Permanent Record(99)

This is the result of two decades of unchecked innovation—the final product of a political and professional class that dreams itself your master. No matter the place, no matter the time, and no matter what you do, your life has now become an open book.



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IF MASS SURVEILLANCE was, by definition, a constant presence in daily life, then I wanted the dangers it posed, and the damage it had already done, to be a constant presence too. Through my disclosures to the press, I wanted to make this system known, its existence a fact that my country, and the world, could not ignore.In the years since 2013, awareness has grown, both in scope and subtlety. But in this social media age, we have always to remind ourselves: awareness alone is not enough.

In America, the initial press reports on the disclosures started a “national conversation,” as President Obama himself conceded. While I appreciated the sentiment, I remember wishing that he had noted that what made it “national,” what made it a “conversation,” was that for the first time the American public was informed enough to have a voice.

The revelations of 2013 particularly roused Congress, both houses of which launched multiple investigations into NSA abuses. Those investigations concluded that the agency had repeatedly lied regarding the nature and efficacy of its mass surveillance programs, even to the most highly cleared Intelligence Committee legislators.

In 2015, a federal court of appeals ruled in the matter of ACLU v. Clapper, a suit challenging the legality of the NSA’s phone records collection program. The court ruled that the NSA’s program had violated even the loose standards of the Patriot Act and, moreover, was most probably unconstitutional. The ruling focused on the NSA’s interpretation of Section 215 of the Patriot Act, which allowed the government to demand from third parties “any tangible thing” that it deemed “relevant” to foreign intelligence and terror investigations. In the court’s opinion, the government’s definition of “relevant” was so expansive as to be virtually meaningless. To call some collected data “relevant” merely because it might become relevant at some amorphous point in the future was “unprecedented and unwarranted.” The court’s refusal to accept the government’s definition caused not a few legal scholars to interpret the ruling as casting doubt on the legitimacy of all government bulk-collection programs predicated on this doctrine of future relevance. In the wake of this opinion, Congress passed the USA Freedom Act, which amended Section 215 to explicitly prohibit the bulk collection of Americans’ phone records. Going forward, those records would remain where they originally had been, in the private control of the telecoms, and the government would have to formally request specific ones with a FISC warrant in hand if it wanted to access them.

ACLU v. Clapper was a notable victory, to be sure. A crucial precedent was set. The court declared that the American public had standing: American citizens had the right to stand in a court of law and challenge the government’s officially secret system of mass surveillance. But as the numerous other cases that resulted from the disclosures continue to wend their slow and deliberate ways through the courts, it becomes ever clearer to me that the American legal resistance to mass surveillance was just the beta phase of what has to be an international opposition movement, fully implemented across both governments and private sector.

The reaction of technocapitalists to the disclosures was immediate and forceful, proving once again that with extreme hazards come unlikely allies. The documents revealed an NSA so determined to pursue any and all information it perceived as being deliberately kept from it that it had undermined the basic encryption protocols of the Internet—making citizens’ financial and medical records, for example, more vulnerable, and in the process harming businesses that relied on their customers entrusting them with such sensitive data. In response, Apple adopted strong default encryption for its iPhones and iPads, and Google followed suit for its Android products and Chromebooks. But perhaps the most important private-sector change occurred when businesses throughout the world set about switching their website platforms, replacing http (Hypertext Transfer Protocol) with the encrypted https (the S signifies security), which helps prevent third-party interception of Web traffic. The year 2016 was a landmark in tech history, the first year since the invention of the Internet that more Web traffic was encrypted than unencrypted.

The Internet is certainly more secure now than it was in 2013, especially given the sudden global recognition of the need for encrypted tools and apps. I’ve been involved with the design and creation of a few of these myself, through my work heading the Freedom of the Press Foundation, a nonprofit organization dedicated to protecting and empowering public-interest journalism in the new millennium. A major part of the organization’s brief is to preserve and strengthen First and Fourth Amendment rights through the development of encryption technologies. To that end, the FPF financially supports Signal, an encrypted texting and call ing platform created by Open Whisper Systems, and develops SecureDrop (originally coded by the late Aaron Swartz), an open-source submission system that allows media organizations to securely accept documents from anonymous whistleblowers and other sources. Today, SecureDrop is available in ten languages and used by more than seventy media organizations around the world, including the New York Times, the Washington Post, the Guardian, and the New Yorker.

In a perfect world, which is to say in a world that doesn’t exist, just laws would make these tools obsolete. But in the only world we have, they have never been more necessary. A change in the law is infinitely more difficult to achieve than a change in a technological standard, and as long as legal innovation lags behind technological innovation institutions will seek to abuse that disparity in the furtherance of their interests. It falls to independent, open-source hardware and software developers to close that gap by providing the vital civil liberties protections that the law may be unable, or unwilling, to guarantee.