Data and Goliath (14 page)

7

Political Liberty and Justice

I
n 2013, the First Unitarian Church of Los Angeles sued the NSA over its domestic spying,
claiming that its surveillance of church members’ telephone calling habits discouraged
them from banding together to advocate for political causes. The church wasn’t just
being paranoid. In the 1950s and 1960s, the FBI monitored its minister because of
his politics. Today, the church is worried that people, both Americans and foreigners,
will end up on watch lists because of their association with the church.

Government surveillance is costly. Most obviously, it’s extraordinarily expensive:
$72 billion a year in the US. But it’s also costly to our society, both domestically
and internationally. Harvard law professor Yochai Benkler likens NSA surveillance
to an autoimmune disease, because it attacks all of our other systems. It’s a good
analogy.

The biggest cost is liberty, and the risk is real enough that people across political
ideologies are objecting to the sheer invasiveness and pervasiveness of the surveillance
system. Even the politically conservative and probusiness
Economist
magazine argued, in a 2013 editorial about video surveillance, that it had gone too
far: “This is where one of this newspaper’s strongly held beliefs that technological
progress should generally be welcomed, not feared, runs up against an even deeper
impulse, in favour
of liberty. Freedom has to include some right to privacy: if every move you make is
being chronicled, liberty is curtailed.”

ACCUSATION BY DATA

In the 17th century, the French statesman Cardinal Richelieu famously said, “Show
me six lines written by the most honest man in the world, and I will find enough therein
to hang him.” Lavrentiy Beria, head of Joseph Stalin’s secret police in the old Soviet
Union, declared, “Show me the man, and I’ll show you the crime.” Both were saying
the same thing: if you have enough data about someone, you can find sufficient evidence
to find him guilty of
something
. It’s the reason many countries’ courts prohibit the police from engaging in “fishing
expeditions.” It’s the reason the US Constitution specifically prohibits general warrants—documents
that basically allow the police to search for
anything
. General warrants can be extremely abusive; they were used by the British in colonial
America as a form of social control.

Ubiquitous surveillance means that anyone could be convicted of lawbreaking, once
the police set their minds to it. It is incredibly dangerous to live in a world where
everything you do can be stored and brought forward as evidence against you at some
later date. There is significant danger in allowing the police to dig into these large
data sets and find “evidence” of wrongdoing, especially in a country like the US with
so many vague and punitive laws, which give prosecutors discretion over whom to charge
with what, and with overly broad material witness laws. This is especially true given
the expansion of the legally loaded terms “terrorism,” to include conventional criminals,
and “weapons of mass destruction,” to include almost anything, including a sawed-off
shotgun. The US terminology is so broad that someone who donates $10 to Hamas’s humanitarian
arm could be considered a terrorist.

Surveillance puts us at risk of abuses by those in power, even if we’re doing nothing
wrong at the time of surveillance. The definition of “wrong” is often arbitrary, and
can quickly change. For example, in the US in the 1930s, being a Communist or Socialist
was a bit of an intellectual fad, and not considered wrong among the educated classes.
In the 1950s, that changed dramatically with the witch-hunts of Senator Joseph McCarthy,
when
many intelligent, principled American citizens found their careers destroyed once
their political history was publicly disclosed. Is someone’s reading of Occupy, Tea
Party, animal rights, or gun rights websites going to become evidence of subversion
in five to ten years?

This situation is exacerbated by the fact that we are generating so much data and
storing it indefinitely. Those fishing expeditions can go into the past, finding things
you might have done 10, 15, or 20 years ago . . . and counting. Today’s adults were
able to move beyond their youthful indiscretions; today’s young people will not have
that freedom. Their entire histories will be on the permanent record.

Another harm of government surveillance is the way it leads to people’s being categorized
and discriminated against. George Washington University law professor Daniel Solove
calls the situation Kafkaesque. So much of this data is collected and used in secret,
and we have no right to refute or even see the evidence against us. This will intensify
as systems start using surveillance data to make decisions automatically.

Surveillance data has been used to justify numerous penalties, from subjecting people
to more intensive airport security to deporting them. In 2012, before his Los Angeles
vacation, 26-year-old Irishman Leigh Van Bryan tweeted, “Free this week, for quick
gossip/prep before I go and destroy America.” The US government had been surveilling
the entire Twitter feed. Agents picked up Bryan’s message, correlated it with airplane
passenger lists, and were waiting for him at the border when he arrived from Ireland.
His comment wasn’t serious, but he was questioned for five hours and then sent back
home. We know that bomb jokes in airports can get you detained; now it seems that
you have to be careful making even vague promises of international rowdiness anywhere
on the Internet.

In 2013, a Hawaiian man posted a video on Facebook showing himself drinking and driving.
Police arrested him for the crime; his defense was that it was a parody and that no
actual alcohol was consumed on the video.

It’s worse in the UK. There, people have been jailed because of a racist tweet or
a tasteless Facebook post. And it’s even more extreme in other countries, of course,
where people are routinely arrested and tortured for things they’ve written online.

Most alarming of all, the US military targets drone strikes partly based on their
targets’ data. There are two types of drone targeting. The first is “targeted killing,”
where a known individual is located by means of electronic or other surveillance.
The second is “signature strikes,” where unidentified individuals are targeted on
the basis of their behavior and personal characteristics: their apparent ages and
genders, their location, what they appear to be doing. At the peak of drone operations
in Pakistan in 2009 and 2010, half of all kills were signature strikes. We don’t have
any information about how accurate the profiling was.

