Entries Tagged "power"

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Police Disabling Their Own Voice Recorders

This is not a surprise:

The Los Angeles Police Commission is investigating how half of the recording antennas in the Southeast Division went missing, seemingly as a way to evade new self-monitoring procedures that the Los Angeles Police Department imposed last year.

The antennas, which are mounted onto individual patrol cars, receive recorded audio captured from an officer’s belt-worn transmitter. The transmitter is designed to capture an officer’s voice and transmit the recording to the car itself for storage. The voice recorders are part of a video camera system that is mounted in a front-facing camera on the patrol car. Both elements are activated any time the car’s emergency lights and sirens are turned on, but they can also be activated manually.

According to the Los Angeles Times, an LAPD investigation determined that around half of the 80 patrol cars in one South LA division were missing antennas as of last summer, and an additional 10 antennas were unaccounted for.

Surveillance of power is one of the most important ways to ensure that power does not abuse its status. But, of course, power does not like to be watched.

Posted on April 11, 2014 at 6:41 AM • View Comments

New Book on Data and Power

I’m writing a new book, with the tentative title of Data and Power.

While it’s obvious that the proliferation of data affects power, it’s less clear how it does so. Corporations are collecting vast dossiers on our activities on- and off-line—initially to personalize marketing efforts, but increasingly to control their customer relationships. Governments are using surveillance, censorship, and propaganda—both to protect us from harm and to protect their own power. Distributed groups—socially motivated hackers, political dissidents, criminals, communities of interest—are using the Internet to both organize and effect change. And we as individuals are becoming both more powerful and less powerful. We can’t evade surveillance, but we can post videos of police atrocities online, bypassing censors and informing the world. How long we’ll still have those capabilities is unclear.

Understanding these trends involves understanding data. Data is generated by all computing processes. Most of it used to be thrown away, but declines in the prices of both storage and processing mean that more and more of it is now saved and used. Who saves the data, and how they use it, is a matter of extreme consequence, and will continue to be for the coming decades.

Data and Power examines these trends and more. The book looks at the proliferation and accessibility of data, and how it has enabled constant surveillance of our entire society. It examines how governments and corporations use that surveillance data, as well as how they control data for censorship and propaganda. The book then explores how data has empowered individuals and less-traditional power blocs, and how the interplay among all of these types of power will evolve in the future. It discusses technical controls on power, and the limitations of those controls. And finally, the book describes solutions to balance power in the future—both general principles for society as a whole, and specific near-term changes in technology, business, laws, and social norms.

There’s a fundamental trade-off we need to make as society. Our data is enormously valuable in aggregate, yet it’s incredibly personal. The powerful will continue to demand aggregate data, yet we have to protect its intimate details. Balancing those two conflicting values is difficult, whether it’s medical data, location data, Internet search data, or telephone metadata. But balancing them is what society needs to do, and is almost certainly the fundamental issue of the Information Age.

As I said, Data and Power is just a tentative title. Suggestions for a better one—either a title or a subtitle—are appreciated. Here are some ideas to get you started:

  • Data and Power: The Political Science of Information Security
  • The Feudal Internet: How Data Affects Power and How Power Affects Data
  • Our Data Shadow: The Battles for Power in the Information Society
  • Data.Power: The Political Science of Information Security
  • Data and Power in the Information Age
  • Data and Goliath: The Balance of Power in the Information Age
  • The Power of Data: How the Information Society Upsets Power Balances

My plan is to finish the manuscript by the end of October, for publication in February 2015. Norton will be the publisher. I’ll post a table of contents in a couple of months. And, as with my previous books, I will be asking for volunteers to read and comment on a draft version.

If you notice I’m not posting as many blog entries, or writing as many essays, this is what I’m doing instead.

Posted on March 21, 2014 at 12:19 PM • View Comments

The Politics of Fear

This is very good:

…one might suppose that modern democratic states, with the lessons of history at hand, would seek to minimize fear ­ or at least minimize its effect on deliberative decision-making in both foreign and domestic policy.

But today the opposite is frequently true. Even democracies founded in the principles of liberty and the common good often take the path of more authoritarian states. They don’t work to minimize fear, but use it to exert control over the populace and serve the government’s principle aim: consolidating power.

