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# Data and Goliath The Hidden Battles to Collect Your Data and Control Your World

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16

Social Norms and the Big Data Trade-off

In the preceding three chapters, I outlined a lot of changes that need to happen: changes in government, corporate, and individual behavior. Some of them are technical, but most of them require new laws or at least new policies. At this point many of them are unrealistic, at least in the US. I’m not yet living in a country where the majority of people want these changes, let alone a country where the will of the people easily translates into legislative action.

Most people don’t seem to care whether their intimate details are collected and used by corporations; they think that surveillance by the governments they trust is a necessary prerequisite to keeping them safe. Most people are still overly scared of terrorism. They don’t understand the extent of the surveillance capabilities available to both governments and private parties. They underestimate the amount of surveillance that’s going on and don’t realize that mass government surveillance doesn’t do much to keep us safe. Most people are happy to exchange sensitive personal information for free e-mail, web search, or a platform on which to chat with their friends.

Europe is somewhat different—it regulates corporate surveillance more heavily and government surveillance much less so—but for most purposes the public sentiments are the same.

Before we get meaningful political change, some of our social norms are going to have to change. We need to get to the point where people comprehend the vast extent of surveillance and the enormous concentration of power that flows from it. Once they do, most people will probably say, “That’s just not okay.” We need to summon the political will to fight both the law enforcement and national intelligence communities on the government side, and the government contractors and surveillance industry on the corporate side. And before any of that can happen, there must be some major changes in the way society views and values privacy, security, liberty, trust, and a handful of other abstract concepts that are defining this debate.

This is hard. Public sentiment tends to move towards actual practice. We’re good at accepting the status quo—whatever that is and however recently it has emerged. (Honestly, it blows me away that most of this surveillance has emerged in less than two decades.) We’re growing accustomed to the panopticon. You can see it writ large, when people shrug and say, “What are you going to do?” You can see it in a microcosm every time Facebook degrades its users’ privacy options; people complain in the beginning, but soon get used to it.

What follows in this chapter are all changes in attitude. They’re ways in which we are going to have to modify our feelings and thoughts if we are ever going to get beyond the surveillance society.

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RECALIBRATE OUR FEAR

The PATRIOT Act was signed into law on October 26, 2001, just 45 days after the terrorist attacks against the World Trade Center and the Pentagon. It was a wish list of police and intelligence powers and authorities, passed overwhelmingly in both houses with minimal debate. No one in Congress read it before voting. And almost everyone in the country wanted the law to pass, despite not understanding its provisions.

In 2014, I attended a talk in which Tim Duffy, the chairman and chief executive of the advertising agency M&C Saatchi, tried to improve the messaging of privacy. He suggested “Where do you draw the line?” as a possible framing. But if listeners are scared of terrorists, they will draw the line in such a way as to allow a whole lot of surveillance. Harvard Law School professor Jack Goldsmith pointed out that when we’re scared, more congressional oversight yields more NSA authority.

Fear trumps privacy. Fear of terrorism trumps fear of tyranny. If strong enough, it trumps all the concerns in this book piled together. In the people, it’s fear of the next terrorist attack. In politicians, it’s that and also fear of being blamed for the next terrorist attack. But it’s fear, nonetheless. Recall Prime Minister Cameron in the preceding chapter. This is what I hear again and again from government officials when I ask about the obvious ineffectiveness of mass surveillance against the terrorist threat. Yes, they admit, it hasn’t resulted in any successes; but it’s an insurance policy. They know that their targeted surveillance efforts will fail at some point, and they hope that mass surveillance will be there for backup. True, the odds are low that it will work like that, but they believe they have to do everything possible—both for the security of the country and for the security of their jobs.

Regardless of the magnitude of the threat, mass surveillance is not an effective countermeasure; conventional police and intelligence work is. We need to resist the urge to do something, regardless of whether or not the proposed action is effective.

Keeping the fear stoked is big business. Those in the intelligence community know it’s the basis of their influence and power. And government contractors know it’s where the money for their contracts comes from. Writer and Internet activist Clay Shirky has noted that “institutions will try to preserve the problem to which they are the solution.” Fear is that problem.

