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

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And the more severe the consequences of getting caught, the more excessively people self-censor.

CHILLING EFFECTS

Surveillance has a potentially enormous chilling effect on society. US Supreme Court Justice Sonia Sotomayor recognized this in her concurring opinion in a 2012 case about the FBI’s installing a GPS tracker in someone’s car. Her comments were much broader: “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantity of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ ”

Columbia University law professor Eben Moglen wrote that “omnipresent invasive listening creates fear. And that fear is the enemy of reasoned, ordered liberty.” Surveillance is a tactic of intimidation.

In the US, we already see the beginnings of this chilling effect. According to a Human Rights Watch report, journalists covering stories on the intelligence community, national security, and law enforcement have been significantly hampered by government surveillance. Sources are less likely to contact them, and they themselves are worried about being prosecuted. Human Rights Watch concludes that stories in the national interest that need to be reported don’t get reported, and that the public is less informed as a result. That’s the chilling effect right there.

Lawyers working on cases where there is some intelligence interest—foreign government clients, drugs, terrorism—are also affected. Like journalists, they worry that their conversations are monitored and that discussions with their clients will find their way into the prosecution’s hands.

Post-9/11 surveillance has caused writers to self-censor. They avoid writing about and researching certain subjects; they’re careful about communicating with sources, colleagues, or friends abroad. A Pew Research Center study conducted just after the first Snowden articles were published found that people didn’t want to talk about the NSA online. A broader Harris poll found that nearly half of Americans have changed what they research, talk about, and write about because of NSA surveillance. Surveillance has chilled Internet use by Muslim Americans, and by groups like environmentalists, gun-rights activists, drug policy advocates, and human rights workers. After the Snowden revelations of 2013, people across the world were less likely to search personally sensitive terms on Google.

A 2014 report from the UN High Commissioner on Human Rights noted, “Even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression

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and association.”

This isn’t paranoia. In 2012, French president Nicolas Sarkozy said in a campaign speech, “Anyone who regularly consults internet sites which promote terror or hatred or violence will be sentenced to prison.”

This fear of scrutiny isn’t just about the present; it’s about the past as well. Politicians already live in a world where the opposition follows them around constantly with cameras, hoping to record something that can be taken out of context. Everything they’ve said and done in the past is pored through and judged in the present, with an exactitude far greater than was imaginable only a few years ago. Imagine this being normal for every job applicant.

Of course, surveillance doesn’t affect everyone equally. Some of us are unconcerned about government surveillance, and therefore not affected at all. Others of us, especially those of us in religious, social, ethnic, and economic groups that are out of favor with the ruling elite, will be affected more.

Jeremy Bentham’s key observation in conceiving his panopticon was that people become conformist and compliant when they believe they are being observed. The panopticon is an architecture of social control. Think of how you act when a police car is driving next to you, or how an entire country acts when state agents are listening to phone calls. When we know everything is being recorded, we are less likely to speak freely and act individually. When we are constantly under the threat of judgment, criticism, and correction for our actions, we become fearful that—either now or in the uncertain future— data we leave behind will be brought back to implicate us, by whatever authority has then become focused upon our once-private and innocent acts. In response, we do nothing out of the ordinary. We lose our individuality, and society stagnates. We don’t question or challenge power. We become obedient and submissive. We’re less free.

INHIBITING DISSENT AND SOCIAL CHANGE

These chilling effects are especially damaging to political discourse. There is value in dissent. And, perversely, there can be value in lawbreaking. These are both ways we improve as a society. Ubiquitous mass surveillance is the enemy of democracy, liberty, freedom, and progress.

Defending this assertion involves a subtle argument—something I wrote about in my previous book Liars and Outliers—but it’s vitally important to society. Think about it this way. Across the US, states are on the verge of reversing decades-old laws about homosexual relationships and marijuana use. If the old laws could have been perfectly enforced through surveillance, society would never have reached the point where the majority of citizens thought those things were okay. There has to be a period where they are still illegal yet increasingly tolerated, so that people can look around and say, “You know, that wasn’t so bad.” Yes, the process takes decades, but it’s a process that can’t happen without lawbreaking. Frank Zappa said something similar in 1971: “Without deviation from the norm, progress is not possible.”

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The perfect enforcement that comes with ubiquitous government surveillance chills this process. We need imperfect security—systems that free people to try new things, much the way off-the-record brainstorming sessions loosen inhibitions and foster creativity. If we don’t have that, we can’t slowly move from a thing’s being illegal and not okay, to illegal and not sure, to illegal and probably okay, and finally to legal.