[…]

However, since 9/11 leaders of both political parties in the United States have sought to consolidate power by leaning not just on the danger of a terrorist attack, but on the fact that the possible perpetrators are frightening individuals who are not like us. As President George W. Bush put it before a joint session of Congress in 2001: “They hate our freedoms: our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.” Last year President Obama brought the enemy closer to home, arguing in a speech at the National Defense University that “we face a real threat from radicalized individuals here in the United States“—radicalized individuals who were “deranged or alienated individuals ­- often U.S. citizens or legal residents.”

The Bush fear-peddling is usually considered the more extreme, but is it? The Obama formulation puts the “radicalized individuals” in our midst. They could be American citizens or legal residents. And the subtext is that if we want to catch them we need to start looking within. The other is among us. The pretext for the surveillance state is thus established.

Posted on January 29, 2014 at 6:24 AM • View Comments

The Battle for Power on the Internet

We’re in the middle of an epic battle for power in cyberspace. On one side are the traditional, organized, institutional powers such as governments and large multinational corporations. On the other are the distributed and nimble: grassroots movements, dissident groups, hackers, and criminals. Initially, the Internet empowered the second side. It gave them a place to coordinate and communicate efficiently, and made them seem unbeatable. But now, the more traditional institutional powers are winning, and winning big. How these two sides fare in the long term, and the fate of the rest of us who don’t fall into either group, is an open question—and one vitally important to the future of the Internet.

In the Internet’s early days, there was a lot of talk about its “natural laws”—how it would upend traditional power blocks, empower the masses, and spread freedom throughout the world. The international nature of the Internet circumvented national laws. Anonymity was easy. Censorship was impossible. Police were clueless about cybercrime. And bigger changes seemed inevitable. Digital cash would undermine national sovereignty. Citizen journalism would topple traditional media, corporate PR, and political parties. Easy digital copying would destroy the traditional movie and music industries. Web marketing would allow even the smallest companies to compete against corporate giants. It really would be a new world order.

This was a utopian vision, but some of it did come to pass. Internet marketing has transformed commerce. The entertainment industries have been transformed by things like MySpace and YouTube, and are now more open to outsiders. Mass media has changed dramatically, and some of the most influential people in the media have come from the blogging world. There are new ways to organize politically and run elections. Crowdfunding has made tens of thousands of projects possible to finance, and crowdsourcing made more types of projects possible. Facebook and Twitter really did help topple governments.

But that is just one side of the Internet’s disruptive character. The Internet has emboldened traditional power as well.

On the corporate side, power is consolidating, a result of two current trends in computing. First, the rise of cloud computing means that we no longer have control of our data. Our e-mail, photos, calendars, address books, messages, and documents are on servers belonging to Google, Apple, Microsoft, Facebook, and so on. And second, we are increasingly accessing our data using devices that we have much less control over: iPhones, iPads, Android phones, Kindles, ChromeBooks, and so on. Unlike traditional operating systems, those devices are controlled much more tightly by the vendors, who limit what software can run, what they can do, how they’re updated, and so on. Even Windows 8 and Apple’s Mountain Lion operating system are heading in the direction of more vendor control.

I have previously characterized this model of computing as “feudal.” Users pledge their allegiance to more powerful companies who, in turn, promise to protect them from both sysadmin duties and security threats. It’s a metaphor that’s rich in history and in fiction, and a model that’s increasingly permeating computing today.

Medieval feudalism was a hierarchical political system, with obligations in both directions. Lords offered protection, and vassals offered service. The lord-peasant relationship was similar, with a much greater power differential. It was a response to a dangerous world.

Feudal security consolidates power in the hands of the few. Internet companies, like lords before them, act in their own self-interest. They use their relationship with us to increase their profits, sometimes at our expense. They act arbitrarily. They make mistakes. They’re deliberately—and incidentally—changing social norms. Medieval feudalism gave the lords vast powers over the landless peasants; we’re seeing the same thing on the Internet.

It’s not all bad, of course. We, especially those of us who are not technical, like the convenience, redundancy, portability, automation, and shareability of vendor-managed devices. We like cloud backup. We like automatic updates. We like not having to deal with security ourselves. We like that Facebook just works—from any device, anywhere.