It’s a fear that’s stoked by the day’s news. As soon as there’s a horrific crime or a terrorist attack that supposedly could have been prevented if only the FBI or DHS had had access to some data stored by Facebook or encrypted in an iPhone, people will demand to know why the FBI or DHS didn’t have access to that data—why they were prevented from “connecting the dots.” And then the laws will change to give them even more authority. Jack Goldsmith again: “The government will increase its powers to meet the national security threat fully (because the People demand it).”

We need a better way to handle our emotional responses to terrorism than by giving our government carte blanche to violate our freedoms, in some desperate attempt to feel safe again. If we don’t find one, then, as they say, the terrorists will truly have won. One goal of government is to provide security for its people, but in democracies, we need to take risks. A society that refuses risk—in crime, terrorism, or elsewhere—is by definition a police state. And a police state brings with it its own dangers.

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It’s not just politicians who are to blame for this. The media are culpable, too. By fixating on rare and spectacular events, they condition us to behave as if terrorism were much more common than it is and to fear it far out of proportion to its actual incidence. And we are also at fault, if we buy the propaganda the media are selling.

We also need to counter the notion that modern technology makes everything different. In the days and weeks after the 9/11 terrorist attacks, as we debated new laws and new police powers, we heard this sentence: “The Constitution is not a suicide pact.” It expresses a sentiment based in fear, and its meaning is worth unpacking. What it says is something like this: “The people who wrote our laws couldn’t possibly have anticipated the situation we now face. Therefore, the limits they put on police power and the prohibitions they enacted against surveillance should not apply to us. Our situation is unique, and we must ignore all of that.” The primary reason for succumbing to these notions was that we believed that the damage terrorists could cause was so great that we could not conceivably rely on conventional law enforcement means and after-the-fact prosecutions.

It’s just not true. It’s a common psychological fallacy to believe that we live in unique times, that our challenges are totally unlike anything that came before and necessitate ignoring any of the societal controls we previously put in place to check the powers of governmental authorities. President Lincoln succumbed to the fallacy when he suspended habeas corpus during the Civil War. President Wilson did so when he arrested and deported Socialists and labor leaders just after World War I. President Roosevelt did so when he interned Americans of Japanese, German, and Italian descent during World War II. We did it during the Cold War’s McCarthy era. And we are doing it again after 9/11.

Fear isn’t the only way we can react to these threats, and there are many instances in history where society did not give up its rights in an effort to remain safe. In the wake of the horrific 2011 massacre in Norway by Anders Breivik, that country has largely preserved its core values of liberty and openness. And, of course, there’s FDR’s famous line “The only thing we have to fear is fear itself.” Indomitability is the correct response to terrorism.

There’s hope for the US. We don’t always respond to terrorism with fear. Looking back through recent history, the presidents who stood up to terrorism—Truman, Eisenhower, Nixon, Reagan some of the time, Bush the elder—achieved better operational and political results than those who used terrorism as an opportunity for political grandstanding: Carter, Reagan the rest of the time, Bush the younger. We need to recognize the strength of politicians who protect our freedoms in the face of risk, and the weakness of those who cannot solve problems and choose to sacrifice our freedoms instead. More than a decade after 9/11, it’s well past time to move beyond fear and return to our core American values of freedom, liberty, and justice. And there are indications that we are doing so. In 2013, we started seeing a significant shift in Americans’ perceptions

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regarding the trade-off between civil liberties and national security.

RECALIBRATE PRIVACY

Our personal definitions of privacy are both cultural and situational. They were different 100 years ago than they are today, and they’ll be different 100 years from now. They’re different in the US than they are in Europe, Japan, and elsewhere. They’re different across generations.

Right now, the Internet is forcing our attitudes about privacy to shift as never before. That’s because one of the main ways we use it is to learn about each other. Lawyers look up potential jurors. Job seekers look up company executives; company HR departments look up potential employees. Before a first date, people look up each other. This sort of thing even has a name: Google stalking.

