A Skype call with Edward Snowden’s lawyer is different from other Skype calls. Beneath the introductions and the courtesies sits the question of who else is listening. Among the NSA data released by Snowden in 2013 was a training document which confirmed that “sustained Skype collection began in Feb 2011”. Since that date, the NSA has been able to listen to and record any Skype call. Does Ben Wizner think they’re listening, right now?
“I guess I would say… probably not.” Wizner is not one for dramatic speculation. He first sued his government for torturing its own citizens more than a decade ago; his work is dramatic without embellishment. Wizner joined the ACLU months before 9/11. Ten years later, he became the director of the Speech, Privacy, and Technology Project. In 2013, he became principal legal advisor to the world’s most wanted man. In his defence of Snowden and his work for the ACLU, Wizner works at the point where civil liberties and national security meet. Increasingly, he says, it is hard for the legislation that protects civil liberties to keep up with the methods available to those who would infringe them.
“The fundamental issue,” says Wizner, “is simply that surveillance used to be expensive, and now it’s cheap. That’s something that we have to confront, centrally, as one of the main challenges of our time. It used to be that our privacy was protected more by cost than by law, but that cost protection is gone. If governments wanted to know where you were, a generation ago, they had to assign a team of agents to track you 24 hours a day. There was no real legal barrier to doing that, but there was a huge resource barrier. There had to be a pretty good reason for it. Now, our technological systems are passively collecting all of this intimate information about all of us. The cost of storing it, forever, has plunged from being very expensive to almost trivially cheap. So we’re going to need law and policy in places where we didn’t need it before. We’re going to need to figure out what role law needs to play in a world where governments have the financial and technological capability to record and store virtually complete records of our lives.”
Many technologists have observed that the advances in computing and communication of the past few decades have allowed us to sleepwalk into an almost perfectly pervasive surveillance state. Wizner advises viewing any argument for extension of these powers with extreme caution. “ I think the way to understand this is that even people who seem willing to exchange personal privacy for a measure of safety wouldn’t want video cameras throughout their house, including in their bedrooms, on at all hours of the day. They wouldn’t want drones with sophisticated cameras hovering over their homes and communities, 24 hours a day, recording every movement in the streets. But mass metadata surveillance achieves almost the same effect. If the police can know, without any legal restriction, where your phone is at any hour of the day, what other phones are with it at any hour of the day, and they can get months of this information and put it together, they can paint a remarkably intimate picture of your life. Who you’re sleeping with, whether you pray, whether you drink, if you’ve had an abortion. All of this information can be very easily reconstructed from the metadata that we leak on a daily basis, now.”
The argument for further extension of government surveillance almost justifies its means by the threat of terrorism. Wizner calls this a “bait-and-switch” – a ruse, to secure powerful surveillance in the name of preventing extremist attacks, but then to pass these powers on to other authorities. Against terrorists, he point out, “mass surveillance is not terribly effective as a predictive measure. Collecting billions of communications in order to predict extremely rare events is not effective. The system gets overwhelmed with false positives, no matter what measure you’re using. That’s why the investigatory groups that were put together following the Snowden revelations uniformly reached the conclusion that collection of the metadata for all US phone calls didn’t lead to either the prevention or the discovery of any terrorist attack or activity.”
For domestic law enforcement, however, vast databases of the details of citizens’ lives represents a goldmine. Wizner calls it “a kind of surveillance time machine. They would be able to hit rewind on the database, and to reconstruct all kinds of things that had happened. Because they could be extremely useful for solving crimes, the capabilities will migrate from intelligence into law enforcement. And then, our societies are going to feel very different – when every police officer with a smartphone has access to the kind of information that the NSA and GCHQ collect.”
In the UK, Wizner’s forecast has already precipitated. Under the Investigatory Powers Act, the communications data of any UK citizen is now collected by default and may be provided, without warrant, to any police force. The data is also available, again without a warrant, to most government departments, as well as such well-known anti-terrorist forces as the Food Standards Agency and the Welsh Ambulance Service.
