The privacy advocate and legal advisor to Edward Snowden on today’s surveillance empire.
Between 2011 and 2013, a gargantuan structure took shape in the Utah desert. Covering one million square feet and costing over a billion dollars, the facility is the largest data center of the National Security Agency to date. Designed to hold what the Washington Post called “oceans of bulk data,” it’s a tangible manifestation of an American empire based in virtual space, a modern-day watchtower for electronic surveillance.
The scope of US surveillance had been far less conspicuous than the NSA’s architecture (which itself is off limits to the public) until the release in 2013 of top-secret NSA documents by the computer analyst Edward Snowden. These revelations were particularly significant for Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner had for years been bringing cases challenging the legality of surveillance programs, only to see them dismissed due to lack of “standing”—plaintiffs were unable to prove they were subjected to secret surveillance activities. The unmasking of NSA programs has placed Wizner upon decidedly firmer ground. Shortly after the world learned of Snowden, Wizner became his legal advisor.
The National Security Agency’s budget reportedly topped $10 billion in 2013, and the scale and pervasiveness of its programs have shaken the American public and ignited a national debate about surveillance. As Wizner maintains, the NSA has “lost the trust of many people, and more than that, this whole idea that trust is enough to regulate these very powerful institutions has been weakened and undermined.” Beyond government programs, the technology industry has access to unprecedented amounts of personal data that it may commodify or be forced to deliver by the powers that be. Says Wizner, “No secret police ever had dossiers on us that compare with what social media companies have.”
The hazards of such extensive surveillance have been identified in the misuse of cached personal information, but also in the chilling effect surveillance has on civil society. In a 2013 survey, PEN, the world’s oldest international literary and human rights organization, found that NSA surveillance drives US writers to self-censor, and that individuals are increasingly less likely to make career or political choices that might garner unwanted attention. In July 2014, Human Rights Watch released a report on the damaging impact of surveillance on journalism, law, and American democracy, finding that surveillance undermines media freedom and the right to counsel, and ultimately hinders the public’s ability to hold the government to account.
Ben Wizner and I met recently at the ACLU’s offices in New York’s Financial District. Against the drone of helicopters embarking and landing at the heliport on Pier 6, we discussed the ripple effects of US surveillance, the politics of fear, and what it might take for the security state to restore its democratic legitimacy.
—Henry Peck for Guernica
Guernica: How do the Snowden revelations figure into the idea of modern surveillance as a kind of empire?
Ben Wizner: I think there’s a way to misread the Snowden revelations as being a story about the NSA, or even a story about the United States. And while they primarily have been a story about the NSA and the United States, the story within that story is the proliferation of surveillance technology, the plunging costs of data storage, the decreasing effectiveness of democratic controls, and a resulting world in which not just great powers but all powers will have the ability to record and store all human lives. So in that version of the narrative, the United States is both the driver and the shape of things to come. The message is to all people everywhere, about how these technologies will be used to monitor and control our lives—by democratic governments, by despotic governments, by corporations, by powerful entities that collect and aggregate the details of our lives.
Guernica: There are some laws that account for surveillance methods, and some practices that appear beyond the grounds of the law. Does the law support the empire, or does the empire supplant the law?
Ben Wizner: It’s very difficult to describe the way the law interacts with the empire, and the security state. On the one hand, I think there is a real insistence that the empire and the country are governed by the rule of law. And that insistence is sincere, on the part of most of its proponents. On the other hand, it creates a whole language and jurisprudence to disguise what’s really at stake. Let me give you one example of that. Since the Bush administration embraced a criminal torture policy, and essentially made torture systematic and not exceptional, in the US military, in secret CIA black sites, even to some American citizens on American soil, like Jose Padilla, not a single victim of that regime has been allowed a day in court. Even those who are indisputably innocent and victims of mistaken identity have not been allowed to go in and vindicate their rights and try to hold anyone accountable. Every single one of those cases was dismissed on some kind of justiciability ground. Most commonly the government would argue, and the court would accept, that the subject matter was a state secret, that whether the law was violated or not, unfortunately there was no way to adjudicate those claims without exposing the state’s most important secrets and harming the national security of the country.
We have no tradition in this country of holding our intelligence community officials legally responsible for law-breaking.