Online, we are constantly probing, and occasionally violating, one another’s privacy. This can be pretty uncomfortable. The semi-permanent nature of Internet communications provides all sorts of opportunities for someone to embarrass you. E-mails you send to someone in private can easily be forwarded to others. Kids do this to each other all the time: forwarding private chats, photos, and messages, or showing each other private postings on social networking sites. One of the reasons apps that delete messages and photos after a few seconds are so popular among teenagers is that they help prevent this sort of thing. Old web pages have a way of sticking around. In 2010, WikiLeaks founder Julian Assange’s old OKCupid dating profile was dug up for public discussion.

Even worse are people who use the Internet to shame and harass. Revenge porn—for the most part, ex-boyfriends posting compromising photographs of former girlfriends—is an extreme example. Mug shot extortion sites turn this sort of thing into a business. Mug shots are public record, but they’re not readily available. Owners of mug shot sites acquire the photos in bulk and publish them online, where everybody can find them, then charge individuals to remove their photos from the sites. It is extortion, although technically legal. None of this is going away, even if some instances of it are outlawed in some jurisdictions.

We need to figure this out. Everyone has the ability to buy sophisticated surveillance gear, so we need social norms that tell us when not to use it. We know more about one another than any one of us is comfortable with, so we need to develop social norms around acknowledging what we do know or pretending we don’t. This is essentially the point of David Brin’s 1998 book, The Transparent Society; ubiquitous surveillance is coming and we have to adapt.

The Internet has engendered the greatest generation gap since rock and roll. As Clay Shirky pointed out, it’s not that the elders were wrong about all the changes rock and roll would bring; it’s that they were wrong about how harmful they would be. People adapt. When everyone leaves a public digital trail of their personal thoughts since birth, no one will think twice about its being there. If technology means that everything we say—the regrettable accusations, the banalities, all of it—will be recorded and preserved eternally, we’re going to have to learn to live with that.

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The problem is that we’re too good at adapting, at least in the short term. People who grow up with more surveillance will be more comfortable with it. Some of us went to schools with ID checks and metal detectors. Some of us work at buildings that demand daily badge checks. Most of us who fly in the US now accept TSA searches. And all of us who shop are no longer surprised about massive thefts of credit card numbers. These are all ways in which we have accustomed ourselves to having less privacy. Like many fundamental rights, privacy is one of those things that becomes noticed only when it’s gone. That’s unfortunate, because after it’s gone it’s much harder to regain.

We have to stop the slide. Fundamentally, the argument for privacy is a moral one. It is something we ought to have—not because it is profitable or efficient, but because it is moral. Mass surveillance should be relegated to the dustbin of history, along with so many other practices that humans once considered normal but are now universally recognized as abhorrent. Privacy is a human right. This isn’t a new idea. Privacy is recognized as a fundamental right in the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1970).

It’s in the US Constitution—not explicitly, but it’s implied in the Fourth, Fifth, and Ninth Amendments. It’s part of the 2000 Charter of Fundamental Rights of the European Union. In 2013, the UN General Assembly approved a resolution titled “The right to privacy in the digital age,” affirming that our fundamental right to privacy applies online as well as offline, and the risk of mass surveillance undermines this right.

The principles are enshrined in both national and international law. We need to start following them. Privacy is not a luxury that we can only afford in times of safety. Instead, it’s a value to be preserved. It’s essential for liberty, autonomy, and human dignity. We must understand that privacy is not something to be traded away in some fearful attempt to guarantee security, but something to maintain and protect in order to have real security.

Charter of Fundamental Rights of the European Union (2000)

ARTICLE 7: Respect for private and family life. Everyone has the right to respect for his or her private and family life, home and communications. ARTICLE 8: Protection of personal data. 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.

None of this will happen without a change of attitude. In the end, we’ll get the privacy we as a society demand and not a bit more.

DON’T WAIT

The longer we wait to make changes, the harder it will become. On the corporate side, ubiquitous tracking and personalized advertising are already the norm, and companies have strong lobbying presences to stymie any attempt to change that. California’s Do Not

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Track law is an example of that: it started out as a good idea, but was completely defanged by the time it passed. The natural trajectory of surveillance technology (remember the declining cost from Chapter 2?) and the establishment of a new status quo will make changes much harder to achieve in the future, especially in the US.

