Privacy expert Sascha Meinrath on updating our understanding of fundamental freedoms in an era of surveillance.
Next Now: The 21st century has ushered in a new age where all aspects of our lives are impacted by technology. How will humanity anticipate, mitigate, and manage the consequences of AI, robots, quantum computing and more? How do we ensure tech works for the good of all? This Ashoka series sheds light on the wisdom and ideas of leaders in the field.
Below we talk with Sascha Meinrath, an internationally renowned technology policy expert and community internet pioneer. He is the Palmer Chair in Telecommunications at Penn State, the director of X-Lab, and a board member of the Fourth Amendment Advisory Committee that regularly briefs congressional members on privacy issue. He founded the Commotion Wireless Project and the Open Technology Institute, and has widely published in academic and political media outlets. Sascha been an Ashoka Fellow since 2012.
Sascha, is the government spying on us?
Yes. That’s a fact. The U.S government is spying on us. Us means not just residents, not just the global community, but U.S. citizens in the U.S. doing nothing illegal. You are still being spied on.
Everything from your financial records, to your phone calls, to your social media accounts, to your email – it’s all being pulled into surveillance programs operating under different legal umbrellas. One is called “Section 215” – and is in danger of being re-authorized this fall – which enables information sharing between mega corporations like Google, AT&T and others, and the U.S. government. The other major legal umbrella is called “Section 702”, which surveilles the flow of data over the Internet. Then there’s executive order 12333, which gives government agencies far reaching cover to target people. And then likely, there are other surveillance regimes we don’t even know about. In other words: The Snowden files were only the tip of the iceberg, and since the Snowden revelations in 2013, U.S. government surveillance has dramatically increased, not decreased.
That’s scary. How did this all come about?
Surveillance has a very long and sordid history. For example, one early cryptographic mechanism is called the Caesar Cipher, where you substitute one letter for another. The Romans used it. Even then there was surveillance. U.S. government surveillance in its modern form really took off during the Cold War, when the Counterintelligence Program, shortened to COINTELPRO, was developed…
.. to fight communism.
Yes, ostensibly to fight communist and other dictatorial regimes. But actually it was used explicitly to target such so-called “enemies of the state” as the Civil Rights Movements, environmentalists, feminists, antiwar groups. Basically the entire, what was called then, the new left. Martin Luther King was directly targeted by COINTELPRO. The FBI even tried to coerce him into committing suicide by blackmailing him with information collected via this program.
At one point, government realized that was too much.
Yes, the abuses were so bad, that then Senator Church created a committee to investigate. A law was passed in 1978 explicitly making a lot of the things that COINTELPRO did illegal. But those protections were quickly undermined and, executive order 12333 was signed by Ronald Reagan in 1981, to re-institute many practices that had been determined to be illegal just a few years prior. Executive actions to increase U.S. government surveillance have become all too common. For example, in his last week in office in January of 2017, President Obama passed an executive order that greatly expanded on Reagan’s executive order by increasing information sharing between the NSA and at least 16 different agencies. That is a historically unprecedented level.
You’re probably hearing a lot: “Well, I’m not doing anything illegal, so it doesn’t really matter to me if anyone reads my data.”
I hear that a lot. And that may be true. It may not be true. You may inadvertently do a whole bunch of illegal stuff. It’s always shocking to me how often people break copyright law and don’t realize it, for example. But even if you don’t consider yourself a possible target of an investigation, you might be affected by chaining.
Well, chaining is when the government investigates a target, but also the target’s friends, and the friends of those friends. Anyone with a LinkedIn account can see how many people they’re connected to through this chaining. Numbers escalate quickly: In one recent instance, for example, Congress was told that the Call Details Record Program under Section 215 issued 14 orders in 2018 only targeting 11 individuals – which sounds modest – yet they collected 434,238,543 call records (and that’s just one facet of a single program under one legal umbrella).
Who is especially in danger of becoming a target?
Documents have been released showing that members of Black Lives Matter are being targeted by contemporary surveillance programs. Immigrant rights groups and their lawyers are also being targeted by current programs. But nobody knows exactly what the processes are, the algorithms, or the metrics utilized to create, as just one example, the no-fly lists that are too often wrongfully targeting the wrong people. It is not known how people get on them. Or how to get off them. For my part, I’ve been taken for an extra search at airport many times – when I’ve inquired, I’ve been told it’s random – but it was happening every time I flew internationally for awhile. It is very Kafkaesque.