This is wrong. We should be free to talk with our friends, or send a text message
to a family member, or read a book or article, without having to worry about how it
would look to the government: our government today, our government in five or ten
years, or some other government. We shouldn’t have to worry about how our actions
might be interpreted or misinterpreted, or how they could be used against us. We should
not be subject to surveillance that is essentially indefinite.

GOVERNMENT CENSORSHIP

Freedom also depends on the free circulation of ideas. Government censorship, often
enabled by surveillance, stifles them both.

China protects its citizens from the “dangers” of outside news and opinions on the
Internet by something called the Golden Shield or, more commonly, the Great Firewall
of China. It’s a massive project that took eight years and cost $700 million to build,
and its job is to censor the Internet. The goal is less to banish harmful ideas or
squelch speech, and more to prevent effective organization. The firewall works pretty
well; those with technical savvy can evade it, but it blocks the majority of China’s
population from finding all sorts of things, from information about the Dalai Lama
to many Western search sites.

There’s more government censorship on the Internet today than ever before. And it’s
not just politics. Countries censor websites because of their sexual nature, the religious
views they espouse, their hosting of gambling platforms, and their promotion of drug
use or illegal activity. The citizens of most Middle Eastern countries live under
pervasive censorship. France, Germany, and Austria censor neo-Nazi content, including
online auctions of Nazi memorabilia; other countries censor sites that incite violence.
Vietnam’s “Decree 72” prohibits people from discussing current affairs online. Many
countries censor content that infringes on copyright. The UK censors pornography by
default, although you can still opt out of the censorship. In 2010, the US censored
WikiLeaks.

Most censorship is enforced by surveillance, which leads to self-censorship. If people
know the government is watching everything they say, they are less likely to read
or speak about forbidden topics. This is the point behind a 2014 Russian law requiring
bloggers to register with the government. This is why the Great Firewall of China
works so well as a censorship tool: it’s not merely the technical capabilities of
the firewall, but the threat that people trying to evade it will be discovered and
reported by their fellow citizens. Those who do the reporting don’t even necessarily
agree with the government; they might face penalties of their own if they do not report.
Internet companies in China often censor their users beyond what is officially required.

And the more severe the consequences of getting caught, the more excessively people
self-censor.

CHILLING EFFECTS

Surveillance has a potentially enormous chilling effect on society. US Supreme Court
Justice Sonia Sotomayor recognized this in her concurring opinion in a 2012 case about
the FBI’s installing a GPS tracker in someone’s car. Her comments were much broader:
“Awareness that the Government may be watching chills associational and expressive
freedoms. And the Government’s unrestrained power to assemble data that reveal private
aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by
making available at a relatively low cost such a substantial quantity of intimate
information about any person whom the Government, in its unfettered discretion, chooses
to track—may ‘alter the relationship between citizen and government in a way that
is inimical to democratic society.’ ”

Columbia University law professor Eben Moglen wrote that “omnipresent invasive listening
creates fear. And that fear is the enemy of reasoned, ordered liberty.” Surveillance
is a tactic of intimidation.

In the US, we already see the beginnings of this chilling effect. According to a Human
Rights Watch report, journalists covering stories on the intelligence community, national
security, and law enforcement have been significantly hampered by government surveillance.
Sources are less likely to contact them, and they themselves are worried about being
prosecuted. Human Rights Watch concludes that stories in the national interest that
need to be reported don’t get reported, and that the public is less informed as a
result. That’s the chilling effect right there.

Lawyers working on cases where there is some intelligence interest—foreign government
clients, drugs, terrorism—are also affected. Like journalists, they worry that their
conversations are monitored and that discussions with their clients will find their
way into the prosecution’s hands.

Post-9/11 surveillance has caused writers to self-censor. They avoid writing about
and researching certain subjects; they’re careful about communicating with sources,
colleagues, or friends abroad. A Pew Research Center study conducted just after the
first Snowden articles were published found that people didn’t want to talk about
the NSA online. A broader Harris poll found that nearly half of Americans have changed
what they research, talk about, and write about because of NSA surveillance. Surveillance
has chilled Internet use by Muslim Americans, and by groups like environmentalists,
gun-rights activists, drug policy advocates, and human rights workers. After the Snowden
revelations of 2013, people across the world were less likely to search personally
sensitive terms on Google.

A 2014 report from the UN High Commissioner on Human Rights noted, “Even the mere
possibility of communications information being captured creates an interference with
privacy, with a potential chilling effect on rights, including those to free expression
and association.”

This isn’t paranoia. In 2012, French president Nicolas Sarkozy said in a campaign
speech, “Anyone who regularly consults internet sites which promote terror or hatred
or violence will be sentenced to prison.”

This fear of scrutiny isn’t just about the present; it’s about the past as well. Politicians
already live in a world where the opposition follows them around constantly with cameras,
hoping to record something that can be taken out of context. Everything they’ve said
and done in the past is pored through and
judged in the present, with an exactitude far greater than was imaginable only a few
years ago. Imagine this being normal for every job applicant.