Government power is also increasing on the Internet. There is more government surveillance than ever before. There is more government censorship than ever before. There is more government propaganda, and an increasing number of governments are controlling what their users can and cannot do on the Internet. Totalitarian governments are embracing a growing “cyber sovereignty” movement to further consolidate their power. And the cyberwar arms race is on, pumping an enormous amount of money into cyber-weapons and consolidated cyber-defenses, further increasing government power.

In many cases, the interests of corporate and government powers are aligning. Both corporations and governments benefit from ubiquitous surveillance, and the NSA is using Google, Facebook, Verizon, and others to get access to data it couldn’t otherwise. The entertainment industry is looking to governments to enforce its antiquated business models. Commercial security equipment from companies like BlueCoat and Sophos is being used by oppressive governments to surveil and censor their citizens. The same facial recognition technology that Disney uses in its theme parks can also identify protesters in China and Occupy Wall Street activists in New York. Think of it as a public/private surveillance partnership.

What happened? How, in those early Internet years, did we get the future so wrong?

The truth is that technology magnifies power in general, but rates of adoption are different. The unorganized, the distributed, the marginal, the dissidents, the powerless, the criminal: they can make use of new technologies very quickly. And when those groups discovered the Internet, suddenly they had power. But later, when the already-powerful big institutions finally figured out how to harness the Internet, they had more power to magnify. That’s the difference: the distributed were more nimble and were faster to make use of their new power, while the institutional were slower but were able to use their power more effectively.

So while the Syrian dissidents used Facebook to organize, the Syrian government used Facebook to identify dissidents to arrest.

All isn’t lost for distributed power, though. For institutional power, the Internet is a change in degree, but for distributed power, it’s a qualitative one. The Internet gives decentralized groups—for the first time—the ability to coordinate. This can have incredible ramifications, as we saw in the SOPA/PIPA debate, Gezi, Brazil, and the rising use of crowdfunding. It can invert power dynamics, even in the presence of surveillance, censorship, and use control. But aside from political coordination, the Internet allows for social coordination as well—to unite, for example, ethnic diasporas, gender minorities, sufferers of rare diseases, and people with obscure interests.

This isn’t static: Technological advances continue to provide advantage to the nimble. I discussed this trend in my book Liars and Outliers. If you think of security as an arms race between attackers and defenders, any technological advance gives one side or the other a temporary advantage. But most of the time, a new technology benefits the nimble first. They are not hindered by bureaucracy—and sometimes not by laws or ethics, either. They can evolve faster.

We saw it with the Internet. As soon as the Internet started being used for commerce, a new breed of cybercriminal emerged, immediately able to take advantage of the new technology. It took police a decade to catch up. And we saw it on social media, as political dissidents made use of its organizational powers before totalitarian regimes did.

This delay is what I call a “security gap.” It’s greater when there’s more technology, and in times of rapid technological change. Basically, if there are more innovations to exploit, there will be more damage resulting from society’s inability to keep up with exploiters of all of them. And since our world is one in which there’s more technology than ever before, and a faster rate of technological change than ever before, we should expect to see a greater security gap than ever before. In other words, there will be an increasing time period during which nimble distributed powers can make use of new technologies before slow institutional powers can make better use of those technologies.

This is the battle: quick vs. strong. To return to medieval metaphors, you can think of a nimble distributed power—whether marginal, dissident, or criminal—as Robin Hood; and ponderous institutional powers—both government and corporate—as the feudal lords.

So who wins? Which type of power dominates in the coming decades?

Right now, it looks like traditional power. Ubiquitous surveillance means that it’s easier for the government to identify dissidents than it is for the dissidents to remain anonymous. Data monitoring means easier for the Great Firewall of China to block data than it is for people to circumvent it. The way we all use the Internet makes it much easier for the NSA to spy on everyone than it is for anyone to maintain privacy. And even though it is easy to circumvent digital copy protection, most users still can’t do it.

