Saturday, October 15, 2016

Privacy: How Much is Enough?

By Bill Creasy

The movie Snowden (2016) by Oliver Stone again raises the issues that Snowden himself raised in 2013. How much electronic surveillance should the federal government be allowed to do in pursuit of a small number of terrorists? Unfortunately, the movie doesn't give an answer. It does give some background on Edward Snowden. 
According to the movie, Snowden (played by Joseph Gordon-Levitt) was deeply affected by the events of 9/11/01. As a patriotic young man, he first joined the U.S. Army Special Forces, but he shattered his legs during basic training. He got a job with the CIA in 2006 and wrote an important program designed to back up huge amounts of data. The program later found uses in other unintended areas including targeting drone strikes. 
He had a series of intelligence positions as a contractor until 2013. In the process, he became familiar with the U.S. Government program for mass data collection of both U.S. citizens and noncitizens, including phone calls, email, and social media. The movie illustrates how easily this database can be searched for personal information on essentially anyone. Snowdon admitted to using it once to check on his girlfriend.

The goal of the data collection is to look for terrorist networks. But a search to the third degree of separation (searches of all contacts of contacts of contacts of a suspect) gives over 2 million people, whose data could be viewed with no need of a specific court order or informed consent. So if you happen to have the same dentist or delivery person or Facebook friend as a terrorist suspect, the NSA can search all your email for anything that looks incriminating or that looks like you are connected to any other terrorist suspect. 
Snowden felt obligated to report this surveillance to the press, even though he knew that such an act would make him a criminal and a target of all the U.S. intelligence agencies, cause him lose his job in Hawaii and his security clearance, and threaten his relationship with his long-time girlfriend.

A problem with the movie is the depiction of Snowden's personality. The movie has the "feel" of a fictional movie story. Perhaps that is just Oliver Stone's directoral style. Snowden appears in person at the end of the movie in a cameo. There are documentaries and interviews of Snowden himself, for example the documenary Citizenfour by Laura Poitras. (Poitras, Glenn Greenwald, and Ewen MacAskill were the first journalists that Snowden talked to in Hong Kong.) Snowden was also interviewed remotely in a public event at Johns Hopkins University while he was in Russia [1]. So there are sources for seeing Snowden himself on video without the filter of a movie.

Snowden doesn't seem like a movie star or a narcissist, just a fairly average, smart, computer nerd. He seems to have remarkably calm attitude about his actions. Perhaps he has developed a emotional detachment from his chosen role as the center of a world-wide controversy and as a person taking on the federal intelligence agencies. That kind of attitude is not easily captured by actors. 
It is hard to see Edward Snowden and his background and call him a traitor to the U.S. This is a clear message of the movie. He hasn't done anything to hurt the U.S. for his personal gain. He claims no one has been hurt by his data release, and no intelligence agency has said anyone was hurt. He has acted in a way that is consistent with a strong belief in the ideals of the U.S. founding documents, including in freedom and privacy. 
But it's also hard to judge his ideas about the problem that he has brought to light. Is he arguing that the government shouldn't do any surveillance or intelligence collection? How does he reply to the people who are worried about terrorists? There are officials who say antiterrorism is an important social need, and what Americans don't know about surveillance won't hurt them. They say that many people voluntarily put personal information on the internet, so why should they expect privacy? In short, how much privacy do people need?

There is an ideological conflict between those who think that the government should have access to any electronic information to track criminals and terrorists, and those who think privacy is a right. Neither extreme is practical, but both can make arguments to support their extreme. So we must consider what privacy is for and what it is worth. These are philosophical questions as well as practical ones. Is it possible to balance the practical with the idealism, and the personal vs. social?

People have an instinctive, emotional desire for privacy, especially if they think they are around people they don't trust. If others aren't trustworthy, they may use embarrassing information for blackmail or coercion. But once people feel safe in a situation, they are less worried about protecting themselves, and there are rewards for being trusting. People who are charming or good leaders tend to reveal more about themselves in order to get people to like them and to do what they want. So even on this non-rational level, privacy is in a balance with openness.

When it comes to social policy, a rational analysis is necessary. We can't decide how private other people need to be based on our own feelings. We have to break up the problem into several cases (but this may not be an exhaustive list):
1. Privacy for criminals. These include protests against the government, since these can be defined as criminal by the government, but the protest can have a higher principle or oppose the laws themselves.
2. Privacy for business secrets or competitive advantage.
3. Privacy for military.
4. Privacy of sexual relationships.
5. Privacy for making arts or simply for making harmless mistakes, because the thought that someone is watching will keep a person from trying some action that is novel
6. Privacy as a basic, irrevocable right that the government can't take away

All these facets of the issue are different, and they can't all be covered in detail here. Some of the cases are easy to agree on. For the first case, it is easy to see why a criminal wants privacy, because without it someone will try to stop them. Clearly, this is a case for a social agreement to invade the privacy of individuals to investigate crimes. The legal and police systems are set up according to that agreement. If someone breaks the law, their privacy will be invaded. Even a suspect of a crime may be investigated, within accepted rules and limits such as those in the Bill of Rights. 
Of course, no system is perfect. The government can make laws that no one likes, and then label the protesters against those laws as criminals. It can keep secrets, and prosecute anyone who reveals the secrets. Snowden is charged under the Espionage Act, a law to prevent spying, and any trial would be held in secret and without public oversight. Hence, the law creates its own Catch 22: any effort to inform the public about the law is defined as illegal, but the only way to get rid of the law is by public opposition.