Also Kafkaesque in that it is hard to believe all this exists.
Yes. But that doesn’t make it untrue. Whether it’s drones over Baltimore collecting phone information, whether it was the entire PRISM program — the abuses that Snowden revealed had already been alleged for years by many of us who had put the pieces together. But we were publicly reprimanded for saying “crazy things” that ended up being entirely 100% correct. The government blatantly lies.
What is the role of corporations in this game?
They are an integral part of U.S. Government surveillance programs. The corporations collect and surveil all of this information from us, and then hand it over to the government. Some of it is coerced, a lot of it is incentivized. Government and private industry are in bed together, and it’s a new thing in American society. The USA Freedom Act 2015 gave retroactive immunity to private companies that illegally shared their customer’s data, and the government paid them to do that sharing. In other words, the U.S. government offers a revenue stream plus liability protection if you give them information, even if you give them information illegally.
What do you say to those who say we need that level of data sharing for preventative surveillance. It’s the price we need to pay.
We absolutely do need preventative surveillance. I’m for it. But it’s simply unconstitutional and illegal to operationalize it in the ways that we have. The function of surveillance is to protect a participatory democracy, the rule of law, and constitutional rights. You can’t abrogate that in pursuit of protecting it. What we are currently doing is undermining the U.S. Constitution while claiming to protect everything it stands for.
There is the Foreign Intelligence Surveillance Court. It is a secret court here in the United States that issues secret rulings about interpretation of law, but also issues secret rulings around warrants pertaining to these surveillance programs. So a U.S. government agency will go to the FISC with secret evidence to say, “I want to surveil X, or their friends, or X’s community,” and the FISC will secretly rule whether or not the government is allowed to do that. And the defendants never get their day in court, which seems on the face of it to be illegal. The way it was justified at the time was this is under foreign intelligence surveillance, against non-US citizens abroad. The way it’s operationalized today, it’s directly and explicitly targeting not just Americans abroad and U.S. residents with foreign passports, but local American citizens. That’s a terrible precedent.
When will the pendulum swing, and we wake up and say: we need to stop this?
I think eventually the courts rule these practices to be blatantly unconstitutional. But it will take time. Look how long it took for the Supreme Court to do something over Civil Rights – that all Jim Crow laws, were similarly illegal. It will take a good while before the Supreme Court realizes that all of these programs are illegally transgressing on our fundamental liberties. It doesn’t matter what they are for. If you’re infringing on the Constitution, they’re all unconstitutional. and it doesn’t matter how you attempt to operationalize this. It’s all illegal.
What do you do to accelerate this?
We work with like-minded organizations from across the political spectrum to educate key decision-makers about how these programs are being used and why they’re so highly problematic. We also monitor and document government actions and corporate privacy infringements, and we fight to protect Civil Liberties and human rights through the courts. Unfortunately, all too often, once an illegal activity comes to light, Congress has passed laws granting retroactive immunity to the agencies and companies engaging in these illegal activities, and then you need to fight a new battle all over again. We need a mindset shift. We need to work together towards a renewed, 21st Century, social contract – a fresh understanding about what is right and what is wrong in the digital era. We need to update our understanding of fundamental freedoms and liberties throughout civil society.
And do you see signs of that mindset shift happening?
On the individual level, I believe citizens are starting to feel that machines can become annoying, and perhaps threatening, and too often cost a little bit of time and money here and there. The robo-calls that keep on coming in, the annoyance of never being able to get through to a human when you have a problem with some service or your bank, the ads you get congratulating you on your pregnancy when you have miscarried. This realization that our privacy has been systematically eliminated is starting to trickle through.
And at a government level?
There’s an interesting realignment happening when it comes to civil liberties and privacy protection: it is bringing together the progressive-left arm of the democratic party and the conservative-libertarian arm of the republican party. Both of them fight the leadership of both parties. In my view, party doesn’t matter. What matters is: are you on the right or the wrong side of protecting civil liberties, and frankly, on the right or wrong side of protecting First, Fourth, and Fifth Amendment Constitutional rights? For example, when people curtail what they’re doing online for fear of surveillance, that is a direct and explicit violation of freedom of speech. And I have it on good authority that unfortunately, that is happening all the time.
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