Data and Goliath (15 page)

Of course, surveillance doesn’t affect everyone equally. Some of us are unconcerned
about government surveillance, and therefore not affected at all. Others of us, especially
those of us in religious, social, ethnic, and economic groups that are out of favor
with the ruling elite, will be affected more.

Jeremy Bentham’s key observation in conceiving his panopticon was that people become
conformist and compliant when they believe they are being observed. The panopticon
is an architecture of social control. Think of how you act when a police car is driving
next to you, or how an entire country acts when state agents are listening to phone
calls. When we know everything is being recorded, we are less likely to speak freely
and act individually. When we are constantly under the threat of judgment, criticism,
and correction for our actions, we become fearful that—either now or in the uncertain
future—data we leave behind will be brought back to implicate us, by whatever authority
has then become focused upon our once-private and innocent acts. In response, we do
nothing out of the ordinary. We lose our individuality, and society stagnates. We
don’t question or challenge power. We become obedient and submissive. We’re less free.

INHIBITING DISSENT AND SOCIAL CHANGE

These chilling effects are especially damaging to political discourse. There is value
in dissent. And, perversely, there can be value in lawbreaking. These are both ways
we improve as a society. Ubiquitous mass surveillance is the enemy of democracy, liberty,
freedom, and progress.

Defending this assertion involves a subtle argument—something I wrote about in my
previous book
Liars and Outliers
—but it’s vitally important to society. Think about it this way. Across the US, states
are on the verge of reversing decades-old laws about homosexual relationships and
marijuana use. If the old laws could have been perfectly enforced through surveillance,
society would never have reached the point where the majority of citizens thought
those things were okay. There has to be a period
where they are still illegal yet increasingly tolerated, so that people can look around
and say, “You know, that wasn’t so bad.” Yes, the process takes decades, but it’s
a process that can’t happen without lawbreaking. Frank Zappa said something similar
in 1971: “Without deviation from the norm, progress is not possible.”

The perfect enforcement that comes with ubiquitous government surveillance chills
this process. We need imperfect security—systems that free people to try new things,
much the way off-the-record brainstorming sessions loosen inhibitions and foster creativity.
If we don’t have that, we can’t slowly move from a thing’s being illegal and not okay,
to illegal and not sure, to illegal and probably okay, and finally to legal.

This is an important point. Freedoms we now take for granted were often at one time
viewed as threatening or even criminal by the past power structure. Those changes
might never have happened if the authorities had been able to achieve social control
through surveillance.

This is one of the main reasons all of us should care about the emerging architecture
of surveillance, even if we are not personally chilled by its existence. We suffer
the effects because people around us will be less likely to proclaim new political
or social ideas, or act out of the ordinary. If J. Edgar Hoover’s surveillance of
Martin Luther King Jr. had been successful in silencing him, it would have affected
far more people than King and his family.

Of course, many things that are illegal will rightly remain illegal forever: theft,
murder, and so on. Taken to the extreme, though, perfect enforcement could have unforeseen
repercussions. What does it mean for society if the police can track your car 24/7,
and then mail you a bill at the end of the month itemizing every time you sped, ran
a red light, made an illegal left turn, or followed the car in front of you too closely?
Or if your township can use aerial surveillance to automatically fine you for failing
to mow your lawn or shovel your walk regularly? Our legal systems are largely based
on human judgment. And while there are risks associated with biased and prejudiced
judgments, there are also risks associated with replacing that judgment with algorithmic
efficiency.

Ubiquitous surveillance could lead to the kind of society depicted in the 2002 Tom
Cruise movie
Minority Report
, where people can become the subject of police investigations before they commit
a crime. Already law enforcement agencies make
use of predictive analytic tools to identify suspects and direct investigations. It’s
a short step from there to the world of Big Brother and thoughtcrime.

This notion of making certain crimes impossible to get away with is new—a potential
result of all this new technology—and it’s something we need to think about carefully
before we implement it. As law professor Yochai Benkler said, “Imperfection is a core
dimension of freedom.”

SECRECY CREEP

Secrecy generally shrouds government surveillance, and it poses a danger to a free
and open society.

In the US, this has manifested itself in several ways. First, the government has greatly
expanded what can be considered secret. One of the truisms of national security is
that secrecy is necessary in matters of intelligence, foreign policy, and defense.
If the government made certain things public—troop movements, weapons capabilities,
negotiating positions—the enemy would alter its behavior to its own advantage. This
notion of military secrecy has been true for millennia, but recently has changed dramatically.
I’m using the US as an example here. In World War I, we were concerned about the secrecy
of specific facts, like the location of military units and the precise plans of a
battle. In World War II, we extended that secrecy to both large-scale operations and
entire areas of knowledge. Not only was our program to build an atomic bomb secret;
the entire science of nuclear weaponry was secret. After 9/11, we generalized further,
and now almost anything can be a secret.

The result is that US government secrecy has exploded. No one knows the exact number—it’s
secret, of course—but reasonable estimates are that hundreds of billions of pages
of government documents are classified in the US each year. At the same time, the
number of people with security clearances has similarly mushroomed. As of October
2012, almost 5 million people in the US had security clearances (1.4 million at the
top-secret level), a 50% increase since 1999.

Pretty much all the details of NSA surveillance are classified, lest they tip off
the bad guys. (I’ll return to that argument in Chapter 13.) Pre-Snowden, you weren’t
allowed to read the Presidential Policy Directives that
authorized much of NSA surveillance. You weren’t even allowed to read the court orders
that authorized this surveillance. It was all classified, and it still would be if
the release of the Snowden documents hadn’t resulted in a bunch of government declassifications.