This is an important point. Freedoms we now take for granted were often at one time viewed as threatening or even criminal by the past power structure. Those changes might never have happened if the authorities had been able to achieve social control through surveillance.

This is one of the main reasons all of us should care about the emerging architecture of surveillance, even if we are not personally chilled by its existence. We suffer the effects because people around us will be less likely to proclaim new political or social ideas, or act out of the ordinary. If J. Edgar Hoover’s surveillance of Martin Luther King Jr. had been successful in silencing him, it would have affected far more people than King and his family.

Of course, many things that are illegal will rightly remain illegal forever: theft, murder, and so on. Taken to the extreme, though, perfect enforcement could have unforeseen repercussions. What does it mean for society if the police can track your car 24/7, and then mail you a bill at the end of the month itemizing every time you sped, ran a red light, made an illegal left turn, or followed the car in front of you too closely? Or if your township can use aerial surveillance to automatically fine you for failing to mow your lawn or shovel your walk regularly? Our legal systems are largely based on human judgment. And while there are risks associated with biased and prejudiced judgments, there are also risks associated with replacing that judgment with algorithmic efficiency.

Ubiquitous surveillance could lead to the kind of society depicted in the 2002 Tom Cruise movie Minority Report, where people can become the subject of police investigations before they commit a crime. Already law enforcement agencies make use of predictive analytic tools to identify suspects and direct investigations. It’s a short step from there to the world of Big Brother and thoughtcrime.

This notion of making certain crimes impossible to get away with is new—a potential result of all this new technology—and it’s something we need to think about carefully before we implement it. As law professor Yochai Benkler said, “Imperfection is a core dimension of freedom.”

SECRECY CREEP

Secrecy generally shrouds government surveillance, and it poses a danger to a free and open society.

In the US, this has manifested itself in several ways. First, the government has greatly expanded what can be considered secret. One of the truisms of national security is that secrecy is necessary in matters of intelligence, foreign policy, and defense. If the government made certain things public—troop movements, weapons capabilities,

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negotiating positions—the enemy would alter its behavior to its own advantage. This notion of military secrecy has been true for millennia, but recently has changed dramatically. I’m using the US as an example here. In World War I, we were concerned about the secrecy of specific facts, like the location of military units and the precise plans of a battle. In World War II, we extended that secrecy to both large-scale operations and entire areas of knowledge. Not only was our program to build an atomic bomb secret; the entire science of nuclear weaponry was secret. After 9/11, we generalized further, and now almost anything can be a secret.

The result is that US government secrecy has exploded. No one knows the exact number—it’s secret, of course—but reasonable estimates are that hundreds of billions of pages of government documents are classified in the US each year. At the same time, the number of people with security clearances has similarly mushroomed. As of October 2012, almost 5 million people in the US had security clearances (1.4 million at the topsecret level), a 50% increase since 1999.

Pretty much all the details of NSA surveillance are classified, lest they tip off the bad guys. (I’ll return to that argument in Chapter 13.) Pre-Snowden, you weren’t allowed to read the Presidential Policy Directives that authorized much of NSA surveillance. You weren’t even allowed to read the court orders that authorized this surveillance. It was all classified, and it still would be if the release of the Snowden documents hadn’t resulted in a bunch of government declassifications.

The NSA and the military aren’t the only organizations increasing their levels of secrecy. Local law enforcement is starting to similarly cloak its own surveillance actions. For example, police requests for cell phone surveillance are routinely sealed by the courts that authorize them. (The UK police won’t even admit that they use the technology.) There are many more examples of this.

This kind of secrecy weakens the checks and balances we have in place to oversee surveillance and, more broadly, to see that we are all treated fairly by our laws. Since the terrorist attacks of 9/11, FBI and NSA National Security Letters demanding surveillance information from various companies have regularly come with gag orders attached. Those who receive such a letter are prohibited from talking, even in general terms, about it. That makes it much harder to fight the letters in court.

Governments are also hiding behind corporate nondisclosure agreements. That’s the reason the FBI and local police give for not revealing the details of their StingRay cell phone surveillance system. That’s why local police departments refuse to divulge details of the commercially developed predictive policing algorithms they use to deploy officers.

The second way government secrecy has manifested itself is that it is being exerted to an extreme degree. The US has a complex legal framework for classification that is increasingly being ignored. The executive branch abuses its state secrets privilege to keep information out of public view. The executive branch keeps secrets from Congress. The NSA keeps secrets from those who oversee its operations—including Congress. Certain members of Congress keep secrets from the rest of Congress. Secret courts keep their own secrets, and even the Supreme Court is increasingly keeping documents secret. In

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Washington, knowledge is currency, and the intelligence community is hoarding it.

