On Tuesday, Ben Wizner, an ACLU attorney best known for representing Edward Snowden, was a speaker at the UC Davis Law School’s speaker series on surveillance, talking about the Edward Snowden case – which emerged in 2013 and exposed the NSA (National Security Agency) on a range of issues, including the depths of their surveillance program.
Mr. Wizner discussed that case and how it relates to the broader issue of civil liberties and privacy rights. The subject was, “Democracy in an era of mass surveillance.” He argued that the issue of privacy “is too small and too inadequate a word for the kinds of concerns we should have when governments have the ability to record and store nearly complete records of our lives.” He said, “Privacy does not fully capture what’s at stake.”
Ben Wizner began his talk, not about Edward Snowden but rather about a group of activists in 1971 who broke into the FBI field office in Pennsylvania. They stole the files and mailed the copies to reporters, including the Washington Post, who published them over the objections of the FBI. These documents showed “that the FBI was engaged in widespread domestic surveillance targeting anti-war groups, black student organizations and other perceived dissidents.”
He pointed out that one of the documents said “that FBI agents should ‘enhance the paranoia among activists’ and ‘get the point across that there’s an FBI agent behind every mailbox.’”
Mr. Wizner also noted that the documents contained reference to COINTELPRO (Counter Intelligence Program), which he said marked the end of the Hoover era at the FBI. This was a sustained program starting in 1956 that attempted to disrupt activism.
He noted that many have pointed out the parallels between the burglary in 1971 and the acts of Edward Snowden. “In both cases a dramatic act of law breaking pulled back the curtain to reveal a world quite different from the one we thought we lived in – at the same time reinvigorated the rule of law and democratic oversight.”
The government in both cases defended their intrusions as “a necessary defense of the nation against wartime threats.”
Mr. Wizner made an interesting comparison between J. Edgar Hoover, who headed up the FBI from the age of 29 for 50 years until his death, and NSA Director Keith Alexander. While Mr. Hoover amassed great power and presidents feared him, Mr. Wizner noted that Mr. Alexander’s goal was “to collect it all, this was his mantra.”
Mr. Wizner said, “If Alexander could collect all of this information and show its utility, he would get the money that he needed from Congress and the law would be re-shaped or re-interpreted to accomplish his practices.”
Ben Wizner described Keith Alexander as the ultimate bureaucrat who created a headquarters that he called “the ultimate dominance center.” He read from a profile, “It had been designed by a Hollywood set designer to mimic the bridge of the Starship Enterprise from Star Trek.” He described that government leaders would take turns sitting in the “Captain’s Chair” as Mr. Alexander showed off his data tools on the big screen.
“J. Edgar Hoover’s threats to policymakers were crude, Alexander’s were subtle. Where Hoover’s method was blackmail, Alexander’s was political fear,” he explained.
Ben Wizner made it clear, Keith Alexander is not J. Edgar Hoover. However, he said, “What I intend to argue today is that modern technology has liberated the security state from those vulgar methods.”
He said in comparing 1971 to 2013, that “both produced what we might call constitutional moments.” They produced broad-based discussions about government practices and whether they “outgrew or outpaced constitutional constraints.” The Fourth Amendment, he argues, is in need of updating and the government was able to “drive a truck through a loophole.”
In the 1970s there were loopholes that government could maintain surveillance on foreign nationals even on US soil, and could do so without establishing evidence of an actual threat.
He calls the current loophole more “subtle,” however. He said, “It’s the doctrine that the collection of metadata has no constitutional significance even on a mass scale.” The government, he said, believes it “can seize and store whatever data it wants without having to satisfy any constitutional standard, so long as there are rules in place later to govern the review of that data by human beings.”
Mr. Wizner quoted Edward Snowden from a 2013 video, where Snowden described the NSA’s surveillance capabilities “as an architecture of oppression.” While he acknowledge “oppression” is a loaded word, he suggested we consider “an architecture of surveillance that surrounds us.”
Most of this was not developed by the NSA or any intelligence program, but “can easily be exploited by them.”
In the past, we could live our lives in obscurity with most of our actions “unobserved and unrecorded.” However, “we now of course live in a world of near universal tracking.”
He noted the smartphone, which he called a “tracker,” stating “it’s no surprise that this little guy is the battleground right between the state and the world’s most profitable corporation (referring to Apple).” The phone is one example, among many.
Not only can we track – and he presented numerous examples of tracking and the efforts to improve facial recognition software – but we can store. Ben Wizner noted that the cost of storing a gigabyte of information has gone from hundreds of thousands of dollars as recently as 1980 to a few pennies, most likely, today.
“What that means is it’s now technologically and financially feasible for governments to record virtually all of our movements, our communications and our associations and to store that information for later analysis,” he said. “Because surveillance used to be expensive and labor intensive, living this life of obscurity was the norm. Today it’s virtually impossible to opt out of tracking.”
This is what drives, he said, “securicrats like Keith Alexander” to push legal limits.
“I believe over time these abilities will represent as profound a threat to constitutional government as the crude abuses of the Hoover era,” he said.
Defenders of the government’s practice, he said, maintain that comparisons between Hoover’s policies and current capabilities are “grossly unfair and misleading.” He acknowledges this to some extent. There is a difference between passive collection systems and the meticulous record collection of past FBI agents.
There are rules and safeguards in place governing the use of this data. But, as he pointed out, “how confident are we that these rules and safeguards will survive a national trauma?”
He noted the over-the-top responses to recent terrorist attacks, where leaders “are tripping over each other to propose new surveillance authorities and impose states of emergency.” Mr. Wizner said they are doing this despite the fact that “most of the attackers were already well-known to multiple intelligence agencies.”
He posed, “How robust will the rules that limit access be in the face of another major terrorist attack HERE, especially when it will be shown conclusively that the evidence that will have foiled the plot was in the government’s databases but off limits to its investigators?”
“If we are going to connect all of the dots, they’re going to connect in hindsight,” he said. This is what Edward Snowden was worrying about when he talked about “turnkey tyranny.”
He argued, while this is not going to be easily given up, “history tells us that the lockbox that safeguards all of this private information will be unlocked.”
Ben Wizner also later pointed out that we have acted as though the threat of terror is in some way unprecedented, as though a small band of extranational terrorists were a greater threat than the threat of Nazism during World War II or the Soviets during the Cold War, and he argued that is simply not the case.
He said, “The question the Constitution asks is not whether the government has the proper internal safeguards on who can obtain access to a database.” As Chief Justice John Roberts writes, “The Founders did not fight a revolution to gain the right to government agency protocols.”
Mr. Wizner argues that the people who wrote the Bill of Rights “would have been appalled by a political discourse that subordinated hard-won rights to talismanic invocations of national security – a term they would not even have recognized.”
He argued that the founders would have argued that “the Constitution is supposed to make the government less efficient not more.” He read from the Fourth through Eighth amendments and said, “The only way you can read these words written over 200 years ago is that they are more fearful of a government with too much power than they were about a bad guy who might get away.”
The frustrating part of the debate, Ben Wizner said, is to try to set the dial to maximize both the value of security on the one hand and liberty on the other. “But that ignores that the framers of the Constitution already put their thumbs on the scale,” he said.
He argued that “there is a reason why in the Fourth Amendment, suspicion of wrongdoing comes before search. It’s not only because of the presumption of innocence that we should generally be careful, it’s because of the danger that a government with enough data about any of us can find some basis for being suspicious.”
—David M. Greenwald reporting