Jennifer Stisa Granick, the Director of Civil Liberties at Stanford Law School’s Center for Internet and Society, is an expert in computer crime and security, electronic surveillance, security vulnerability disclosure, encryption policy, and the Fourth Amendment. In the interview that follows, she discusses her forthcoming book, American Spies: Modern Surveillance, Why You Should Care, and What To Do About It (Cambridge University Press, 2017), which will be published on Friday, January 13.
You entered the profession in the 1990s working as a criminal defense attorney, and developed an expertise in Internet law and surveillance law—witnessing the evolution (and continued evolution) of law in the digital age. Can you give us an overview of how government surveillance of ordinary citizens is happening today? Most of us do not know that applications such as Skype are tools for government surveillance.
The most important thing is to understand that technology has totally changed what’s possible with surveillance. New technologies have profoundly transformed government capabilities to spy on people. More of what we do creates a centralized record, whether it is email or Skype calls or mapping apps on our phones. Governments can monitor the Internet, take advantage of data collection by private companies like social networks, or deploy their own advanced tools such as cameras and sophisticated software for license plate detection or facial recognition. These new technological capabilities raise serious questions about how to protect civil rights and political freedoms.
You note that prior to the public Internet, the government lacked the capacity for mass surveillance and the widespread abuse of it. As capacity has increased exponentially with technological advances, so has abuse of the information gathered and kept/stored by the government. And uncovering these surveillance activities is hard—much of what we know is the result of Edward Snowden’s revelations. What are the abuses? If we haven’t committed any crimes, why should we care that the government holds key information about us?
Some like to think that inappropriate surveillance ended with the death of notorious FBI Director J. Edgar Hoover. But that is not the case. Department of Homeland Security fusion centers have improperly targeted First Amendment protected activity, such as spying on Muslim-Americans and antiwar activists. The New York City Police Department (NYPD) is famous for having conducted a secret surveillance program monitoring American Muslims in New York City. The Obama Administration has broadly spied on journalists it suspected of having talked to government sources. People need to know that even if we are odd or unconventional we will not be isolated, judged, or imprisoned.
You say in your book that you are concerned about the toll surveillance can take on personal freedom and on democracy—that surveillance and democracy can’t co-exist and surveillance threatens our democracy. Why?
Privacy is key to the exercise of individual freedoms – to read, to think, to express oneself, to conduct intimate relationships, and to be let alone. Privacy is also key to political evolution. Without a zone of protection, those who seek to evolve the country’s laws and policies, to challenge the status quo, are at risk of imprisonment or blackmail by those in power, and those in power are at risk of blackmail or embezzlement by other powerful people. Americans natively understand this is true in despotic countries. But similar civil liberties attacks have happened here in the United States, and may become an even more serious challenge to our democracy in the future.
You call for a comprehensive public investigation into the government’s spying—both at home and abroad. How could that happen? What might the end result be?
In the U.S., the courts and Congress are in a good position to demand answers from the Executive Branch about what kind of surveillance we conduct–in both a public and, where necessary, a classified setting. They just need the motivation to do so in the form of either viable court cases challenging surveillance practices, or phone calls and demands from voters. Europe and other regions are also asking difficult questions, especially as part of negotiations about cross-border data transfers such as Privacy Shield, wondering why their citizens’ data is accessible to the U.S. Government for a range of purposes outside of national security. At the very least, I would expect additional legal safeguards to be put in place. In 2017, the warrantless wiretapping law that underlies the PRISM program Snowden revealed expires, and there is an opportunity to reform it. Advocates will be pushing to narrow the scope of that surveillance, and to ensure that information collected in the name of national security is not repurposed for run of the mill police investigations. More information could also drive the adoption of privacy enhancing technologies such as encryption.
Did Aaron Swartz in any way inspire this book?
The U.S. government prosecuted Aaron for speedy downloading of academic journal articles. Prosecutors knew who he was and were interested in him because of his political beliefs about open access to information as expressed in the Guerilla Open Access Manifesto. As a result of the pressure put on him from that prosecution, Aaron took his own life. This tragedy is a great example of political targeting and of how the breadth of criminal law can give the government a reason to investigate or even charge people for the most innocuous activities. Another person I thought a lot about while writing this book was Caspar Bowden. Caspar was a privacy advocate and formerly chief privacy adviser at Microsoft. For years he had been warning the public that the U.S. and U.K. intelligence agencies were gathering information from Internet companies without just cause or legal process. When Snowden revealed the PRISM program, the documents showed that Caspar was right. Caspar passed away last year and when writing this book I thought about him a lot.