The third manifestation of government secrecy is that government has dealt very severely with those who expose its secrets: whistleblowers. President Obama has been exceptionally zealous in prosecuting individuals who have disclosed wrongdoing by government agencies. Since his election in 2008, he has pursued prosecutions against eight people for leaking classified information to the press. There had been only three previous prosecutions since the Espionage Act was passed in 1917.

Intelligence-related whistleblowing is not a legal defense in the US; the Espionage Act prohibits the defendant from explaining why he leaked classified information. Daniel Ellsberg, the first person prosecuted under the law, in 1971, was barred from explaining his actions in court. Former NSA senior executive Thomas Drake, an NSA whistleblower who was prosecuted in 2011, was forbidden to say the words “whistleblowing” and “overclassification” in his trial. Chelsea Manning was prohibited from using a similar defense.

Edward Snowden claims he’s a whistleblower. Many people, including me, agree; others don’t. Secretary of State John Kerry insisted that Snowden should “come back here and stand in our system of justice and make his case,” and former secretary of state Hillary Clinton proclaimed, “If he wishes to return knowing he would be held accountable and also able to present a defense, that is his decision to make.” Both comments are examples of misleading political smoke-blowing. Current law does not permit Snowden to make his case.

Inasmuch as government surveillance requires secrecy, people lose the power to debate and vote on what their government is doing in their name, or tell their elected officials what they think should be done. It’s easy to forget, in the seemingly endless stream of headlines about the NSA and its surveillance programs, that none of it would be known to the public at all if Snowden hadn’t, at great personal cost and risk, exposed what the agency is doing.

ABUSE

In early 2014, someone started a parody Twitter account for Jim Ardis, the mayor of Peoria, Illinois. It was a pretty offensive parody, and it really pissed Ardis off. His anger set off a series of events in which the local police illegally obtained an order demanding that Twitter turn over identity information related to the account, then raided the home of Twitter user Jon Daniel. No charges were filed, mostly because Daniel didn’t do anything wrong, and the ACLU is currently suing Peoria on his behalf.

All surveillance systems are susceptible to abuse. In recent years, politicians have used surveillance to intimidate the opposition and, as we saw above, harass people who annoy them. One example is from 2014: police in New Jersey routinely photographed protesters at events hosted by Governor Chris Christie until the state attorney general ordered them to stop. Also in 2014, we learned that the CIA illegally hacked into computers belonging to staffers from the Senate Intelligence Committee who were overseeing them. In 2013,

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we learned that the NSA had been spying on UN communications, in violation of international law. We know that there have been all sorts of other abuses of state and local government surveillance authorities as well.

Abuses happen inside surveillance organizations as well. For example, NSA employees routinely listen to personal phone calls of Americans overseas, and intercept email and pass racy photos around the office. We learned this from two intercept operators in 2008, and again from Snowden in 2014. We learned from the NSA that its agents sometimes spy on people they know; internally, they call this practice LOVEINT. The NSA’s own audit documents note that the agency broke its own privacy rules 2,776 times in 12 months, from 2011 to 2012. That’s a lot—eight times a day—but the real number is probably much higher. Because of how the NSA polices itself, it essentially decides how many violations it discovers.

This is not a new problem, nor one limited to the NSA. Recent US history illustrates many episodes in which surveillance has been systematically abused: against labor organizers and suspected Communists after World War I, against civil rights leaders, and against Vietnam War protesters. The specifics aren’t pretty, but it’s worth giving a couple of them.

• Through extensive surveillance, J. Edgar Hoover learned of Martin Luther King’s extramarital affairs, and in an anonymous letter he tried to induce him to commit suicide in 1964: “King, look into your heart. You know you are a complete fraud and a great liability to all of us Negroes. White people in this country have enough frauds of their own but I am sure they don’t have one at this time anywhere near your equal. You are no clergyman and you know it. I repeat you are a colossal fraud and an evil, vicious one at that. You could not believe in God… . Clearly you don’t believe in any personal moral principles… . King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do it (this exact number has been selected for a specific reason, it has definite practical significance). You are done. There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation.”