Now this was a pure legal fiction. I say that because secrecy was not really what was at stake. It would have been possible to litigate these claims on public evidence; many of the victims whose cases we tried to bring in US courts received compensation from European countries for their secondary roles in the same events. But there’s a discomfort and aversion to calling it what it is, which is impunity. We have no tradition in this country of holding our intelligence community officials legally responsible for law-breaking. That is because, I believe, it’s their job to break the law—there has been a political decision since World War II that we’re going to have secret spy agencies, and that we are going to task them with going abroad and breaking the law, and that to try to pull that back into a system of laws would be perverse and would cause the entire thing to collapse. That’s not a conversation that the security state wants to have, because there’s no limiting principle to it. But that’s the outcome that has to be achieved, and then we work backwards to a set of anodyne-sounding legal principles that reach the same outcome, whether it’s state secrecy, whether it’s standing to bring a case if it’s about surveillance, whether it’s a doctrine of immunity that says that this kind of official can’t be held accountable.
Guernica: But is this exceptional to the US?
Ben Wizner: There are no countries that I’m aware of that place legal restrictions on their ability to do surveillance abroad. So the difference is that the United States has much more capability. It has the infrastructure of the Internet that runs through it, so it has the opportunity to do more surveillance, and it actually has some positive law that authorizes surveillance, where most countries don’t even put anything in writing. Again, that’s not to say that that’s the state of law as it should exist—it shouldn’t. It is just to say that most countries in the world don’t give themselves the license to wage war anywhere in the world, but they do give themselves license to wage surveillance, wherever they can if they’re able to—they just don’t have the capability.
Guernica: You mentioned positive law that authorizes surveillance, and includes some checks and balances. Is the Foreign Intelligence Surveillance Court (FISA Court) an effective check?
Ben Wizner: Remember the FISA Court was essentially the outcome of the last great surveillance debate that we had in this country during the 1970s. One thing that that debate had in common with this one is that it began with a dramatic act of law-breaking. There would have been no surveillance debate had not a bunch of advocates broken into an FBI office in Media, Pennsylvania, stolen all the files, and mailed them to the Washington Post, which led to a series of disclosures, hearings, and then ultimately this FISA regime. I think that it had its successes, but the real scandal with the FISA Court is the way that its mission was secretly transformed in the last decade. It was created to be a court that authorized warrants for secret surveillance. Many courts play that role.
What happened with the FISA Court in the last several years is it started being more than that. It started writing thirty-, sixty-, ninety-page opinions that analyze the legality and constitutionality of surveillance programs. Any court that hears only from one side should not be in the business of doing that. Having the government come in and say, “We believe that the Fourth Amendment permits us to do X, Y, and Z, and here’s a whole new surveillance program that we want to run,” and the court has no opportunity to hear any opposing views from academics, from human rights activists, from others. So one of the reforms that’s being discussed right now would create a structure for at least a quasi-adversarial system within the courts. So that you don’t have a court adjudicating constitutional questions with one side.
I think the other way in which that court has been criticized is that it’s been called a rubber stamp. If you look at the statistics for the number of warrants approved and the number sought, it’s something well over 99 percent. People who work in the system say those numbers are misleading, that there are many times when the court looks at an application and says, “This is not adequate, go back.” I will say that however permissive the FISA Court was, it was too restrictive for Dick Cheney, David Addington, John Yoo, George Bush. They saw it as a hindrance to what they wanted to do, in 2001, 2002, 2003. And they created a whole program that circumvented that court.
So, it does play some role. Having any institution where the government has to go and justify the surveillance that it’s doing is going to be important. It creates some obligation and some obstacle. What we worry about now is that some of the new statutes from 2008, for example, allow that court to authorize programmatic surveillance rather than individual surveillance, allow that court to issue the kinds of orders that we saw from the Snowden revelations, that say things like, “Verizon shall turn over all of its records on all of its customers every day, and we’ll store them for five years.” That, although they have to go to a court to do it, reduces the role of the court to ministerial rather than judicial.
The prevailing Internet business model is one in which we agree to be spied on by corporations in exchange for use of free services.
Guernica: The idea of empire tends to suggest power connected to wealth, whereas the surveillance empire seems to wield more of a psychological power.
Ben Wizner: Yes, unless you’re talking about other kinds of empires. If Silicon Valley is the seat of an empire, then you talk about the surveillance economy. The prevailing Internet business model is one in which we agree to be spied on by corporations in exchange for use of free services. If we’ve learned anything in the last year, it’s that you cannot draw a firm line between corporate surveillance and government surveillance. If the NSA lost all of its ability to collect and intercept information, but could still get that information through legal process from Google and Facebook, they wouldn’t lose that much. No secret police ever had dossiers on us that compare with what social media companies have.
Guernica: Several technology giants expressed outrage after the Snowden revelations showed how their systems were being accessed by the NSA. How has the tech industry entered the surveillance empire—wittingly or not?
