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Data and Goliath The Hidden Battles to Collect Your Data and Control Your World CHapter 7. Political Liberty and Justice
Author: Bruce Schneier Publisher: New York, NY: W. W. Norton & Company. Publish Date: 2015-3 Review Date: Status:📚
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111 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. 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.
112 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. 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.
113 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.
115 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.
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Highlight(pink) - Location 1473 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.”
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Highlight(pink) - Location 1475 Both were saying the same thing: if you have enough data about someone, you can find sufficient evidence to find him guilty of something.
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Highlight(pink) - Location 1476 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.
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Highlight(pink) - Location 1480 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.
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Highlight(pink) - Location 1483 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.
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Highlight(pink) - Location 1485 Surveillance puts us at risk of abuses by those in power, even if we’re doing nothing wrong at the time of surveillance.
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Highlight(pink) - Location 1486 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.
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Highlight(pink) - Location 1490 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.
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Highlight(pink) - Location 1492 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.
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Highlight(pink) - Location 1515 Freedom also depends on the free circulation of ideas. Government censorship, often enabled by surveillance, stifles them both.
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Highlight(pink) - Location 1518 The goal is less to banish harmful ideas or squelch speech, and more to prevent effective organization.
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Highlight(pink) - Location 1516 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.
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Highlight(pink) - Location 1526 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.
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Highlight(pink) - Location 1528 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.
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Highlight(pink) - Location 1530 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.
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Highlight(pink) - Location 1532 And the more severe the consequences of getting caught, the more excessively people self-censor.
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Highlight(pink) - Location 1533 Surveillance has a potentially enormous chilling effect on society.
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Highlight(pink) - Location 1539 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.
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Highlight(pink) - Location 1541 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.
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Highlight(pink) - Location 1546 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.
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Highlight(pink) - Location 1548 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.
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Highlight(pink) - Location 1549 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.
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Highlight(pink) - Location 1556 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.”
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Highlight(pink) - Location 1563 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.
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Highlight(pink) - Location 1566 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.
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Highlight(pink) - Location 1568 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.
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Highlight(pink) - Location 1570 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.
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Highlight(pink) - Location 1574 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.”
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Highlight(pink) - Location 1579 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.
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Highlight(pink) - Location 1582 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.