What kind of state does Wizner think this will lead us into? “Here, I like to quote the security technologist Bruce Schneier, who asks “how do you feel when a police car is driving right next to you? Imagine having that feeling all the time.” Some people might say, “oh, I just feel safer”. But most of us don’t just feel safer. We feel nervous, we feel watched, scrutinised. It absolutely would affect our willingness to take risks, to engage in behaviour that’s not fully sanctioned – the kinds of things that free societies need to grow and develop.”
Whether the unprecedented mass surveillance now being conducted by the governments of the UK, US and other nations on their own citizens will lead inevitably to totalitarianism is debatable. What is inevitable is that when governments collect data on their citizens, it falls into other hands. In 2015, it was revealed that councils in the UK suffered data breaches at an average of almost four per day, losing the personal data of children on 658 occasions in three years. In 2012, the NHS lost 1.8 million patient records. In 2008, HMRC lost the personal data of 25 million taxpayers. The list of incidents in which the UK government has lost, stolen and carelessly handled databases of its subjects’ data is thousands of items long.
“We’ve already seen networks of hackers obtain vast amounts of personal information, and convert it into profit,” agrees Wizner. It is absolutely the case that we’re going to have to come to see that aggregated data is not just something that has beneficial uses, but something that creates real liabilities for us.”
However, Wizner says we should not compare the data being collected on us by mass surveillance to traditional government records. It is more personal than that. The data breaches that will result will be closer to the 2015 data breach of Ashley Madison, a dating website that enabled people to have extramarital affairs. Publishing of the site’s user database was linked to suicides in two countries. Wizner says he and his colleagues refer to such deeply personal information as “databases of ruin”, because “they contain within them the seeds to ruin any of us.”
That a government database could contain the seeds of your ruin – the means to impersonate you, jeapordise your position or make public the evidence of anything you’ve done which you’d rather wasn’t publicly known – is not, says Wizner, a paranoid idea about the future. “That information sits in government databases today. And not just our own government. The Chinese government was able to breach the database the Office of Personnel Management, which does all of the background checks for people who work in sensitive jobs in the United States. Millions of records, of the most sensitive kinds of information, are now available to a foreign government.”
Wizner says last year’s dispute between the FBI and Apple, in which the technology giant refused to crack the security on its iPhone in order to aid the agency’s investigation of the San Bernadino terrorists, is a good example of law enforcement’s failure to recognise that data security can be more important than forensic capability.
“Many former high-level NSA officials actually took Apple’s side in that dispute. They argued that it was actually more important for Apple to be able to create government-proof security on a global scale than it was for US law enforcement to be able to break into this one phone. They know that if Apple has to engineer its product to allow the FBI in, then it will also have to allow in the Chinese military, and Russian intelligence.”
So how can civil liberties be protected in this emerging state of cheaply available, barely regulated surveillance? “There are two parallel reform conversations that need to take place. One is about what kind of laws we need to pass, and how our courts can act as a check on government. The other is on the technology side – how can we build up our defences. The answer to the second [question] is encryption.”
The great benefit of encryption is that “it can assist citizens even in authoritarian states. We could have the best surveillance reform imaginable in the US – we haven’t, but we could – and it wouldn’t protect anybody in Russia or China. On the other hand, if the technology platforms that we’re using make it difficult or impossible for governments to engage in mass surveillance, that’s something that could be a benefit everywhere.”
Wizner says it’s crucial that these issues of privacy and security are seen as international, because the means are so easily to sell and transport that one country’s surveillance capabilities soon become another’s. “It would be a mistake if everyone in the world viewed the Snowden revelations as a story about the NSA’s activities and capabilities. Snowden likes to say that we have reached the “atomic moment” for computer science. But proliferation is much faster; it doesn’t require all of the complexity that nuclear proliferation has required. So now is the time for us to be developing laws about how we’re going to deploy those technologies against each other.”
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