Ben Wizner: I think one of the great contributions that Snowden has made is to make some very powerful tech companies adverse to governments. When these companies and government work hand in glove, in secret, that is a major threat to liberty. But these tech companies, which are amassing some of the biggest fortunes in the history of the world, are among the few entities that have the power and the clout and the standing to really take on the security state. And again, I want them to be adverse to each other. I want the tech companies to see it as part of their responsibility to protect users from government. But I want the government to be a more active regulator of tech companies and to protect us as consumers from the depredations of these companies. I’d like to see the Federal Trade Commission be a more aggressive regulator against some of these companies, just as I’d like to see these companies stand between us and the NSA and the GCHQ.
I do think that we’ve already seen a lot of evidence in the last year that the companies are more willing to stand up to the security state. Now of course there are some people, including on the left, who think that civil libertarians are picking the wrong battle. That over the next several decades, it’s the Internet Goliaths and not the security state that are going to be a larger threat to democracy—by destroying and hollowing out the middle class, creating such disparities that free societies won’t be able to sustain themselves. I think that’s a provocation, a very interesting argument, and something we need to worry about and think about as technology companies essentially destroy professions one by one. But I’m comfortable with the position civil liberties organizations are taking that the surveillance by the state is at least a more immediate threat to free societies.
Guernica: It seems many people give their information willingly without thinking that it will be abused. But what about fear as a tool of the surveillance empire, or the construction of fear to further its aims?
Ben Wizner: We talked a lot about fear in the aftermath of 9/11. Immediately after 9/11 you had anthrax, you had snipers—there was a very strange atmosphere in the United States. But that’s not the way America feels in 2014. I don’t think most Americans are worried about militants from the Islamic State coming over from Syria and the Sunni Triangle and waging war in Peoria. I really don’t.
I think it operates much more as a political discourse in Washington, and the fear is the fear of being portrayed in a certain way, not the fear of terrorists attacking. And it’s a very odd kind of discourse that’s been created, where expressions of fear by politicians allow them to portray themselves as strong, and professions of courage by politicians put them in the weak, pre-9/11 box. What I mean by that is those who say that 9/11 changed everything, that we’re facing a new kind of threat, that terrorism poses an existential threat to our societies, that the threat is so severe that we need to throw away or bend our old legal institutions, we have to come up with new systems for detention, we have to allow interrogations that have always been considered illegal, we need to fire missiles around the world with rules that are too loose, we need to do that because they are coming to get us—those are the people who call themselves tough on terror. Those are the hard-nosed warriors.
On the flip side, those political leaders who say that this is a criminal threat, these people are criminals, they’re not warriors, our institutions are strong, we have been able to face up to these kinds of threats in the past without shredding our Constitution, we can do it again now, we have to enforce our laws, even if that means holding our own leaders accountable for breaking them—those people are dismissed as foolish and naïve and having a pre-9/11 mindset, when exactly the opposite is true.
Guernica: Do you think Americans should be more afraid of terrorism?
Ben Wizner: No, I think the opposite. I think it’s imperative that we be able to contextualize the threat of terrorism. You do actually hear this talk in some forward-thinking military circles. The word they use is “resilience.” Politicians are afraid to talk this way for the reasons I described earlier, but people in the military understand it. Resilience is the idea that terrorism is a threat that will never be eradicated but will not destroy us, so we need to respond to it rationally and proportionately. If there are a few hundred people in the world who are doing us harm, should we be spending twenty million dollars for each one of them, when there are other threats that are more immediate and more serious, like climate change?
There is a lot of progressive thinking about this within the security state, especially in the military, but I think also in the intelligence agencies. There are studies being written about climate, for example, and how it’s a national security threat to the United States, how it will affect the Southern Hemisphere, and how that will affect us in lots of ways.
Guernica: I’m wondering also about how invoking “national security” contributes to the production of fear. Keith Alexander’s pronouncement that the Snowden revelations caused “irreversible and significant damage to our country” was not at all precise, but heightened the sense of severity in security terms. There’s secrecy here—not disclosing how the revelations are damaging, or what the consequences are, but assuring you they are real.
Ben Wizner: Right, although I think they’ve had a much harder time doing that in the past year. And I think that the Snowden revelations have been quite corrosive to their authority and credibility. The video that you’ve seen on a loop, and that did more damage to the security state than anything else, is the director of national intelligence, James Clapper, saying under oath in congressional testimony that the NSA does not collect any records on millions of Americans. That was a lie. It wasn’t a lie to Congress, as it’s been described, because the people in Congress asking the question knew that it was a lie—it was a lie to the rest of us. And there have been many more lies that have been revealed in the last year.
This whole idea that trust is enough to regulate these very powerful institutions has been weakened and undermined.