It’s not just corporations that oppose change. Politicians like the same data that commercial advertisers do: demographic data, information about individual consumer preferences, political and religious beliefs. They use it in their campaigns, and won’t want to give it up. Convincing them to forgo access to data that helps them with targeted messaging and get-out-the-vote campaigns will be tough. And once someone figures out how to use this data to make elections permanently unfair, as gerrymandering does, change will be even harder.

At a conference last year, I overheard someone saying, “Google Analytics is the crack cocaine of Internet surveillance. Once you see it, you never want to give it up.” More generally, data becomes its own justification. The longer we wait, the more people and organizations become used to having broad access to our data and the more they will fight to maintain that access.

We’re at a unique time to make the sorts of changes I recommend in this book.

The industries that collect and resell our data are powerful, but they’re still relatively new. As they mature and become more entrenched, it will be much harder to make major changes in how they do business.

Snowden has forced government surveillance into the spotlight by revealing the actions of the NSA and GCHQ. This has produced some singular tensions amongst the world’s countries, between Germany and the US in particular. And in the US, this political tension cuts across the traditional partisan divide. There’s an opportunity for real change here. As Chicago mayor and former Obama chief of staff Rahm Emanuel said, “You never want a serious crisis to go to waste.” That’s true here, even if most people don’t realize that this is a crisis.

We’re at a unique moment in the relationship between the US and the EU. Both sides want to harmonize rules about this sort of thing, to make cross-border commerce easier. Things could go one of two ways: Europe could become more permissive to match the US, or the US could become more restrictive to match Europe. Once those rules get equalized, they’ll be harder to change.

We’re also in a unique time in the development of the information age. The Internet is being integrated into everything. We have temporary visibility of these systems. We can make changes now that will stand for decades.

Even so, we need to be prepared to do this all over again.

Technology constantly changes, making new things possible and old laws obsolete. There’s no reason to think that the security, privacy, and anonymity technologies that protect us against today’s threats will work against tomorrow’s.

Political realities also change, and laws change with them. It’s folly to believe that any set of solutions we establish today will hold forever, or even for half a century. A look back at recent US history suggests that gross abuses of executive power—and the resulting big public scandals and mitigating reforms—have occurred every 25 to 30 years. Consider the Palmer Raids in the 1920s, McCarthyism in the 1950s, abuses by the NSA and the FBI in the 1970s, and the ongoing post-9/11 abuses in the 2000s.

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If you think about it, 30 years is about the career length of a professional civil servant. My guess is that’s not a coincidence. What seems to be going on is that we reform, we remember for a while why we implemented those reforms, and then eventually enough people change over in government that we begin to forget. And then we roll back the reforms and have to do the whole thing over again in a new technological context.

The next set of abuses is for another generation to reckon with, though. This one is ours.

I worry that we’re not up to it: that this is generational, and that it will be up to the next generation to make the social shifts necessary to enact policy changes that protect our fundamental privacy. I worry that the generation currently in charge is too scared of the terrorists, and too quick to give corporations anything they want. I hope I’m wrong.

THE BIG DATA TRADE-OFF

Most of this book is about the misuse and abuse of our personal data, but the truth is, this data also offers incredible value for society.

Our data has enormous value when we put it all together. Our movement records help with urban planning. Our financial records enable the police to detect and prevent fraud and money laundering. Our posts and tweets help researchers understand how we tick as a society. There are all sorts of creative and interesting uses for personal data, uses that give birth to new knowledge and make all of our lives better.

Our data is also valuable to each of us individually, to conceal or disclose as we want. And there’s the rub. Using data pits group interest against self-interest, the core tension humanity has been struggling with since we came into existence.

Remember the bargains I talked about in the Introduction. The government offers us this deal: if you let us have all of your data, we can protect you from crime and terrorism. It’s a rip-off. It doesn’t work. And it overemphasizes group security at the expense of individual security.

