mandate will require extensive surveillance and intelligence activities for counterterrorism purposes. In October and November 2014, news reports about possible Russian government involvement in breaches of computer systems of JP Morgan Chase (a major U.S. financial institution), the White House, and U.S. energy companies reinforced the sense of intensifying geopolitical competition in cyberspace.
Even more ironically, the geopolitical and terrorist challenges facing the United States and other countries might mitigate the strategic damage to U.S. foreign policy caused by Snowden. Put another way, Chinese and Russian behavior and government vulnerabilities to extremist terrorism have reminded many countries that the United States remains, for them, the indispensable counterweight in the emerging multipolar balance of power and against the threat of global terrorism. For example, Russia’s actions in Crimea and Ukraine in 2014 constitute more dangerous events for Germany than the spat with the United States over NS
A surveillance in Germany.
Against this reality, U.S. cyber power—glimpses of which Snowden provided—does not appear as threatening as initial reactions to the leaks suggested. Geopolitics and the resurgent terrorist threat help, therefore, put the cyber controversies wrought by Snowden into a different perspective, one that does not see them as damaging U.S. foreign policy strategically for the long term in the context of multipolar, balance-of-power politics and extremist threats posed by the Islamic State.50 Similarly, U.S. officials, confronted with the responsibility of global leadership, might calibrate Snowden-related criticism and calls for reform against the need for the United States to use its cyber power in countering threats from China, Russia, the Islamic State, and other adversaries.
Domestic political debates about cyber issues, however, might interfere with the U.S. government’s thinking clearly about the exercise of its cyber power in the context of emerging security challenges amidst multipolarity. The political climate Snowden’s leaks have created is not conducive to such calculations. Although the most serious changes are likely to happen in domestic surveillance programs, what effects, if any, the NSA controversies will have on U.S. strategic considerations concerning cyber’s role in geopolitics and counterterrorism is not yet clear.
iMorgenthau?
The damage to U.S. foreign policy caused by Snowden’s disclosures is apparent when pre-Snowden U.S. policy on cyberspace is compared to the revealed U.S. behavior and the negative perceptions created around the world. Comparing Internet freedom as a U.S. policy objective and the surveillance, espionage, and offensive activities Snowden exposed highlights why the U.S. government was criticized and lost credibility in cyberspace policy. Emerging geopolitical and terrorist challenges, however, might ameliorate the foreign policy damage Snowden produced because the cyber capabilities displayed in the leaks form part of the instruments of U.S. power needed to counteract the assertiveness of China and Russia and the extremist threats emerging in regions of U.S. strategic interest.
This argument does little to lessen anxieties of those worried about great-power politics running roughshod over cyberspace and transforming the Internet into another technological pawn of realpolitik. The ideas of individual rights, democracy, and multistakeholder governance associated with Internet freedom face an increasingly difficult international political environment for two reasons: the damage to U.S. foreign policy done by Snowden’s leaks and problems geopolitics and terrorism create for the United States and countries that rely on American power for security.
Both U.S. behavior and the unfolding security challenges reduce the prospect that states will treat cyberspace differently from terrestrial, oceanic, air, and extraterrestrial spaces that earlier technological innovations opened for human use. In what Snowden disclosed, and in how balance-of-power politics appears to be evolving, it is increasingly hard not to paraphrase Hans Morgenthau by observing that “statesmen think and act in terms of cyber defined as power.”51
Notes
1. In October 2013, General Keith Alexander, NSA director, stated that Snowden’s leaks will cause “irreversible damage to our nation.” Quoted in Hayley Tsukayama, “In Speech to Telecom Industry, NSA’s Alexander Criticizes Coverage of Surveillance,” Washington Post, October 9, 2013, http://www.washingtonpost.com/business/technology/in-speech-to-telecom-industry-nsas-alexander-criticizes-coverage-of-surveillance/2013/10/09/3c2449c6-30f7-11e3-8627-c5d7de0a046b_story.html. A Department of Defense review of the impact of Snowden’s leaks concluded in December 2013 “with high confidence that the information compromise by a former NSA contractor . . . will have a GRAVE impact on U.S. national defense.” Department of Defense Review Task Force-2, “Initial Assessment—Impacts Resulting from the Compromise of Classified Material by a Former NSA Contractor,” December 18, 2013, 3.
2. Kenneth Waltz, Man, the State and War (New York: Columbia University Press, 1959).
3. These multistakeholder processes include the Internet Engineering Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (ICANN).
4. Hillary Clinton, “Remarks on Internet Freedom,” January 21, 2010, http://www.state.gov/secretary/20092013clinton/rm/2010/01/135519.htm.
