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.
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 chil
ls 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.
Data and Goliath Page 11