I say it’s corrosive because the authority of the security state rests so much on trust. “Trust us, we don’t need courts to adjudicate this because we have a good system of rules in here. People who violate our rules will be punished, don’t worry. We don’t need the full Congress to know everything because we’ve told a few members of Congress—the ones, of course, who are closest to us and are more enablers than overseers.” I think that the security state in the last year has been thrown wildly off balance, has lost control of the narrative. It had been accustomed to saying words like “terrorism” and “national security” talismanically, and to having the rest of us fall into line, and that has not happened. And not just because stories keep coming out and they don’t know what’s coming out next, but also because they have lost the trust of many people, and more than that, this whole idea that trust is enough to regulate these very powerful institutions has been weakened and undermined.
Guernica: So what does this mean for the security state, if trust is a building block of it?
Ben Wizner: Time will tell. This is not a victory lap—I see the security state as a very, very worthy adversary. It still has enormous resources and a lot of advantages, and many decades of experience in nimbly responding to moments of crisis and renewed energetic oversight. But then again the goal has never been to dismantle it, at least for us. The goal has been, in some sense, to restore its democratic legitimacy. And to restore its democratic legitimacy is to end the programs that can’t survive public scrutiny, and to put the others on sounder legal footing after open public debate. And this is what Snowden has said if you listen to him. I mean, he certainly has his own ideas for what he’d like the outcome to be, but mainly he has been a proceduralist. He talks about bringing the people back to the table. You’re reminded of what the president’s first defense was in June of 2013—he said these activities have been approved by all three branches of government. But again, that was the problem. Not a very strong defense. If now that the public has been brought in these programs are being ended, it shows that they didn’t have support or legitimacy, and too much was concealed. So I don’t think of the question as: What will the outcome be? There will be no outcome. The question is: How will these forces play out against each other?
Guernica: As you said, your goal has never been to dismantle this entity. How do you determine how much surveillance is necessary to keep America safe?
Ben Wizner: You might compare this issue to nuclear proliferation. We’re talking about technologies that can be dangerous, that will get progressively easier to construct, and that we will need, eventually, to come to terms with globally on how to control them. We’re at a stage right now, which is 1949, in that there are a couple of countries that are capable of dominating the field here. But in a much faster way than with nuclear proliferation, these technologies are going to be available to every country in a short time. So we’re all going to have to decide.
Right now America’s position has been, “We have a big enough head start here that we don’t want any kind of global regulation of these authorities.” If you think about something like Stuxnet, and the hubris that goes into unleashing that kind of new tool on the world, it depends on the belief that it can’t be done to us or that our defense will always be stronger. Add onto that that the very nature of surveillance, and especially mass surveillance, relies on the manufacture of vulnerabilities in a system that we all rely on. And so, in order for the NSA or the GCHQ to be able to suck up vast amounts of Internet traffic, they have to either create or discover and maintain vulnerabilities that can be found by other bad actors.
Guernica: This is especially pressing as we see more overlap between civilian and military control of cybersecurity than in other civilian infrastructure.
Ben Wizner: Right, but even the military is divided here. And there are sizeable parts of the military that are devoted to cyber defense, and that would put the dial in a slightly different place. We’re talking about the balance of offense and defense here. And some of the real cyber experts from within the government will be the first to say that it’s more important that we protect ourselves, say, from China, than we be able to attack China, because our system is worth more. If you had an army of 100,000 people and its job was to attack and defend, you wouldn’t send 99,000 of them to Iraq, and protect the country with 1,000. There’s a way in which the addiction to these mass surveillance tools has weakened a global infrastructure, and I think that that tension—the fact that there is a tension and sometimes conflict between surveillance and security when it comes to surveillance and cyber defense—is something that the general public has not grasped. If they were told that Edward Snowden cared more about cybersecurity than Keith Alexander, they would think that that was some kind of sick joke. It happens to be true.
The irony is that if any entity in the world is capable of really securing the Internet, it’s the NSA.
Guernica: Former Secretary of Defense Leon Panetta said in 2012 that the Internet “is a battlefield of the future.” In this space, military targets are largely indistinguishable from civilian actors. Can the Internet be made a truly secure space?
Ben Wizner: The irony is that if any entity in the world is capable of really securing the Internet, it’s the NSA. Every year they hire the best and the brightest engineers, mathematicians, people who are not evil at all, who are really dedicated public servants, interested in hard problems, and if more of them were put on defense than offense, they could make the Internet and our communications systems vastly more secure from the kinds of cyber threats that we hear about all the time. There would be a cost. The cost would be that it would make surveillance more difficult and more expensive. But the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the US Constitution were enacted to make the job of law enforcement more difficult, not easier. It’s a feature, and not a bug, to create inefficiencies in the government’s ability to exercise power and conduct surveillance. And I think that that’s part of what’s been lost over the last decade or more, which is the notion that if something would arguably make us more secure, that’s the end of the argument and not just the beginning, not just a factor.