The bargain Google offers us is similar, and it’s similarly out of balance: if you let us have all of your data and give up your privacy, we will show you advertisements you want to see—and we’ll throw in free web search, e-mail, and all sorts of other services. Companies like Google and Facebook can only make that bargain when enough of us give up our privacy. The group can only benefit if enough individuals acquiesce.

Not all bargains pitting group interest against individual interest are such raw deals. The medical community is about to make a similar bargain with us: let us have all your health data, and we will use it to revolutionize healthcare and improve the lives of

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everyone. In this case, I think they have it right. I don’t think anyone can comprehend how much humanity will benefit from putting all of our health data in a single database and letting researchers access it. Certainly this data is incredibly personal, and is bound to find its way into unintended hands and be used for unintended purposes. But in this particular example, it seems obvious to me that the communal use of the data should take precedence. Others disagree.

Here’s another case that got the balance between group and individual interests right. Social media researcher Reynol Junco analyzes the study habits of his students. Many textbooks are online, and the textbook websites collect an enormous amount of data about how—and how often—students interact with the course material. Junco augments that information with surveillance of his students’ other computer activities. This is incredibly invasive research, but its duration is limited and he is gaining new understanding about how both good and bad students study—and has developed interventions aimed at improving how students learn. Did the group benefit of this study outweigh the individual privacy interest of the subjects who took part in it?

Junco’s subjects consented to being monitored, and his research was approved by a university ethics board—but what about experiments performed by corporations? The dating site OKCupid has been experimenting on its users for years, selectively showing or hiding photos, inflating or deflating compatibility measures, to see how such changes affect people’s behavior on the site. You can argue that we’ve learned from this experimentation, but it’s hard to justify manipulating people in this way without their knowledge or permission.

Again and again, it’s the same tension: group value versus individual value. There’s value in our collective data for evaluating the efficacy of social programs. There’s value in our collective data for market research. There’s value in it for improving government services. There’s value in studying social trends, and predicting future ones. We have to weigh each of these benefits against the risks of the surveillance that enables them.

The big question is this: how do we design systems that make use of our data collectively to benefit society as a whole, while at the same time protecting people individually? Or, to use a term from game theory, how do we find a “Nash equilibrium” for data collection: a balance that creates an optimal overall outcome, even while forgoing optimization of any single facet?

This is it: this is the fundamental issue of the information age. We can solve it, but it will require careful thinking about the specific issues and moral analysis of how the different solutions affect our core values.

I’ve met hardened privacy advocates who nonetheless think it should be a crime not to put your medical data into a society-wide database. I’ve met people who are perfectly fine with permitting the most intimate surveillance by corporations, but want governments never to be able to touch that data. I’ve met people who are fine with government surveillance, but are against anything that has a profit motive attached to it. And I’ve met lots of people who are fine with any of the above.

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As individuals and as a society, we are constantly trying to balance our different values. We never get it completely right. What’s important is that we deliberately engage in the process. Too often the balancing is done for us by governments and corporations with their own agendas.

Whatever our politics, we need to get involved. We don’t want the FBI and NSA to secretly decide what levels of government surveillance are the default on our cell phones; we want Congress to decide matters like these in an open and public debate. We don’t want the governments of China and Russia to decide what censorship capabilities are built into the Internet; we want an international standards body to make those decisions. We don’t want Facebook to decide the extent of privacy we enjoy amongst our friends; we want to decide for ourselves. All of these decisions are bigger and more important than any one organization. They need to be made by a greater and more representative and inclusive institution. We want the public to be able to have open debates about these things, and “we the people” to be able to hold decision makers accountable.

I often turn to a statement by Rev. Martin Luther King Jr: “The arc of history is long, but it bends toward justice.” I am long-term optimistic, even if I remain short-term pessimistic. I think we will overcome our fears, learn how to value our privacy, and put rules in place to reap the benefits of big data while securing ourselves from some of the risks. Right now, we’re seeing the beginnings of a very powerful worldwide movement to recognize privacy as a fundamental human right, not just in the abstract sense we see in so many public pronouncements, but in a meaningful and enforceable way. The EU is leading the charge, but others will follow. The process will take years, possibly decades, but I believe that in half a century people will look at the data practices of today the same way we now view archaic business practices like tenant farming, child labor, and company stores. They’ll look immoral. The start of this movement, more than anything else, will be Edward Snowden’s legacy.