5. Tania Branigan, “Google to End Censorship in China Over Cyber Attacks,” Guardian, January 10, 2010, http://www.theguardian.com/technology/2010/jan/12/google-china-ends-censorship.
6. White House, “International Strategy for Cyberspace” May 2011, http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf, 22.
7. Ibid., 9.
8. David P. Fidler, “Internet Governance and International Law: The Controversy Concerning Revision of the International Telecommunication Regulations,” American Society of International Law Insights, February 7, 2013, http://www.asil.org/insights/volume/17/issue/6/internet-governance-and-international-law-controversy-concerning-revision.
9. Terry Kramer, “Remarks on the World Conference on International Telecommunications,” December 13, 2013, http://www.state.gov/e/eb/rls/rm/2012/202040.htm.
10. Mandiant, “APT 1: Exposing One of China’s Cyber Espionage Units,” February 2013, http://intelreport.mandiant.com/Mandiant_APT1_Report.pdf, accessed July 10, 2014.
11. Office of the National Counterintelligence Executive, “Foreign Spies Stealing US Economic Secrets: Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009–2011” October 2011, http://www.ncix.gov/publications/reports/fecie_all/Foreign_Economic_Collection_2011.pdf.
12. White House, “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets,” February 2013, http://www.whitehouse.gov/sites/default/files/omb/IPEC/admin_strategy_on_mitigating_the_theft_of_u.s._trade_secrets.pdf.
13. Steve Holland and Matt Spetalnick, “Cyber Hacking to Overshadow Summit Between Obama and China’s Xi,” Reuters, June 1, 2013, http://www.reuters.com/article/2013/06/02/us-usa-china-idUSBRE95101H20130602.
14. Mary Ellen O’Connell, “Cyber Security without Cyber War,” Journal of Conflict and Security Law 17, no. 2 (2012): 187–209.
15. Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” Guardian, June 5, 2013, http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order.
16. Brief of Amicus Curiae Professors of Information Privacy and Surveillance Law in Support of Petitioner, In re Electronic Privacy Information Center, No. 13–58, August 9, 2013, http://www.law.indiana.edu/front/etc/section-215-amicus-8.pdf. This author and Fred H. Cate participated in this amicus brief.
17. Compare Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013) (stating the program probably violated the Fourth Amendment), and ACLU v. Clapper, 959 F.Supp.2d 724 (S.D.N.Y. 2013) and Smith v. Obama, Case No. 2:13-CV-257-BLW, U.S. District Court, District of Idaho, June 3, 2014 (both holding the program did not violate the Fourth Amendment). Part II.B contains excerpts from the Klayman and Clapper cases.
18. Privacy and Civil Liberties Oversight Board, “Report on the Telephone Metadata Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court,” January 23, 2014, 81. Part II.B includes the executive summary of this report.
19. President Barack Obama, Remarks on Review of Signals Intelligence, January 17, 2014, http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence. Part II.C reprints this speech.
20. Glenn Greenwald and Ewen MacAskill, “NSA Prism Program Taps in to User Data of Apple, Google and Others,” Guardian, June 6, 2013, http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data. Part II.A includes NSA slides Snowden disclosed on PRISM.
21. In 2008, the American Civil Liberties Union argued the FISA Amendments Act “gave the NSA virtually unchecked power to conduct warrantless, dragnet collection of Americans’ international communications.” American Civil Liberties Union, “America’s Surveillance Society,” November 18, 20
08, https://www.aclu.org/national-security/americas-surveillance-society.
22. Clapper v. Amnesty International, 133 S.Ct. 1138 (2013).
23. Privacy and Civil Liberties Oversight Board, “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” July 2, 2014, 8–9. Part II.B includes the executive summary of this report.
24. UN General Assembly, “The Right to Privacy in the Digital Age,” UNGA Res. 68/167, December 18, 2013. Part II.B includes the text of this resolution.
25. International Covenant on Civil and Political Rights, December 16, 1966, 999 United Nations Treaty Series 171.
26. Beth Van Schaack, “The United States’ Position on Extraterritorial Application of Human Rights Obligations: Now Is the Time for Change,” International Law Studies 90 (2014): 20–65.
27. Colum Lynch, “Inside America’s Plan to Kill Online Privacy Everywhere,” Foreign Policy, November 20, 2013, http://thecable.foreignpolicy.com/posts/2013/11/20/exclusive_inside_americas_plan_to_kill_online_privacy_rights_everywhere.
28. Presidential Policy Directive/PPD-28 on Signals Intelligence Activities, January 17, 2014, 5.
29. President Obama, Remarks on Review of Signals Intelligence.
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