Guernica: Your nuclear proliferation analogy suggests deterrence, which is playing out in a different way in the chilling effect surveillance is having on journalism, civil society, and public expression.
Ben Wizner: That will happen more as time goes on, as a function of the kind of mission creep that is inevitable with these systems. The NSA sitting on this mountain of data, mountain of human lives, is not going to be the immediate threat to most citizens. But when that information passes to law enforcement agencies, and eventually to local law enforcement agencies that have access to it from handheld devices, when the Big Brother manifests itself through the Little Brother—then I think people will wake up to what a different society we’ve created.
One of the examples that I like to use is that of our friend Professor Petraeus, who in my mind did nothing that should have required him to lose his job. One woman sent a nasty, anonymous email to a second woman, and before we knew it the FBI was looking through thousands of David Petraeus’s private emails. He didn’t even have to be suspected of anything, he wasn’t the target of an investigation, but because this information is collected, never deleted, and law enforcement can get to it, it creates these databases of ruin, this sort of massive surveillance time machine.
What’s protecting us from the worst uses of that right now are rules. How robust will those rules be in the face of another terrorist attack, especially when it’s shown conclusively that the dots that could have been connected were in this database? If you collect all the dots, they’ll always connect in hindsight. That’s what Snowden was talking about when he said that you can have a “turnkey tyranny” situation. But even if you don’t believe that our whole democratic system will be switched off right away, it’s hard not to expect that the lockbox that safeguards all this private information will be unlocked. And then, I think, the result will be a profound kind of chill—if we know that the entities with the capability to record everything are making it available to people who have more immediate control over our lives.
Guernica: There are many possible ramifications to this, like the disclosure of healthcare records.
Ben Wizner: Some people have experienced a corporate version of this already with their credit scores. The ways in which the information about them is being collected are invisible, but the results are very concrete, and the system of due process is woefully inadequate. Try to get a mistake fixed on a credit score and you find yourself in Kafka world. But government will be doing the same kinds of things. It is in some sense already—there are preferred lines at airports that are the result of algorithms and information that is collected. You know, we may have secret citizen scores someday that tell agents of the state what level of scrutiny to apply to us in various security interactions. Surveillance isn’t just about privacy—what do they know—it’s about power and process and fairness.
Guernica: You’ve been working on cases against the intelligence community for a long time. How has this work evolved in the past year since the Snowden revelations?
Ben Wizner: The general atmosphere has changed a lot in the past year. People see courts and Congress as these isolated institutions that do what they’re going to do, and it’s really not true. They’re very sensitive to the public and the zeitgeist. If you read judicial opinions in the years after 9/11, they all began with descriptions of the 9/11 attacks. As they were denying an innocent torture victim his day in court, we were treated to a description of how terrorists attacked the Twin Towers and killed thousands of Americans. If you read decisions by judges in the last year, you will notice the profound skepticism that they now have toward government claims. They are less deferential as a result of this new, remarkable debate that is going on. That is not to say that the intelligence community was revealed to have a glass jaw. There are still massive budgets, massive authority, huge capabilities—the NSA will survive and thrive after the democratic reforms from courts and from Congress. But there is a different atmosphere. The security state has to make its case now, rather than just relying on residual fear.
Guernica: What qualities are needed to confront the surveillance empire?
Ben Wizner: I do genuinely admire courage. Courage creates possibilities that people did not know were there before. Glenn Greenwald’s dismissiveness toward the security state—while it hasn’t made him a lot of friends in the mainstream media, it has created much more space for them to do their jobs. I don’t think we would have seen the New York Times and the Washington Post report these stories as aggressively if you hadn’t had someone with Greenwald’s courage out in front.
We will see in the next months and years whether Snowden has had a similar effect on people who hold security clearances within the system. There are many millions of them, we can’t and shouldn’t expect most of them to do what he did, and it’s unfair to demand that of anyone else. But a few principled and conscientious people who are willing to risk their own security and freedom can make a major difference. If they do this, I hope that they will choose the model that he did, which is to work through journalism rather than taking it on themselves entirely to decide what the public should know and not know. I think Snowden was wise beyond his years to realize that a model that corrected for his own biases would be better for the country, better for the system. Even if he doesn’t always agree with what journalists publish or don’t publish, it’s a better model to not have it all on his shoulders—even if the legal consequences are all on his shoulders.
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