The problem is that leveraging Internet power requires technical expertise. Those with sufficient ability will be able to stay ahead of institutional powers. Whether it’s setting up your own e-mail server, effectively using encryption and anonymity tools, or breaking copy protection, there will always be technologies that can evade institutional powers. This is why cybercrime is still pervasive, even as police savvy increases; why technically capable whistleblowers can do so much damage; and why organizations like Anonymous are still a viable social and political force. Assuming technology continues to advance—and there’s no reason to believe it won’t—there will always be a security gap in which technically advanced Robin Hoods can operate.

Most people, though, are stuck in the middle. These are people who don’t have the technical ability to evade large governments and corporations, avoid the criminal and hacker groups who prey on us, or join any resistance or dissident movements. These are the people who accept default configuration options, arbitrary terms of service, NSA-installed back doors, and the occasional complete loss of their data. These are the people who get increasingly isolated as government and corporate power align. In the feudal world, these are the hapless peasants. And it’s even worse when the feudal lords—or any powers—fight each other. As anyone watching Game of Thrones knows, peasants get trampled when powers fight: when Facebook, Google, Apple, and Amazon fight it out in the market; when the US, EU, China, and Russia fight it out in geopolitics; or when it’s the US vs. “the terrorists” or China vs. its dissidents.

The abuse will only get worse as technology continues to advance. In the battle between institutional power and distributed power, more technology means more damage. We’ve already seen this: Cybercriminals can rob more people more quickly than criminals who have to physically visit everyone they rob. Digital pirates can make more copies of more things much more quickly than their analog forebears. And we’ll see it in the future: 3D printers mean that the computer restriction debate will soon involves guns, not movies. Big data will mean that more companies will be able to identify and track you more easily. It’s the same problem as the “weapons of mass destruction” fear: terrorists with nuclear or biological weapons can do a lot more damage than terrorists with conventional explosives. And by the same token, terrorists with large-scale cyberweapons can potentially do more damage than terrorists with those same bombs.

It’s a numbers game. Very broadly, because of the way humans behave as a species and as a society, every society is going to have a certain amount of crime. And there’s a particular crime rate society is willing to tolerate. With historically inefficient criminals, we were willing to live with some percentage of criminals in our society. As technology makes each individual criminal more powerful, the percentage we can tolerate decreases. Again, remember the “weapons of mass destruction” debate: As the amount of damage each individual terrorist can do increases, we need to do increasingly more to prevent even a single terrorist from succeeding.

The more destabilizing the technologies, the greater the rhetoric of fear, and the stronger institutional powers will get. This means increasingly repressive security measures, even if the security gap means that such measures become increasingly ineffective. And it will squeeze the peasants in the middle even more.

Without the protection of his own feudal lord, the peasant was subject to abuse both by criminals and other feudal lords. But both corporations and the government—and often the two in cahoots—are using their power to their own advantage, trampling on our rights in the process. And without the technical savvy to become Robin Hoods ourselves, we have no recourse but to submit to whatever the ruling institutional power wants.

So what happens as technology increases? Is a police state the only effective way to control distributed power and keep our society safe? Or do the fringe elements inevitably destroy society as technology increases their power? Probably neither doomsday scenario will come to pass, but figuring out a stable middle ground is hard. These questions are complicated, and dependent on future technological advances that we cannot predict. But they are primarily political questions, and any solutions will be political.

In the short term, we need more transparency and oversight. The more we know of what institutional powers are doing, the more we can trust that they are not abusing their authority. We have long known this to be true in government, but we have increasingly ignored it in our fear of terrorism and other modern threats. This is also true for corporate power. Unfortunately, market dynamics will not necessarily force corporations to be transparent; we need laws to do that. The same is true for decentralized power; transparency is how we’ll differentiate political dissidents from criminal organizations.

Oversight is also critically important, and is another long-understood mechanism for checking power. This can be a combination of things: courts that act as third-party advocates for the rule of law rather than rubber-stamp organizations, legislatures that understand the technologies and how they affect power balances, and vibrant public-sector press and watchdog groups that analyze and debate the actions of those wielding power.

Transparency and oversight give us the confidence to trust institutional powers to fight the bad side of distributed power, while still allowing the good side to flourish. For if we’re going to entrust our security to institutional powers, we need to know they will act in our interests and not abuse that power. Otherwise, democracy fails.

