Why Edward Snowden's treaty to stop mass surveillance is doomed

Edward Snowden and his supporters aren’t asking for anything radical. Last week, the whistleblower and a number of his supporters put forward a proposal to curb mass state surveillance and establish international standards for whistleblower protections. The Snowden Treaty, as it’s dubbed, is an answer to the UN privacy chief’s call for a sort of Geneva Convention on privacy protections — a counter to the current furtive agreements maintained between powerful nations, which uphold global surveillance systems.

Snowden is right about the need for explicit international agreement. Without the assurance that all world powers will cooperate to curtail their mass surveillance practices, and commit to defending whistleblowers, no one world power will rein in its spycraft. Too much geopolitical leverage would be lost if every other country continued to mass surveil at pace. This is the sort of blunt prisoner’s dilemma that treaties try to overcome, forcing the hand of international governments to act in net best interests. The problem, of course, is that human rights treaties are too often treated as if they were made to be broken. We don’t even know if any countries want to sign onto the Snowden Treaty. Beyond that, if we, the emailing, texting, tweeting, online-living denizens of the surveillance state rely too much on proposals like Snowden’s to protect our privacy, we fall into a prisoner’s dilemma of our own.

Just because the Snowden Treaty is unlikely to be a watershed moment for mass surveillance does not mean it isn’t worthwhile. The whistleblower and his supporters are tactically trying to shift the discourse on mass surveillance into a rights-based framework, and away from arguing for piecemeal legislation. The Snowden Treaty demands a robust structure within and against which laws on privacy and surveillance can be formed and checked. But it’s worth noting that state powers have for some time been merrily contravening a foundational international agreement on respecting the right to privacy. Article 12 of the Universal Declaration of Human Rights demands that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation.” Maybe the Snowden Treaty, in the long wake of the whistleblower’s NSA leaks, will update and renew discarded commitments to that 1948 document.

But totalized surveillance did not creep in because governments simply forgot that privacy had been enshrined as a human right. Repeating ad nauseam that privacy is a human right will be about as effective in shifting government action as five people holding placards outside the White House — having the right message is not nearly enough. When it comes to international government action regarding privacy protections, a human rights discourse might be less effective than something more akin to atomic diplomacy. The geopolitical calculus is less deadly, of course, but as with international cooperation over nuclear non-proliferation, when it comes to curtailing mass surveillance, we are asking governments to cede a global power tool. And, as with nuclear weapons, the growth of government mass surveillance has been situated in a pretext of national security — the perennial trump card for violating human rights.

The Snowden Treaty will only succeed in curtailing mass surveillance if it’s used to assure powerful signatory states that the power equilibrium currently in place based on vast mutual spying will not be upturned. It’s a delicate logic of nuclear-style diplomacy, which recognizes that no nation state willingly puts itself at a power disadvantage. In this way, the problem of mass surveillance echoes the prisoner’s dilemma in which international action on climate change is embroiled. No one country wants to incur the financial burden and bureaucratic demand of lowering carbon emissions if other governments won’t act in environmentally minded concert. The rational choice if you’re a polluting nation is to keep polluting — if every other country stops polluting, then the environmental damage is considerably lessened anyway, and if every other country continues polluting, too, then at least you haven’t lost out by individually incurring the cost of going green and the environmental apocalypse continuing apace anyway.

That’s why they call it a prisoner’s dilemma — the most rational decision for an individual actor is to not cooperate towards a net good. In the game, Prisoners A and B have been busted for committing a petty crime, which the cops know they’ve done, and are being held in two separate interrogation rooms. They can’t know what the other is saying, but each has an opportunity to confess or stay silent. The investigator is looking to stick some heavier charges on either one of the prisoners, so puts a premium on snitching. If both A and B confess and snitch on each other, both will serve two years. If A confesses and snitches but B stays silent, A is rewarded and can walk free but B is stuck with the heavier charges and gets 3 years (and vice versa). If both remain silent, the cops can only stick them with one year each. In terms of minimizing net prison time, neither should betray, they each serve one year. But in terms of self interest, not knowing the other prisoner’s decision, it is more rational to snitch: with snitching, you face either zero years or two; with staying silent, you face either one or three.

So to apply this to international decisions about surveillance: if one country stops spying, and the other keeps spying, the spying country has a large power advantage; if both stop, the net good of privacy protection is maximized, but with the curtailing of the disturbing, insidious control mass surveillance gives a government over its citizens and its fellow nations. If both keep spying, privacy is not protected but at least one country isn’t at a disadvantage for having forgone surveillance powers. Without knowing for sure that other countries will end their mass data collection, each opts to surveil.

This changes, however, when the same problem is presented again and again, and the players, based on observing each other’s previous actions, tend towards eventual cooperation. But with issues like mass surveillance and climate change, where the consequences and outcomes are both more nebulous and grave than any simple game theory puzzle, we can’t wait for, or necessarily expect eventual, cooperation.

So far, I’ve focused only the level at which Snowden aims his treaty — namely, international powers. Patently, our current state of mass surveillance goes beyond government dragnets. Curtailed government surveillance matched with total corporate surveillance would not a state of privacy make. It’s no flaw in the Snowden Treaty that its remit aims within international law and diplomacy. But the proposal, at best, only addresses one of the prisoner’s dilemmas involved in our state of surveillance. If we really want to stand behind Snowden, that means taking ourselves to task, too, as prisoners playing the game. We know, for example, that if a critical mass of us used simple, best privacy practices, or even better privacy practices, it would constitute a considerable wrench in the works of brute force data collection. This alone could force governments to re-evaluate the cost benefit analysis of their “gotta collect it all” strategy. But waiting for everyone to take small actions with us, none of us acts.

It’s an indicting version of the prisoner’s dilemma: the inconvenience of using Tor or an encryption program for communications is minimal, while a considerable blow could be delivered to mass surveillance if better privacy practices were normalized. But I say this as a hypocrite, who writes unencrypted emails and texts as standard. Regardless of whether we have nothing to hide, we have privacy to protect, and our online behavior should echo this. But this isn’t an “every little bit helps” kind of problem. As with better quotidian environmental practices, only mass collective action is significant. So we end up with a quite embarrassing tautology: if everyone does it, it’ll be done; if they don’t, it won’t.