• This is how a Senate investigation described the FBI’s COINTELPRO surveillance program in 1976: “While the declared purposes of these programs were to protect the ‘national security’ or prevent violence, Bureau witnesses admit that many of the targets were nonviolent and most had no connections with a foreign power. Indeed, nonviolent organizations and individuals were targeted because the Bureau believed they represented a ‘potential’ for violence—and nonviolent citizens who were against the war in Vietnam were targeted because they gave ‘aid and comfort’ to violent demonstrators by lending respectability to their cause… . But COINTELPRO was more than simply violating the law or the Constitution. In COINTELPRO the Bureau secretly took the law into its own hands, going beyond the collection of intelligence and beyond its law enforcement function to act outside the legal process altogether and to covertly disrupt, discredit and harass groups and individuals.”

Nothing has changed. Since 9/11, the US has spied on the Occupy movement, pro- and anti-abortion activists, peace activists, and other political protesters.

• The NSA and FBI spied on many prominent Muslim Americans who had nothing to do with terrorism, including Faisal Gill, a longtime Republican Party operative and onetime candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush; Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases; Hooshang Amirahmadi, an Iranian American professor of international relations at Rutgers University; and Nihad Awad, the executive director of the largest Muslim civil rights organization in the country.

• The New York Police Department went undercover into minority neighborhoods. It monitored mosques, infiltrated student and political groups, and spied on entire communities. Again, people were targeted because of their ethnicity, not because of any accusations of crimes or evidence of wrongdoing. Many of these operations were conducted with the help of the CIA, which is prohibited by law from spying on Americans.

There’s plenty more. Boston’s fusion center spied on Veterans for Peace, the women’s antiwar organization Code Pink, and the Occupy movement. In 2013, the city teamed with IBM to deploy a video surveillance system at a music festival. During the same time period, the Pentagon’s Counterintelligence Field Activity spied on all sorts of innocent American civilians—something the Department of Defense is prohibited by law from doing.

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Echoing Hoover’s attempt to intimidate King, the NSA has been collecting data on the porn-viewing habits of Muslim “radicalizers”—not terrorists, but those who through political speech might radicalize others—with the idea of blackmailing them.

In 2010, DEA agents searched an Albany woman’s cell phone—with permission—but then saved the intimate photos they found to create a fake Facebook page for her. When they were sued for this abuse, the government speciously argued that by consenting to the search of her phone, the woman had implicitly consented to identity theft.

Local authorities abuse surveillance capabilities, too. In 2009, the Lower Merion School District, near Philadelphia, lent high schoolers laptops to help them with their homework. School administrators installed spyware on the computers, then recorded students’ chat logs, monitored the websites they visited, and—this is the creepiest— surreptitiously photographed them, often in their bedrooms. This all came to light when an assistant principal confronted student Blake Robbins with pictures of him popping pills like candy. Turns out they were candy—Mike and Ike, to be exact—and the school was successfully sued for its invasive practices.

Aside from such obvious abuses of power, there’s the inevitable expansion of power that accompanies the expansion of any large and powerful bureaucratic system: mission creep. For example, after 9/11, the CIA and the Treasury Department joined forces to gather data on Americans’ financial transactions, with the idea that they could detect the funding of future terrorist groups. This turned out to be a dead end, but the expanded surveillance netted a few money launderers. So it continues.

In the US, surveillance is being used more often, in more cases, against more offenses, than ever before. Surveillance powers justified in the PATRIOT Act as being essential in the fight against terrorism, like “sneak and peek” search warrants, are far more commonly used in non-terrorism investigations, such as searches for drugs. In 2011, the NSA was given authority to conduct surveillance against drug smugglers in addition to its traditional national security concerns. DEA staff were instructed to lie in court to conceal that the NSA passed data to the agency.

The NSA’s term is “parallel construction.” The agency receiving the NSA information must invent some other way of getting at it, one that is admissible in court. The FBI probably got the evidence needed to arrest the hacker Ross Ulbricht, aka Dread Pirate Roberts, who ran the anonymous Silk Road website where people could buy drugs and more, in this way.

Mission creep is also happening in the UK, where surveillance intended to nab terrorists is being used against political protesters, and in all sorts of minor criminal cases: against people who violate a smoking ban, falsify their address, and fail to clean up after their dogs. The country has a lot of cameras, so it “makes sense” to use them as much as possible.

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Other countries provide many more examples. Israel, for instance, gathers intelligence on innocent Palestinians for political persecution. Building the technical means for a surveillance state makes it easy for people and organizations to slip over the line into abuse. Of course, less savory governments abuse surveillance as a matter of course—with no legal protections for their citizens.

All of this matters, even if you happen to trust the government currently in power. A system that is overwhelmingly powerful relies on everyone in power to act perfectly—so much has to go right to prevent meaningful abuse. There are always going to be bad apples—the question is how much harm they are allowed and empowered to do and how much they corrupt the rest of the barrel. Our controls need to work not only when the party we approve of leads the government but also when the party we disapprove of does.