In the longer term, we need to work to reduce power differences. The key to all of this is access to data. On the Internet, data is power. To the extent the powerless have access to it, they gain in power. To the extent that the already powerful have access to it, they further consolidate their power. As we look to reducing power imbalances, we have to look at data: data privacy for individuals, mandatory disclosure laws for corporations, and open government laws.

Medieval feudalism evolved into a more balanced relationship in which lords had responsibilities as well as rights. Today’s Internet feudalism is both ad-hoc and one-sided. Those in power have a lot of rights, but increasingly few responsibilities or limits. We need to rebalance this relationship. In medieval Europe, the rise of the centralized state and the rule of law provided the stability that feudalism lacked. The Magna Carta first forced responsibilities on governments and put humans on the long road toward government by the people and for the people. In addition to re-reigning in government power, we need similar restrictions on corporate power: a new Magna Carta focused on the institutions that abuse power in the 21st century.

Today’s Internet is a fortuitous accident: a combination of an initial lack of commercial interests, government benign neglect, military requirements for survivability and resilience, and computer engineers building open systems that worked simply and easily.

We’re at the beginning of some critical debates about the future of the Internet: the proper role of law enforcement, the character of ubiquitous surveillance, the collection and retention of our entire life’s history, how automatic algorithms should judge us, government control over the Internet, cyberwar rules of engagement, national sovereignty on the Internet, limitations on the power of corporations over our data, the ramifications of information consumerism, and so on.

Data is the pollution problem of the information age. All computer processes produce it. It stays around. How we deal with it—how we reuse and recycle it, who has access to it, how we dispose of it, and what laws regulate it—is central to how the information age functions. And I believe that just as we look back at the early decades of the industrial age and wonder how society could ignore pollution in their rush to build an industrial world, our grandchildren will look back at us during these early decades of the information age and judge us on how we dealt with the rebalancing of power resulting from all this new data.

This won’t be an easy period for us as we try to work these issues out. Historically, no shift in power has ever been easy. Corporations have turned our personal data into an enormous revenue generator, and they’re not going to back down. Neither will governments, who have harnessed that same data for their own purposes. But we have a duty to tackle this problem.

I can’t tell you what the result will be. These are all complicated issues, and require meaningful debate, international cooperation, and innovative solutions. We need to decide on the proper balance between institutional and decentralized power, and how to build tools that amplify what is good in each while suppressing the bad.

This essay previously appeared in the Atlantic.

EDITED TO ADD (11/5): This essay has been translated into Danish.

Posted on October 30, 2013 at 6:50 AM • View Comments

The Trajectories of Government and Corporate Surveillance

Historically, surveillance was difficult and expensive.

Over the decades, as technology advanced, surveillance became easier and easier. Today, we find ourselves in a world of ubiquitous surveillance, where everything is collected, saved, searched, correlated and analyzed.

But while technology allowed for an increase in both corporate and government surveillance, the private and public sectors took very different paths to get there. The former always collected information about everyone, but over time, collected more and more of it, while the latter always collected maximal information, but over time, collected it on more and more people.

Corporate surveillance has been on a path from minimal to maximal information. Corporations always collected information on everyone they could, but in the past they didn’t collect very much of it and only held it as long as necessary. When surveillance information was expensive to collect and store, companies made do with as little as possible.

Telephone companies collected long-distance calling information because they needed it for billing purposes. Credit cards collected only the information about their customers’ transactions that they needed for billing. Stores hardly ever collected information about their customers, maybe some personal preferences, or name-and-address for advertising purposes. Even Google, back in the beginning, collected far less information about its users than it does today.

As technology improved, corporations were able to collect more. As the cost of data storage became cheaper, they were able to save more data and for a longer time. And as big data analysis tools became more powerful, it became profitable to save more. Today, almost everything is being saved by someone—probably forever.

Examples are everywhere. Internet companies like Google, Facebook, Amazon and Apple collect everything we do online at their sites. Third-party cookies allow those companies, and others, to collect data on us wherever we are on the Internet. Store affinity cards allow merchants to track our purchases. CCTV and aerial surveillance combined with automatic face recognition allow companies to track our movements; so does your cell phone. The Internet will facilitate even more surveillance, by more corporations for more purposes.

