Finally we’re promised real action over NSA surveillance — but not for the best reasons

“How could NSA not want to listen in on the person rated by Forbes as the second most powerful person in the world after President Obama?” – Former CIA operations officer Joseph Wippl, quoted by AFP on Thursday.

It’s starting to feel like the NSA surveillance saga has entered a new phase. All that controversy over whether it was Snowden or the content of his revelations that merited the most outrage? So last week. Now it’s all about diplomatic fallout and the changes that will bring.

We already knew the U.S. bugged the United Nations, European Union institutions, Brazil’s president and Mexico’s then-president — as of Wednesday, we can be fairly certain that German chancellor Angela Merkel and a few dozen other world leaders have also been monitored. Now we have Germany and France threatening to stop cooperating with U.S. intelligence so closely, and Germany and Brazil preparing a push for new global privacy rules.

Right target, wrong target

Merkel’s tapping seems to have been the tipping point, probably because she’s the second most powerful person in the world. As the Snowden leaks revealed how citizens were being spied upon, the reaction from European leaders was rather mixed – on the one hand, they needed to profess outrage in defence of their voters; on the other, they had ties of varying closeness with American intelligence efforts. Now it is clear that surveillance goes to the highest levels as well as the lowest, the situation has changed.

There’s a good reason for this newfound outrage: you can’t play poker with someone who’s peeking at your hand. Except…

“I am amazed by such disconcerting naiveté. You’d almost think our politicians don’t bother to read the reports they get from the intelligence services.” — Former French intelligence chief Bernard Squarcini on Thursday, denouncing his prime minister’s professed shock at U.S. espionage claims.

Yes, the French spy on the Americans too. What’s more – hang onto your seat here – lots of countries spy on each other, all over the world. True, you’re not supposed to do this to allies, but it’s been happening forever. This is what spies do. But getting caught will get you burned. For Merkel or Brazil’s Dilma Rousseff, it was simply not an option to roll over once it came out that they were being spied upon.

They had to take action, and that’s what is happening now: as Foreign Policy reported late Thursday, Merkel and Rousseff are joining forces to push the UN for a new global right to online privacy. Merkel actually came up with this idea more than three months ago, after it emerged that the U.S. was monitoring the communications of German citizens. It was the run-up to the German elections and Merkel, who had previously defended the NSA’s activities, sprung to life – we’ve heard precious little about those proposals since then, though.

No easy shift

The key proposal is to update the privacy bit of the International Covenant on Civil and Political Rights (ICCPR) to take online activities into account. This is a great idea, and I’m sure there will be lots of countries happy to line up against the U.S. to defend their citizens. However, as I argued at the time, it ain’t that simple. Not only will the existing wording of that section (Article 17) have to be finessed into something that can tackle the sort of deliberate yet untargeted data collection that we now face, but there’s an enforcement issue too. To quote myself:

“… Good luck trying to get the countries of the world to agree on that protocol’s wording, or indeed getting them to stick to what it says. The interpretation of the ICCPR into national law has already been far from uniform – the U.S., for example, has signed and ratified the treaty but has refused to actually change its domestic law to reflect it. Now take into account the differing conceptions of privacy around the world.”

Forget the out-and-out authoritarian regimes out there — will the U.S. change its own policies to abide by new supranational norms? That’s a pretty big question, particularly when there’s nothing to make it do so. After all, what are the other countries going to do? Ban U.S. web services? Even with the most hopeful protectionist dreams of stimulating local tech industries, this is unlikely to be a practical option for a while yet. But despite the many hurdles that lie ahead, it is clear that the U.S.’s rivals and allies alike are fed up and eager for action.

This is how things work. The surveillance of millions of random citizens elicited only annoyance and vague promises, despite the fact that its scale has been a genuine surprise and its justification thin at best. We didn’t expect to be spied upon, and we can’t spy back. Yet it took the less-than-shocking monitoring of world leaders to catalyze genuine fury.

Oh well. Whatever it takes, I suppose.