Daniel Ellsburg, the whistleblower who published the Pentagon Papers, said that whistleblowers are important.  But the courage for a person to support the country or the president is easier and much more common (even in the face of death) than whistleblowers who may loose their jobs, clearances, or freedom to oppose the social conventions.  In trials, they can't make a case or explain their motives in open court.  He said that Snowden or Chelsea Manning wouldn't have been heard in open civil court [2].

Snowden echoed the same idea, saying, "Whistleblowers are really rare and they have to be willing to strike a match to their whole life and burn it." [1]
Case 2 is generally considered almost sancrosant in a capitalist society. Every business is expected and allowed to keep secrets. Fortunately, the Founders set up the patent system, which allows businesses and individuals to publish their methods as patents and still own the rights to them as property. 
Case 3 is also often unquestioned, as long as there is a legitimate need for national defense. The big problem with privacy for national defense is when "endless" wars are declared, like the war on terrorism or the war on drugs. The government, or the military/industrial/government complex and the associated special interests, can use the endless war as protection for indefinite funding and corruption. Citizens should be skeptical of calls for endless wars for this reason. Anything that is labeled as a “war” should be an existential threat to the country that has a definite enemy to be defeated.
Governments should also be concerned about the harm that can be done from a security state. Roger Ebert wrote,
"But the movie [The Lives of Others] is relevant today, as our government ignores habeas corpus, practices secret torture, and asks for the right to wiretap and eavesdrop on its citizens. Such tactics did not save East Germany; they destroyed it, by making it a country its most loyal citizens could no longer believe in." [3]
The endless war on terrorism can also be questioned in terms of whether it is really effective. Kade Crockford from the ACLU said that dragnet surveillance is a lousy method for preventing terrorism. The NSA failed to prevent 9/11 or Boston marathon bombing. It is good for social control, and hence it is used by authoritarian governments. Terrorism is prevented by investigating crimes with probable cause, consistent with rights in the Constitution. NSA has stopped zero terrorist threats from electronic surveillance. [2]
One can argue that the other three cases deserve unrestricted privacy subject to personal choice. Case 4 is a case for personal choice about sexual relationships, either to reveal relationships or not, unless there is a specific dispute that may affect others. Cases 5 and 6 are related in that they assume a personal right to privacy that can't be violated.
Snowden has strong feelings about a right to privacy. Snowden said in a published interview,
"So when we think in the context of the last decade’s infringements upon personal liberty and the last year’s revelations, it’s not about surveillance. It’s about liberty. When people say, “I have nothing to hide,” what they’re saying is, “My rights don’t matter.” Because you don’t need to justify your rights as a citizen—that inverts the model of responsibility. The government must justify its intrusion into your rights. If you stop defending your rights by saying, “I don’t need them in this context” or “I can’t understand this,” they are no longer rights. You have ceded the concept of your own rights. You’ve converted them into something you get as a revocable privilege from the government, something that can be abrogated at its convenience. And that has diminished the measure of liberty within a society." [4]
The general emotional reaction or the legal right to want a privacy right can be hard to accommodate with modern technology. Anyone who uses the internet, a cell phone, or a credit card, leaves a "footprint" in electronic records. Even if the message content is encrypted, there may be a record of the source address and destination. Because information on the internet is send as small packets of data, it is necessary to collect all information in order to get the specific packets that make up a phone conversation or a document. One option is to stay off all electronic media, but this is a Luddite solution to stop technological advance. An effort to encrypt all information takes a constant vigilance by an individual.
Ultimately, the problem of privacy doesn't yield to any simple or ideologically pure answers. In some ways, it is a kind of arms race between those collecting information and those keeping it secret. Snowden made a contribution to publicizing the nature of the arms race and the involvement of the government. It is the responsibility of the rest of us to be vigilant about who is getting information about us and what they are doing with it.

1. Edward Snowden gave a presentation at Johns Hopkins University Schriver Hall as part of the Foreign Affairs Symposium, a student-run lecture series. He gave it via Google Hangouts videophone. The talk was moderated by Daniel J. Solove, the John Harlan Marshall Research Professor of Law at the George Washington University Law School, on Wed., Feb. 17, 2016.
2. Constitution Day panel discussion at Maryland Institute College of Art on Wed., Sept. 17, 2014, with Hasan Elahi (U. Maryland), Daniel Ellsburg, and Kade Crockford (ACLU).
3. Roger Ebert, review of the film "The Lives of Others," 2007.
4. Katrina vanden Heuvel and Stephen F. Cohen, "Snowden: 'I Did What I Did Because I Believe It Is the Right Thing to Do,'" Edward Snowden interview in The Nation magazine, reprinted on, Nov. 11, 2014.

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