On the government side, surveillance has been on a path from individually targeted to broadly collected. When surveillance was manual and expensive, it could only be justified in extreme cases. The warrant process limited police surveillance, and resource restraints and the risk of discovery limited national intelligence surveillance. Specific individuals were targeted for surveillance, and maximal information was collected on them alone.

As technology improved, the government was able to implement ever-broadening surveillance. The National Security Agency could surveil groups—the Soviet government, the Chinese diplomatic corps, etc.—not just individuals. Eventually, they could spy on entire communications trunks.

Now, instead of watching one person, the NSA can monitor “three hops” away from that person—an ever widening network of people not directly connected to the person under surveillance. Using sophisticated tools, the NSA can surveil broad swaths of the Internet and phone network.

Governments have always used their authority to piggyback on corporate surveillance. Why should they go through the trouble of developing their own surveillance programs when they could just ask corporations for the data? For example we just learned that the NSA collects e-mail, IM and social networking contact lists for millions of Internet users worldwide.

But as corporations started collecting more information on populations, governments started demanding that data. Through National Security Letters, the FBI can surveil huge groups of people without obtaining a warrant. Through secret agreements, the NSA can monitor the entire Internet and telephone networks.

This is a huge part of the public-private surveillance partnership.

The result of all this is we’re now living in a world where both corporations and governments have us all under pretty much constant surveillance.

Data is a byproduct of the information society. Every interaction we have with a computer creates a transaction record, and we interact with computers hundreds of times a day. Even if we don’t use a computer—buying something in person with cash, say—the merchant uses a computer, and the data flows into the same system. Everything we do leaves a data shadow, and that shadow is constantly under surveillance.

Data is also a byproduct of information society socialization, whether it be e-mail, instant messages or conversations on Facebook. Conversations that used to be ephemeral are now recorded, and we are all leaving digital footprints wherever we go.

Moore’s law has made computing cheaper. All of us have made computing ubiquitous. And because computing produces data, and that data equals surveillance, we have created a world of ubiquitous surveillance.

Now we need to figure out what to do about it. This is more than reining in the NSA or fining a corporation for the occasional data abuse. We need to decide whether our data is a shared societal resource, a part of us that is inherently ours by right, or a private good to be bought and sold.

Writing in the Guardian, Chris Huhn said that “information is power, and the necessary corollary is that privacy is freedom.” How this interplay between power and freedom play out in the information age is still to be determined.

This essay previously appeared on CNN.com.

EDITED TO ADD (11/14): Richard Stallman’s comments on the subject.

Posted on October 21, 2013 at 6:05 AM • View Comments

Paradoxes of Big Data

Interesting paper: “Three Paradoxes of Big Data,” by Neil M. Richards and Jonathan H. King, Stanford Law Review Online, 2013.

Abstract: Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decisionmaking can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has important uses today. But we would like to sound a cautionary note and pause to consider big data’s potential more critically. In particular, we want to highlight three paradoxes in the current rhetoric about big data to help move us toward a more complete understanding of the big data picture. First, while big data pervasively collects all manner of private information, the operations of big data itself are almost entirely shrouded in legal and commercial secrecy. We call this the Transparency Paradox. Second, though big data evangelists talk in terms of miraculous outcomes, this rhetoric ignores the fact that big data seeks to identify at the expense of individual and collective identity. We call this the Identity Paradox. And third, the rhetoric of big data is characterized by its power to transform society, but big data has power effects of its own, which privilege large government and corporate entities at the expense of ordinary individuals. We call this the Power Paradox. Recognizing the paradoxes of big data, which show its perils alongside its potential, will help us to better understand this revolution. It may also allow us to craft solutions to produce a revolution that will be as good as its evangelists predict.

EDITED TO ADD (10/11): Here’s an HTML version of the paper.

Posted on September 26, 2013 at 6:58 AM • View Comments

Reforming the NSA

Leaks from the whistleblower Edward Snowden have catapulted the NSA into newspaper headlines and demonstrated that it has become one of the most powerful government agencies in the country. From the secret court rulings that allow it to collect data on all Americans to its systematic subversion of the entire Internet as a surveillance platform, the NSA has amassed an enormous amount of power.

