Data and Goliath (16 page)

•  This is how a Senate investigation described the FBI’s COINTELPRO surveillance
program in 1976: “While the declared purposes of these programs were to protect the
‘national security’ or prevent violence, Bureau witnesses admit that many of the targets
were nonviolent and most had no connections with a foreign power. Indeed, nonviolent
organizations and individuals were targeted because the Bureau believed they represented
a ‘potential’ for violence—and nonviolent citizens who were against the war in Vietnam
were targeted because they gave ‘aid and comfort’ to violent demonstrators by lending
respectability to their cause. . . . But COINTELPRO was more than simply violating
the law or the Constitution. In COINTELPRO the Bureau secretly took the law into its
own hands, going beyond the collection of intelligence and beyond its law enforcement
function to act outside the legal process altogether and to covertly disrupt, discredit
and harass groups and individuals.”

Nothing has changed. Since 9/11, the US has spied on the Occupy movement, pro- and
anti-abortion activists, peace activists, and other political protesters.

•  The NSA and FBI spied on many prominent Muslim Americans who had nothing to do
with terrorism, including Faisal Gill, a longtime Republican Party operative and onetime
candidate for public office who held a top-secret security clearance and served in
the Department of Homeland Security under President George W. Bush; Asim Ghafoor,
a prominent attorney who has represented clients in terrorism-related cases; Hooshang
Amirahmadi, an Iranian American professor of international relations at Rutgers University;
and Nihad Awad, the executive director of the largest Muslim civil rights organization
in the country.

•  The New York Police Department went undercover into minority neighborhoods.
It monitored mosques, infiltrated student and political groups, and spied on entire
communities. Again, people were targeted because of their ethnicity, not because of
any accusations of crimes or evidence of wrongdoing. Many of these operations were
conducted with the help of the CIA, which is prohibited by law from spying on Americans.

There’s plenty more. Boston’s fusion center spied on Veterans for Peace, the women’s
antiwar organization Code Pink, and the Occupy movement. In 2013, the city teamed
with IBM to deploy a video surveillance system at a music festival. During the same
time period, the Pentagon’s Counterintelligence Field Activity spied on all sorts
of innocent American civilians—something the Department of Defense is prohibited by
law from doing.

Echoing Hoover’s attempt to intimidate King, the NSA has been collecting data on the
porn-viewing habits of Muslim “radicalizers”—not terrorists, but those who through
political speech might radicalize others—with the idea of blackmailing them.

In 2010, DEA agents searched an Albany woman’s cell phone—with permission—but then
saved the intimate photos they found to create a fake Facebook page for her. When
they were sued for this abuse, the government speciously argued that by consenting
to the search of her phone, the woman had implicitly consented to identity theft.

Local authorities abuse surveillance capabilities, too. In 2009, the Lower Merion
School District, near Philadelphia, lent high schoolers laptops to help them with
their homework. School administrators installed spyware on the computers, then recorded
students’ chat logs, monitored the websites they visited, and—this is the creepiest—surreptitiously
photographed them, often in their bedrooms. This all came to light when an assistant
principal confronted student Blake Robbins with pictures of him popping pills like
candy. Turns out they
were
candy—Mike and Ike, to be exact—and the school was successfully sued for its invasive
practices.

Aside from such obvious abuses of power, there’s the inevitable expansion of power
that accompanies the expansion of any large and powerful bureaucratic system: mission
creep. For example, after 9/11, the CIA and the
Treasury Department joined forces to gather data on Americans’ financial transactions,
with the idea that they could detect the funding of future terrorist groups. This
turned out to be a dead end, but the expanded surveillance netted a few money launderers.
So it continues.

In the US, surveillance is being used more often, in more cases, against more offenses,
than ever before. Surveillance powers justified in the PATRIOT Act as being essential
in the fight against terrorism, like “sneak and peek” search warrants, are far more
commonly used in non-terrorism investigations, such as searches for drugs. In 2011,
the NSA was given authority to conduct surveillance against drug smugglers in addition
to its traditional national security concerns. DEA staff were instructed to lie in
court to conceal that the NSA passed data to the agency.

The NSA’s term is “parallel construction.” The agency receiving the NSA information
must invent some other way of getting at it, one that is admissible in court. The
FBI probably got the evidence needed to arrest the hacker Ross Ulbricht, aka Dread
Pirate Roberts, who ran the anonymous Silk Road website where people could buy drugs
and more, in this way.

Mission creep is also happening in the UK, where surveillance intended to nab terrorists
is being used against political protesters, and in all sorts of minor criminal cases:
against people who violate a smoking ban, falsify their address, and fail to clean
up after their dogs. The country has a lot of cameras, so it “makes sense” to use
them as much as possible.

Other countries provide many more examples. Israel, for instance, gathers intelligence
on innocent Palestinians for political persecution. Building the technical means for
a surveillance state makes it easy for people and organizations to slip over the line
into abuse. Of course, less savory governments abuse surveillance as a matter of course—with
no legal protections for their citizens.

All of this matters, even if you happen to trust the government currently in power.
A system that is overwhelmingly powerful relies on everyone in power to act perfectly—so
much has to go right to prevent meaningful abuse. There are always going to be bad
apples—the question is how much harm they are allowed and empowered to do and how
much they corrupt the rest of the barrel. Our controls need to work not only when
the party we approve of leads the government but also when the party we disapprove
of does.