CURTAILING INTERNET FREEDOM

In 2010, then secretary of state Hillary Clinton gave a speech declaring Internet freedom a major US foreign policy goal. To this end, the US State Department funds and supports a variety of programs worldwide, working to counter censorship, promote encryption, and enable anonymity, all designed “to ensure that any child, born anywhere in the world, has access to the global Internet as an open platform on which to innovate, learn, organize, and express herself free from undue interference or censorship.” This agenda has been torpedoed by the awkward realization that the US and other democratic governments conducted the same types of surveillance they have criticized in more repressive countries.

Those repressive countries are seizing on the opportunity, pointing to US surveillance as a justification for their own more draconian Internet policies: more surveillance, more censorship, and a more isolationist Internet that gives individual countries more control over what their citizens see and say. For example, one of the defenses the government of Egypt offered for its plans to monitor social media was that “the US listens in to phone calls, and supervises anyone who could threaten its national security.” Indians are worried that their government will cite the US’s actions to justify surveillance in that country. Both China and Russia publicly called out US hypocrisy.

This affects Internet freedom worldwide. Historically, Internet governance—what little there was—was largely left to the United States, because everyone more or less believed that we were working for the security of the Internet instead of against it. But now that the US has lost much of its credibility, Internet governance is in turmoil. Many of the regulatory bodies that influence the Internet are trying to figure out what sort of leadership model to adopt. Older international standards organizations like the International Telecommunications Union are trying to increase their influence in Internet governance and develop a more nationalist set of rules.

This is the cyber sovereignty movement, and it threatens to fundamentally fragment the Internet. It’s not new, but it has been given an enormous boost from the revelations of NSA spying. Countries like Russia, China, and Saudi Arabia are pushing for much more autonomous control over the portions of the Internet within their borders.

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That, in short, would be a disaster. The Internet is fundamentally a global platform. While countries continue to censor and control, today people in repressive regimes can still read information from and exchange ideas with the rest of the world. Internet freedom is a human rights issue, and one that the US should support.

Facebook’s Mark Zuckerberg publicly took the Obama administration to task on this, writing, “The US government should be the champion for the Internet, not a threat.” He’s right.

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Commercial Fairness and Equality

Accretive Health is a debt collection agency that worked for a number of hospitals in Minnesota. It was in charge of billing and collection for those hospitals, but it also coordinated scheduling, admissions, care plans, and duration of hospital stays. If this sounds like a potential conflict of interest, it was. The agency collected extensive patient data and used it for its own purposes, without disclosing to patients the nature of its involvement in their healthcare. It used information about patient debts when scheduling treatment and harassed patients for money in emergency rooms. The company denied all wrongdoing, but in 2012 settled a Minnesota lawsuit by agreeing not to operate in Minnesota for two to six years. On the one hand, the fact that Accretive was caught and punished shows that the system is working. On the other hand, it also shows how easy it is for our data to be mishandled and misused.

Stories like this demonstrate the considerable risk to society in allowing corporations to conduct mass surveillance. It’s their surveillance that contributes to all of the offenses against civil liberties, social progress, and freedom that I described in the previous chapter. And in addition to enabling government surveillance, corporate surveillance carries its own risks.

SURVEILLANCE-BASED DISCRIMINATION

In a fundamental way, companies use surveillance data to discriminate. They place people into different categories and market goods and services to them differently on the basis of those categories.

“Redlining” is a term from the 1960s to describe a practice that’s much older: banks discriminating against members of minority groups when they tried to purchase homes. Banks would not approve mortgages in minority neighborhoods—they would draw a red line on their maps delineating those zones. Or they would issue mortgages to minorities only if they were buying houses in predominantly minority neighborhoods. It’s illegal, of course, but for a long time banks got away with it. More generally, redlining is the practice of denying or charging more for services by using neighborhood as a proxy for race—and it’s much easier to do on the Internet.

In 2000, Wells Fargo bank created a website to promote its home mortgages. The site featured a “community calculator” to help potential buyers search for neighborhoods. The calculator collected the current ZIP code of the potential customers and steered them to neighborhoods based on the predominant race of that ZIP code. The site referred white residents to white neighborhoods, and black residents to black neighborhoods.

This practice is called weblining, and it has the potential to be much more pervasive and much more discriminatory than traditional redlining. Because corporations collect so much data about us and can compile such detailed profiles, they can influence us in many different ways. A 2014 White House report on big data concluded, “… big data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace.” I think the report understated the risk.

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