There are two basic schools of thought about how this came to pass. The first focuses on the agency’s power. Like J. Edgar Hoover, NSA Director Keith Alexander has become so powerful as to be above the law. He is able to get away with what he does because neither political party—and nowhere near enough individual lawmakers—dare cross him. Longtime NSA watcher James Bamford recently quoted a CIA official: “We jokingly referred to him as Emperor Alexander—with good cause, because whatever Keith wants, Keith gets.”

Possibly the best evidence for this position is how well Alexander has weathered the Snowden leaks. The NSA’s most intimate secrets are front-page headlines, week after week. Morale at the agency is in shambles. Revelation after revelation has demonstrated that Alexander has exceeded his authority, deceived Congress, and possibly broken the law. Tens of thousands of additional top-secret documents are still waiting to come. Alexander has admitted that he still doesn’t know what Snowden took with him and wouldn’t have known about the leak at all had Snowden not gone public. He has no idea who else might have stolen secrets before Snowden, or who such insiders might have provided them to. Alexander had no contingency plans in place to deal with this sort of security breach, and even now—four months after Snowden fled the country—still has no coherent response to all this.

For an organization that prides itself on secrecy and security, this is what failure looks like. It is a testament to Alexander’s power that he still has a job.

The second school of thought is that it’s the administration’s fault—not just the present one, but the most recent several. According to this theory, the NSA is simply doing its job. If there’s a problem with the NSA’s actions, it’s because the rules it’s operating under are bad. Like the military, the NSA is merely an instrument of national policy. Blaming the NSA for creating a surveillance state is comparable to blaming the US military for the conduct of the Iraq war. Alexander is performing the mission given to him as best he can, under the rules he has been given, with the sort of zeal you’d expect from someone promoted into that position. And the NSA’s power predated his directorship.

Former NSA Director Michael Hayden exemplifies this in a quote from late July: “Give me the box you will allow me to operate in. I’m going to play to the very edges of that box.”

This doesn’t necessarily mean the administration is deliberately giving the NSA too big a box. More likely, it’s simply that the laws aren’t keeping pace with technology. Every year, technology gives us possibilities that our laws simply don’t cover clearly. And whenever there’s a gray area, the NSA interprets whatever law there is to give them the most expansive authority. They simply run rings around the secret court that rules on these things. My guess is that while they have clearly broken the spirit of the law, it’ll be harder to demonstrate that they broke the letter of the law.

In football terms, the first school of thought says the NSA is out of bounds. The second says the field is too big. I believe that both perspectives have some truth to them, and that the real problem comes from their combination.

Regardless of how we got here, the NSA can’t reform itself. Change cannot come from within; it has to come from above. It’s the job of government: of Congress, of the courts, and of the president. These are the people who have the ability to investigate how things became so bad, rein in the rogue agency, and establish new systems of transparency, oversight, and accountability.

Any solution we devise will make the NSA less efficient at its eavesdropping job. That’s a trade-off we should be willing to make, just as we accept reduced police efficiency caused by requiring warrants for searches and warning suspects that they have the right to an attorney before answering police questions. We do this because we realize that a too-powerful police force is itself a danger, and we need to balance our need for public safety with our aversion of a police state.

The same reasoning needs to apply to the NSA. We want it to eavesdrop on our enemies, but it needs to do so in a way that doesn’t trample on the constitutional rights of Americans, or fundamentally jeopardize their privacy or security. This means that sometimes the NSA won’t get to eavesdrop, just as the protections we put in place to restrain police sometimes result in a criminal getting away. This is a trade-off we need to make willingly and openly, because overall we are safer that way.

Once we do this, there needs to be a cultural change within the NSA. Like at the FBI and CIA after past abuses, the NSA needs new leadership committed to changing its culture. And giving up power.

Our society can handle the occasional terrorist act; we’re resilient, and—if we decided to act that way—indomitable. But a government agency that is above the law… it’s hard to see how America and its freedoms can survive that.