CURTAILING INTERNET FREEDOM

In 2010, then secretary of state Hillary Clinton gave a speech declaring Internet
freedom a major US foreign policy goal. To this end, the US State Department funds
and supports a variety of programs worldwide, working to counter censorship, promote
encryption, and enable anonymity, all designed “to ensure that any child, born anywhere
in the world, has access to the global Internet as an open platform on which to innovate,
learn, organize, and express herself free from undue interference or censorship.”
This agenda has been torpedoed by the awkward realization that the US and other democratic
governments conducted the same types of surveillance they have criticized in more
repressive countries.

Those repressive countries are seizing on the opportunity, pointing to US surveillance
as a justification for their own more draconian Internet policies: more surveillance,
more censorship, and a more isolationist Internet that gives individual countries
more control over what their citizens see and say. For example, one of the defenses
the government of Egypt offered for its plans to monitor social media was that “the
US listens in to phone calls, and supervises anyone who could threaten its national
security.” Indians are worried that their government will cite the US’s actions to
justify surveillance in that country. Both China and Russia publicly called out US
hypocrisy.

This affects Internet freedom worldwide. Historically, Internet governance—what little
there was—was largely left to the United States, because everyone more or less believed
that we were working for the security of the Internet instead of against it. But now
that the US has lost much of its credibility, Internet governance is in turmoil. Many
of the regulatory bodies that influence the Internet are trying to figure out what
sort of leadership model to adopt. Older international standards organizations like
the International Telecommunications Union are trying to increase their influence
in Internet governance and develop a more nationalist set of rules.

This is the cyber sovereignty movement, and it threatens to fundamentally fragment
the Internet. It’s not new, but it has been given an enormous boost from the revelations
of NSA spying. Countries like Russia, China,
and Saudi Arabia are pushing for much more autonomous control over the portions of
the Internet within their borders.

That, in short, would be a disaster. The Internet is fundamentally a global platform.
While countries continue to censor and control, today people in repressive regimes
can still read information from and exchange ideas with the rest of the world. Internet
freedom is a human rights issue, and one that the US should support.

Facebook’s Mark Zuckerberg publicly took the Obama administration to task on this,
writing, “The US government should be the champion for the Internet, not a threat.”
He’s right.

8

Commercial Fairness and Equality

A
ccretive Health is a debt collection agency that worked for a number of hospitals
in Minnesota. It was in charge of billing and collection for those hospitals, but
it also coordinated scheduling, admissions, care plans, and duration of hospital stays.
If this sounds like a potential conflict of interest, it was. The agency collected
extensive patient data and used it for its own purposes, without disclosing to patients
the nature of its involvement in their healthcare. It used information about patient
debts when scheduling treatment and harassed patients for money in emergency rooms.
The company denied all wrongdoing, but in 2012 settled a Minnesota lawsuit by agreeing
not to operate in Minnesota for two to six years. On the one hand, the fact that Accretive
was caught and punished shows that the system is working. On the other hand, it also
shows how easy it is for our data to be mishandled and misused.

Stories like this demonstrate the considerable risk to society in allowing corporations
to conduct mass surveillance. It’s their surveillance that contributes to all of the
offenses against civil liberties, social progress, and freedom that I described in
the previous chapter. And in addition to enabling government surveillance, corporate
surveillance carries its own risks.

SURVEILLANCE-BASED DISCRIMINATION

In a fundamental way, companies use surveillance data to discriminate. They place
people into different categories and market goods and services to them differently
on the basis of those categories.

“Redlining” is a term from the 1960s to describe a practice that’s much older: banks
discriminating against members of minority groups when they tried to purchase homes.
Banks would not approve mortgages in minority neighborhoods—they would draw a red
line on their maps delineating those zones. Or they would issue mortgages to minorities
only if they were buying houses in predominantly minority neighborhoods. It’s illegal,
of course, but for a long time banks got away with it. More generally, redlining is
the practice of denying or charging more for services by using neighborhood as a proxy
for race—and it’s much easier to do on the Internet.

In 2000, Wells Fargo bank created a website to promote its home mortgages. The site
featured a “community calculator” to help potential buyers search for neighborhoods.
The calculator collected the current ZIP code of the potential customers and steered
them to neighborhoods based on the predominant race of that ZIP code. The site referred
white residents to white neighborhoods, and black residents to black neighborhoods.

This practice is called weblining, and it has the potential to be much more pervasive
and much more discriminatory than traditional redlining. Because corporations collect
so much data about us and can compile such detailed profiles, they can influence us
in many different ways. A 2014 White House report on big data concluded, “. . . big
data analytics have the potential to eclipse longstanding civil rights protections
in how personal information is used in housing, credit, employment, health, education,
and the marketplace.” I think the report understated the risk.

Price discrimination is also a big deal these days. It’s not discrimination in the
same classic racial or gender sense as weblining; it’s companies charging different
people different prices to realize as much profit as possible. We’re most familiar
with this concept with respect to airline tickets. Prices change all the time, and
depend on factors like how far in advance we purchase, what days we’re traveling,
and how full the flight is. The airline’s goal is to sell tickets to vacationers at
the bargain prices they’re
willing to pay, while at the same time extracting from business travelers the much
higher amounts that
they’re
willing to pay. There is nothing nefarious about the practice; it’s just a way of
maximizing revenues and profits. Even so, price discrimination can be
very
unpopular. Raising the price of snow shovels after a snowstorm, for example, is considered
price-gouging. This is why it is often cloaked in things like special offers, coupons,
or rebates.

Some types of price discrimination are illegal. For example, a restaurant cannot charge
different prices depending on the gender or race of the customer. But it can charge
different prices based on time of day, which is why you see lunch and dinner menus
with the same items and different prices. Offering senior discounts and special children’s
menus is legal price discrimination. Uber’s surge pricing is also legal.