I started this book by talking about data as exhaust: something we all produce as we go about our information-age business. I think I can take that analogy one step further. Data is the pollution problem of the information age, and protecting privacy is the environmental challenge. Almost all computers produce personal information. It stays around, festering. How we deal with it—how we contain it and how we dispose of it—is central to the health of our information economy. Just as we look back today at the early decades of the industrial age and wonder how our ancestors could have ignored pollution in their rush to build an industrial world, our grandchildren will look back at us during these early decades of the information age and judge us on how we addressed the challenge of data collection and misuse.

We should try to make them proud.

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Acknowledgments

For me, writing a book is an exploration of a topic. I don’t know where I’ll end up until I’m done writing. This makes it very hard for me to sell a book. I can’t provide an outline. I can’t even say for sure what the book is about. Publishers don’t tend to go for that.

First, I need to thank my agent, Eric Nelson at the Susan Rabiner Literary Agency, for representing my book before there was a book. He believed that he could sell “the next Schneier book” to a mainstream publisher, and believed it so much that he didn’t ask for any formal agreement before he started.

Second, I need to thank my editor, Jeff Shreve, at Norton. He was willing to buy “the next Schneier book” with only vague assurances as to what it was about. And he was willing to accept my writing process.

I don’t write books from beginning to end. I write them from bottom to top. What I mean is that at every moment I am working on the entire book at once. This has two curious effects. One, the book is complete very soon after I start writing. It’s just not very good, and improves as I keep writing. It just continues to improve as I keep writing. And two, I would keep writing and improving the book forever if allowed to. What I do is arbitrarily define “done” as the moment the book is due.

This process allows me to get detailed feedback on the book throughout the process. Many people read all or parts of the manuscript: Ross Anderson, Steve Bass, Caspar Bowden, Cody Charette, David Campbell, Karen Cooper, Dorothy Denning, Cory Doctorow, Ryan Ellis, Addison Fischer, Camille François, Naomi Gilens, John Gilmore, Jack Goldsmith, Bob Gourley, Bill Herdle, Deborah Hurley, Chrisma Jackson, Reynol Junco, John Kelsey, Alexander Klimburg, David Levari, Stephen Leigh, Harry Lewis, Jun Li, Ken Liu, Alex Loomis, Sascha Meinrath, Aleecia M. McDonald, Pablo Molina, Ramez Naam, Peter Neumann, Joseph Nye, Cirsten Paine, David M. Perry, Leah Plunkett, David Prentiss, Barath Raghavan, Marc Rotenberg, Martin Schneier, Seth David Schoen, Adam Shostack, Peter Swire, Kit Walsh, Sara M. Watson, David Weinberger, Dustin Wenzel, Marcy Wheeler, Richard Willey, Ben Wizner, Josephine Wolff, Jonathan Zittrain, and Shoshana Zuboff. Every one of these people gave me suggestions that I incorporated into the book.

A few people were invaluable in writing this book. Kathleen Seidel is the best researcher I have ever found, and I can no longer imagine writing a book without her help. Same with Rebecca Kessler, who edited the book twice during my writing process and gave me critical suggestions each time. Beth Friedman, who has copyedited everything I have written for over a decade, continues to be irreplaceable.

I would also like to thank Edward Snowden, whose courageous actions resulted in the global conversation we are now having about surveillance. It’s not an exaggeration to say that I would not have written this book had he not done what he did. Also, as a longtime NSA watcher, reading those top-secret documents is pretty cool.

A note about the title. Both my editor and I immediately liked Data and Goliath, but there was a problem. Malcolm Gladwell had recently published a book titled David and Goliath. That wasn’t so bad, but my previous book was titled Liars and Outliers; it was published immediately after Gladwell’s previous book Outliers. Aping him twice seemed too much. In April, I explained my dilemma on my blog, and received an e-mail out of the blue from Gladwell, saying, “i LOVE data and goliath! :-)” So with his blessing—and blurb—the title stayed.

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