This essay previously appeared on TheAtlantic.com, with the unfortunate title of “Zero Sum: Americans Must Sacrifice Some Security to Reform the NSA.” After I complained, they changed the title to “The NSA-Reform Paradox: Stop Domestic Spying, Get More Security.”

Posted on September 16, 2013 at 6:55 AM • View Comments

The Public/Private Surveillance Partnership

Imagine the government passed a law requiring all citizens to carry a tracking device. Such a law would immediately be found unconstitutional. Yet we all carry mobile phones.

If the National Security Agency required us to notify it whenever we made a new friend, the nation would rebel. Yet we notify Facebook. If the Federal Bureau of Investigation demanded copies of all our conversations and correspondence, it would be laughed at. Yet we provide copies of our e-mail to Google, Microsoft or whoever our mail host is; we provide copies of our text messages to Verizon, AT&T and Sprint; and we provide copies of other conversations to Twitter, Facebook, LinkedIn, or whatever other site is hosting them.

The primary business model of the Internet is built on mass surveillance, and our government’s intelligence-gathering agencies have become addicted to that data. Understanding how we got here is critical to understanding how we undo the damage.

Computers and networks inherently produce data, and our constant interactions with them allow corporations to collect an enormous amount of intensely personal data about us as we go about our daily lives. Sometimes we produce this data inadvertently simply by using our phones, credit cards, computers and other devices. Sometimes we give corporations this data directly on Google, Facebook, Apple Inc.’s iCloud and so on in exchange for whatever free or cheap service we receive from the Internet in return.

The NSA is also in the business of spying on everyone, and it has realized it’s far easier to collect all the data from these corporations rather than from us directly. In some cases, the NSA asks for this data nicely. In other cases, it makes use of subtle threats or overt pressure. If that doesn’t work, it uses tools like national security letters.

The result is a corporate-government surveillance partnership, one that allows both the government and corporations to get away with things they couldn’t otherwise.

There are two types of laws in the U.S., each designed to constrain a different type of power: constitutional law, which places limitations on government, and regulatory law, which constrains corporations. Historically, these two areas have largely remained separate, but today each group has learned how to use the other’s laws to bypass their own restrictions. The government uses corporations to get around its limits, and corporations use the government to get around their limits.

This partnership manifests itself in various ways. The government uses corporations to circumvent its prohibitions against eavesdropping domestically on its citizens. Corporations rely on the government to ensure that they have unfettered use of the data they collect.

Here’s an example: It would be reasonable for our government to debate the circumstances under which corporations can collect and use our data, and to provide for protections against misuse. But if the government is using that very data for its own surveillance purposes, it has an incentive to oppose any laws to limit data collection. And because corporations see no need to give consumers any choice in this matter—because it would only reduce their profits—the market isn’t going to protect consumers, either.

Our elected officials are often supported, endorsed and funded by these corporations as well, setting up an incestuous relationship between corporations, lawmakers and the intelligence community.

The losers are us, the people, who are left with no one to stand up for our interests. Our elected government, which is supposed to be responsible to us, is not. And corporations, which in a market economy are supposed to be responsive to our needs, are not. What we have now is death to privacy—and that’s very dangerous to democracy and liberty.

The simple answer is to blame consumers, who shouldn’t use mobile phones, credit cards, banks or the Internet if they don’t want to be tracked. But that argument deliberately ignores the reality of today’s world. Everything we do involves computers, even if we’re not using them directly. And by their nature, computers produce tracking data. We can’t go back to a world where we don’t use computers, the Internet or social networking. We have no choice but to share our personal information with these corporations, because that’s how our world works today.

Curbing the power of the corporate-private surveillance partnership requires limitations on both what corporations can do with the data we choose to give them and restrictions on how and when the government can demand access to that data. Because both of these changes go against the interests of corporations and the government, we have to demand them as citizens and voters. We can lobby our government to operate more transparently—disclosing the opinions of the Foreign Intelligence Surveillance Court would be a good start—and hold our lawmakers accountable when it doesn’t. But it’s not going to be easy. There are strong interests doing their best to ensure that the steady stream of data keeps flowing.

This essay originally appeared on Bloomberg.com.

Posted on August 5, 2013 at 6:02 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.