RECENTLY, on his HBO show Last Week Tonight, John Oliver interviewed Edward Snowden in Russia. At one point during the interview, Oliver showed Snowden a video of Oliver asking people on the street about Snowden and his revelations that the government was collecting vast amounts of metadata on citizens’ phone calls. The result? Most people didn’t even know who Snowden was, and, if they did, they didn’t seem to appreciate the full impact of the mass government surveillance scheme he revealed to the world.
Mark Zuckerberg, the founder of Facebook, has famously advanced the theory that the large-scale sharing of information is overall a positive thing, resulting in a “more open and connected” world. Through social networking sites like Facebook, our personal tastes in books, movies, family photos, and friends are now public information that’s recorded and, we now know, captured and selectively utilized by the government.
But Zuckerberg refuses to frame the debate in terms of privacy. Instead he argues in terms of consumer choice — users have the opportunity to alter their privacy settings. If you don’t want your sister to see your photos, you can block her. But the assumed normal is sharing. Facebook’s expectation is that, all things being equal, all of us want to share everything with everyone.
Zuckerberg’s reframing illustrates what seems to be the core problem with technology and information — how we perceive the notion of choice. There’s something about technological spying that is particularly troubling in this regard. Because people believe that they are giving up their information voluntarily, there is the illusion of choice. Yet, this choice is already limited because so much data manipulation and storing occurs behind the scenes. Combine this rise in available data with the government’s strong interest in preventing terrorist events and the public’s anxiety, and we have where we are today.
In They Know Everything About You, longtime and distinguished journalist Robert Scheer, who is also the editor-in-chief of Truthdig, provides an excellent background to show this historical journey, focusing on the basics of surveillance — technological spying, Snowden’s revelations, and the partnership between internet companies like Yahoo and Google and the US government. He terms this “partnership” the “military-intelligence complex” to describe the network of public and private entities that serve to keep the rest of us who are not in the know under watch.
An important theoretical premise of Scheer’s work is that privacy — a wall of separation between the individual and the state — is essential for a democracy. The individual operating within a democratic government must be sovereign, Scheer says, so that she is able to express thoughts and opinions without fear of government interference. He believes we should all have a choice about what to reveal and when and how.
Things like Facebook and Yelp make that choice more difficult — even if you adjust your privacy settings or only log on to look at other people, the program will still track your viewing habits there and on other sites. Technology, Scheer argues, is insidious because it has “succeeded in equating privacy with anonymity.” In other words, the internet allows people to act under cover — we can troll others, make lewd comments, watch porn, shop, gawk at celebrities and ex-boyfriends, and learn how to build bombs, all in the privacy of our own home. But that type of privacy — the privacy of sitting around in pajamas — is not the same privacy as being protected from your own government. In order for a democracy to flourish, citizens need to be able to feel that they are distinguishable from the government, and that the government cannot intrude into certain arenas such as thought, communications, and movement.
Scheer’s book traces how the military-intelligence complex came to be empowered by legislation the American government has passed since 9/11. The legal rationale that Presidents Obama and Bush have relied on to collect data is Section 215 of the USA Patriot Act, passed in October 2001 as an amendment to the Foreign Intelligence Surveillance Act (FISA). Section 215
allows the government to obtain secret court orders requiring an entity or person to turn over “any tangible things… for an investigation to protect against international terrorism or clandestine intelligence activities.” Those surveyed under Section 215 orders are never notified of the seizure and search of their “tangible things,” which can include anything from medical records to Internet browsing history.
Here, Scheer rightly describes just how broadly the law has been written and how much power Congress gave the president in the panic that followed 9/11. Much of what Scheer provides is a general history of the Patriot Act, and other reports and legislation that led us to where we are today in terms of surveillance. As Snowden revealed, the US government uses Section 215 to authorize the collection of information on almost any domestic phone calls.
Section 215, as Scheer points out, gives the other branches of government very little oversight. The FISA court, a special closed court, is the only government entity that approves all executive branch warrants for wiretapping and surveillance. In FISA court, only the government presents evidence. Mother Jones found that only .03 percent of all government requests for warrants have been denied.
The Patriot Act is up for renewal this year, and there is some indication that the sands of policy may be shifting. Just last week, the Second Circuit held that Section 215 did not permit the various types of mass surveillance that the government uses it to support. The most shocking part of this ruling determined that search warrants and subpoenas — the traditional ways the government collects evidence — were dwarfed by the government telephone metadata collection scheme: “The government can point to no grand jury subpoena that is remotely comparable to the real-time data collection undertaken under this program.”
While certainly the Patriot Act and FISA are the focus of his attention, Scheer also gives a general critique on the use of internet communications by the government, and the failure of large companies to enforce their consumers’ rights. This section to me is less clear — DAs have been subpoenaing telephone companies for decades (and the companies have consistently resisted turning over consumer information). The fact that more people post more information on Facebook does not really change the concept of what constitutes a search and seizure. It does, however, highlight just how much information is available to more people at a much faster rate. Courts, as a result, have had to adjust and develop new rules on how to interpret social media postings.