The NSA and the military aren’t the only organizations increasing their levels of
secrecy. Local law enforcement is starting to similarly cloak its own surveillance
actions. For example, police requests for cell phone surveillance are routinely sealed
by the courts that authorize them. (The UK police won’t even admit that they use the
technology.) There are many more examples of this.

This kind of secrecy weakens the checks and balances we have in place to oversee surveillance
and, more broadly, to see that we are all treated fairly by our laws. Since the terrorist
attacks of 9/11, FBI and NSA National Security Letters demanding surveillance information
from various companies have regularly come with gag orders attached. Those who receive
such a letter are prohibited from talking, even in general terms, about it. That makes
it much harder to fight the letters in court.

Governments are also hiding behind corporate nondisclosure agreements. That’s the
reason the FBI and local police give for not revealing the details of their StingRay
cell phone surveillance system. That’s why local police departments refuse to divulge
details of the commercially developed predictive policing algorithms they use to deploy
officers.

The second way government secrecy has manifested itself is that it is being exerted
to an extreme degree. The US has a complex legal framework for classification that
is increasingly being ignored. The executive branch abuses its state secrets privilege
to keep information out of public view. The executive branch keeps secrets from Congress.
The NSA keeps secrets from those who oversee its operations—including Congress. Certain
members of Congress keep secrets from the rest of Congress. Secret courts keep their
own secrets, and even the Supreme Court is increasingly keeping documents secret.
In Washington, knowledge is currency, and the intelligence community is hoarding it.

The third manifestation of government secrecy is that government has dealt very severely
with those who expose its secrets: whistleblowers. President Obama has been exceptionally
zealous in prosecuting individuals who have disclosed wrongdoing by government agencies.
Since his election in
2008, he has pursued prosecutions against eight people for leaking classified information
to the press. There had been only three previous prosecutions since the Espionage
Act was passed in 1917.

Intelligence-related whistleblowing is not a legal defense in the US; the Espionage
Act prohibits the defendant from explaining why he leaked classified information.
Daniel Ellsberg, the first person prosecuted under the law, in 1971, was barred from
explaining his actions in court. Former NSA senior executive Thomas Drake, an NSA
whistleblower who was prosecuted in 2011, was forbidden to say the words “whistleblowing”
and “overclassification” in his trial. Chelsea Manning was prohibited from using a
similar defense.

Edward Snowden claims he’s a whistleblower. Many people, including me, agree; others
don’t. Secretary of State John Kerry insisted that Snowden should “come back here
and stand in our system of justice and make his case,” and former secretary of state
Hillary Clinton proclaimed, “If he wishes to return knowing he would be held accountable
and also able to present a defense, that is his decision to make.” Both comments are
examples of misleading political smoke-blowing. Current law does not permit Snowden
to make his case.

Inasmuch as government surveillance requires secrecy, people lose the power to debate
and vote on what their government is doing in their name, or tell their elected officials
what they think should be done. It’s easy to forget, in the seemingly endless stream
of headlines about the NSA and its surveillance programs, that none of it would be
known to the public at all if Snowden hadn’t, at great personal cost and risk, exposed
what the agency is doing.

ABUSE

In early 2014, someone started a parody Twitter account for Jim Ardis, the mayor of
Peoria, Illinois. It was a pretty offensive parody, and it really pissed Ardis off.
His anger set off a series of events in which the local police illegally obtained
an order demanding that Twitter turn over identity information related to the account,
then raided the home of Twitter user Jon Daniel. No charges were filed, mostly because
Daniel didn’t do anything wrong, and the ACLU is currently suing Peoria on his behalf.

All surveillance systems are susceptible to abuse. In recent years, politicians have
used surveillance to intimidate the opposition and, as we saw above, harass people
who annoy them. One example is from 2014: police in New Jersey routinely photographed
protesters at events hosted by Governor Chris Christie until the state attorney general
ordered them to stop. Also in 2014, we learned that the CIA illegally hacked into
computers belonging to staffers from the Senate Intelligence Committee who were overseeing
them. In 2013, we learned that the NSA had been spying on UN communications, in violation
of international law. We know that there have been all sorts of other abuses of state
and local government surveillance authorities as well.

Abuses happen inside surveillance organizations as well. For example, NSA employees
routinely listen to personal phone calls of Americans overseas, and intercept e-mail
and pass racy photos around the office. We learned this from two intercept operators
in 2008, and again from Snowden in 2014. We learned from the NSA that its agents sometimes
spy on people they know; internally, they call this practice LOVEINT. The NSA’s own
audit documents note that the agency broke its own privacy rules 2,776 times in 12
months, from 2011 to 2012. That’s a lot—eight times a day—but the real number is probably
much higher. Because of how the NSA polices itself, it essentially decides how many
violations it discovers.

This is not a new problem, nor one limited to the NSA. Recent US history illustrates
many episodes in which surveillance has been systematically abused: against labor
organizers and suspected Communists after World War I, against civil rights leaders,
and against Vietnam War protesters. The specifics aren’t pretty, but it’s worth giving
a couple of them.

•  Through extensive surveillance, J. Edgar Hoover learned of Martin Luther King’s
extramarital affairs, and in an anonymous letter he tried to induce him to commit
suicide in 1964: “King, look into your heart. You know you are a complete fraud and
a great liability to all of us Negroes. White people in this country have enough frauds
of their own but I am sure they don’t have one at this time anywhere near your equal.
You are no clergyman and you know it. I repeat you are a colossal fraud and an evil,
vicious one at that. You could not believe in God. . . . Clearly you don’t believe
in any personal moral principles. . . . King, there
is only one thing left for you to do. You know what it is. You have just 34 days in
which to do it (this exact number has been selected for a specific reason, it has
definite practical significance). You are done. There is but one way out for you.
You better take it before your filthy, abnormal fraudulent self is bared to the nation.”