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This paper conceptualizes scandals as a special type of discourse in which the legitimacy of institutions or practices like surveillance is in question. This forces surveillance advocates to engage in legitimacy management (Suchmann 1995). They therefore adopt legitimization strategies that can be observed. This paper presents a framework for the study of surveillance legitimizing strategies in scandal discourses that can be used for future cross-case comparisons. The aim is to analyze how the legitimacy of surveillance practices is maintained or repaired by surveillance advocates when it is contested in times of a scandal. The research questions are, what rhetorical strategies are used to legitimize surveillance and to prevent the scandal from escalating? The case that is studied is the reaction by the German federal Government between June and October 2013. Because of the Federal Election in September that year and the strong notions about privacy and data protection within Germany, this discourse is especially relevant. The surveillance legitimizing practices follow an escalation logic: from denial of knowledge, denial of participation, acknowledging of limited participation to complaining about the monitoring of Angela Merkel’s cellphone.

This article analyzes two cryptography discourses dealing with the question of whether governments should be able to monitor secure and encrypted communication, for example via security vulnerabilities in cryptographic systems. The Clipper chip debate of 1993 and the FBI vs. Apple case of 2016 are analyzed to infer whether these discourses show similarities in their arguments and to draw lessons from them. The study is based on the securitization framework and analyzes the social construction of security threats in political discourses. The findings are that the arguments made by the proponents of exceptional access show major continuities between the two cases. In contrast, the arguments of the critics are more diverse. The critical arguments for stronger encryption remain highly relevant, especially in the context of the Snowden revelations. The article concludes that we need to adopt a more general cyber security perspective, considering the threat of cyber crime and state hacking, when debating whether the government should be able to weaken encryption.

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