To be fair, Scheer’s main point is that it’s different when the government uses the power of Facebook to prosecute someone than when I use Facebook to track down an ex-boyfriend. The government can utilize more coercive tactics, and, given that law enforcement has such an edge already, this advantage does seem unfair. On the flip side, insurance companies troll Facebook to look for people claiming worker’s compensation who have posted photos of themselves skiing and rock climbing. Is that an unfair use of Facebook? Or have we, as an internet-using public, simply mistaken consumerism for free choice?
The law in this area has been changing rapidly. Just last year, the Supreme Court held that looking at the information contained in an individual’s cell phone constituted a search that required a warrant under the Fourth Amendment, simply because of the vast amount of data stored in a cell phone. The Court also heard arguments on whether or not song lyrics posted on Facebook constituted threats.
Technology has invaded everyone’s lives and has enabled a large degree of surveillance. Much of the day-to-day surveillance, however, happens insidiously and is sanctioned by both the federal and local governments. The logic has transformed from catching the bad guys to anticipating the bad guys before they can even become bad guys, in much the same way that Target can anticipate that I will need to buy diapers before I even know I’m pregnant.
Scheer heavily critiques the position the government has retreated to by arguing that “everyone is doing it.” He rightly points out that at no point in time did the citizens of the US elect to put themselves under surveillance, although one might wonder whether such a referendum would win in a popular election anyway. (People tend to think that it’s other people breaking the law, not themselves.)
Instead, the government decided to harness the power of consumer preference as an extension of its own policing power. As Scheer points out, the public was less immediately alarmed at the idea of the government harnessing data from the internet because “this intrusion was not identified with an assault on other notions of freedom, like the sovereignty of political, cultural, or religious activity.” Political news provides plenty of examples of citizen outrage over our system’s inability to allow the “people to decide” issues like abortion, voter registration, same-sex marriage, and the death penalty. These issues seem to touch on fundamental liberties that strict Constitutionalists like to complain about, even though worshipping those liberties is mostly an arbitrary and empty gesture.
Scheer’s book particularly focuses on tech behemoths like Google, which are essentially beholden to the government and impossible for citizens to avoid. People do, of course, share information with others via email and Facebook and Twitter, but this is an entirely different activity because a user assumes that these communications, while they are being captured by the providers, are still essentially private. So, as the author says, these private companies — who have amassed a great deal of power and influence — serve as “proxies” for the government. The government doesn’t need to spy on us; we give our personal information to them ourselves.
Of course, not everyone in the world thinks that the US is doing a fine job. The United Nations has determined that America is committing a number of human rights abuses, including the spying tactics of the National Security Agency, among other concerns.
It’s interesting that this issue wasn’t litigated earlier. The Patriot Act has been renewed almost every year without any substantial objection. But, as the court rulings point out, people are now paying attention because the results of the capture of so much information are being seen in both a federal and a local law-enforcement context.
This month’s Harper’s has a piece by Petra Bartosiewicz on “predictive policing” — basically using counter-terrorism techniques to track would-be criminals before they actually commit any crimes. This is a new substitute for the friendly patrol cop who knows the people and the neighborhood. There’s an entire yearly expo on “the latest products, innovative services and state of the art technologies to meet the challenges of keeping our communities safe,” which includes smartphone apps that enable probation officers to buzz people to take their medications or ensure that their parolees aren’t going anywhere they aren’t supposed to. (It goes without saying that the parolees themselves are responsible for paying for their electronic monitoring — just as some people buy products on Amazon and get recommendations for more things to spend money on, other people pay for the privilege of being monitored. Capitalist brilliance — we not only give the government our information willingly, we pay for it, too.)
One of the most interesting parts of Scheer’s book is his revelation that all this surveillance doesn’t work very well. For example, in January of 2014, President Obama claimed that one of the 9/11 hijackers, Khalid al Midhar, called from San Diego to a known al-Qaeda safe house in Yemen, but this was not known to the CIA because they could not determine where the call came from. Section 215 was supposed to fix this gap.
But, as Scheer points out, further investigations revealed that this was a lie. The Privacy and Civil Liberties Oversight Board issued a report stating that there was no known evidence or thwarted attack to justify the NSA’s activities. The problem, the report concluded, was that intelligence officers had not put together the information: “this was a failure to connect the dots, not a failure to collect enough dots.”
This comes, I think, as no surprise to people who are familiar with the Senate Intelligence Committee Report on CIA enhanced interrogation techniques a.k.a. The Torture Report. The Senate Intelligence Committee basically found that torture techniques did not lead to any major counter-terrorist successes, even though all along the American people were told that waterboarding was somehow essential to preserving national security.
What is perhaps most alarming is the melding of the capitalist enterprise and the government one, the meeting of Silicon Valley and Washington DC. Embedding surveillance within supposedly “free market” products like Facebook and Google gives us the illusion of choice in surveillance. I could, I suppose, go off the grid and avoid being detected by anyone. But then, I would miss out on the convenience of having someone else aggregate my top news stories for me or learning what Thai restaurants are open around my neighborhood at 10 p.m. In other words, consumerism gives consumers the illusion of choice because our choices are limited to Indian or Thai food. But this is likely worse for our democracy than no choice at all.
Jessica Pishko graduated with a JD from Harvard Law School and received an MFA from Columbia University. She writes frequently on incarceration and the justice system.