Entries Tagged "privacy"

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Blowback from the NSA Surveillance

There’s one piece of blowback that isn’t being discussed—aside from the fact that Snowden has killed the chances of any liberal arts major getting a DoD job for at least a decade—and that’s how the massive NSA surveillance of the Internet affects the US’s role in Internet governance.

Ron Deibert makes this point:

But there are unintended consequences of the NSA scandal that will undermine U.S. foreign policy interests—in particular, the “Internet Freedom” agenda espoused by the U.S. State Department and its allies.

The revelations that have emerged will undoubtedly trigger a reaction abroad as policymakers and ordinary users realize the huge disadvantages of their dependence on U.S.-controlled networks in social media, cloud computing, and telecommunications, and of the formidable resources that are deployed by U.S. national security agencies to mine and monitor those networks.

Writing about the new Internet nationalism, I talked about the ITU meeting in Dubai last fall, and the attempt of some countries to wrest control of the Internet from the US. That movement just got a huge PR boost. Now, when countries like Russia and Iran say the US is simply too untrustworthy to manage the Internet, no one will be able to argue.

We can’t fight for Internet freedom around the world, then turn around and destroy it back home. Even if we don’t see the contradiction, the rest of the world does.

Posted on June 17, 2013 at 6:13 AM • View Comments

Trading Privacy for Convenience

Ray Wang makes an important point about trust and our data:

This is the paradox. The companies contending to win our trust to manage our digital identities all seem to have complementary (or competing) business models that breach that trust by selling our data.

…and by turning it over to the government.

The current surveillance state is a result of a government/corporate partnership, and our willingness to give up privacy for convenience.

If the government demanded that we all carry tracking devices 24/7, we would rebel. Yet we all carry cell phones. If the government demanded that we deposit copies of all of our messages to each other with the police, we’d declare their actions unconstitutional. Yet we all use Gmail and Facebook messaging and SMS. If the government demanded that we give them access to all the photographs we take, and that we identify all of the people in them and tag them with locations, we’d refuse. Yet we do exactly that on Flickr and other sites.

Ray Ozzie is right when he said that we got what we asked for when we told the government we were scared and that they should do whatever they wanted to make us feel safer. But we also got what we asked for when we traded our privacy for convenience, trusting these corporations to look out for our best interests.

We’re living in a world of feudal security. And if you watch Game of Thrones, you know that feudalism benefits the powerful—at the expense of the peasants.

Last night, I was on All In with Chris Hayes (parts one and two). One of the things we talked about after the show was over is how technological solutions only work around the margins. That’s not a cause for despair. Think about technological solutions to murder. Yes, they exist—wearing a bullet-proof vest, for example—but they’re not really viable. The way we protect ourselves from murder is through laws. This is how we’re also going to protect our privacy.

EDITED TO ADD (6/18): The Onion nailed it back in 2011.

Posted on June 13, 2013 at 4:06 PM • View Comments

Essays Related to NSA Spying Documents

Here’s a quick list of some of my older writings that are related to the current NSA spying documents:

Much more here.

EDITED TO ADD (6/14): More essays by others: Claims that PRISM foiled a terrorist attack have been debunked. A collection of headlines. Interesting comments by someone who thinks Snowden is a well-intentioned fool. The Economist speculates on the political factors that would lead Obama to allow this.

Posted on June 13, 2013 at 6:09 AM • View Comments

Government Secrets and the Need for Whistle-blowers

Yesterday, we learned that the NSA received all calling records from Verizon customers for a three-month period starting in April. That’s everything except the voice content: who called who, where they were, how long the call lasted—for millions of people, both Americans and foreigners. This “metadata” allows the government to track the movements of everyone during that period, and build a detailed picture of who talks to whom. It’s exactly the same data the Justice Department collected about AP journalists.

The Guardian delivered this revelation after receiving a copy of a secret memo about this—presumably from a whistle-blower. We don’t know if the other phone companies handed data to the NSA too. We don’t know if this was a one-off demand or a continuously renewed demand; the order started a few days after the Boston bombers were captured by police.

We don’t know a lot about how the government spies on us, but we know some things. We know the FBI has issued tens of thousands of ultra-secret National Security Letters to collect all sorts of data on people—we believe on millions of people—and has been abusing them to spy on cloud-computer users. We know it can collect a wide array of personal data from the Internet without a warrant. We also know that the FBI has been intercepting cell-phone data, all but voice content, for the past 20 years without a warrant, and can use the microphone on some powered-off cell phones as a room bug—presumably only with a warrant.

We know that the NSA has many domestic-surveillance and data-mining programs with codenames like Trailblazer, Stellar Wind, and Ragtime—deliberately using different codenames for similar programs to stymie oversight and conceal what’s really going on. We know that the NSA is building an enormous computer facility in Utah to store all this data, as well as faster computer networks to process it all. We know the U.S. Cyber Command employs 4,000 people.

We know that the DHS is also collecting a massive amount of data on people, and that local police departments are running “fusion centers” to collect and analyze this data, and covering up its failures. This is all part of the militarization of the police.

Remember in 2003, when Congress defunded the decidedly creepy Total Information Awareness program? It didn’t die; it just changed names and split into many smaller programs. We know that corporations are doing an enormous amount of spying on behalf of the government: all parts.

We know all of this not because the government is honest and forthcoming, but mostly through three backchannels—inadvertent hints or outright admissions by government officials in hearings and court cases, information gleaned from government documents received under FOIA, and government whistle-blowers.

There’s much more we don’t know, and often what we know is obsolete. We know quite a bit about the NSA’s ECHELON program from a 2000 European investigation, and about the DHS’s plans for Total Information Awareness from 2002, but much less about how these programs have evolved. We can make inferences about the NSA’s Utah facility based on the theoretical amount of data from various sources, the cost of computation, and the power requirements from the facility, but those are rough guesses at best. For a lot of this, we’re completely in the dark.

And that’s wrong.

The U.S. government is on a secrecy binge. It overclassifies more information than ever. And we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.

Knowing how the government spies on us is important. Not only because so much of it is illegal—or, to be as charitable as possible, based on novel interpretations of the law—but because we have a right to know. Democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that. That means knowing what our government is doing to us, in our name. That means knowing that the government is operating within the constraints of the law. Otherwise, we’re living in a police state.

We need whistle-blowers.

Leaking information without getting caught is difficult. It’s almost impossible to maintain privacy in the Internet Age. The WikiLeaks platform seems to have been secure—Bradley Manning was caught not because of a technological flaw, but because someone he trusted betrayed him—but the U.S. government seems to have successfully destroyed it as a platform. None of the spin-offs have risen to become viable yet. The New Yorker recently unveiled its Strongbox platform for leaking material, which is still new but looks good. This link contains the best advice on how to leak information to the press via phone, email, or the post office. The National Whistleblowers Center has a page on national-security whistle-blowers and their rights.

Leaking information is also very dangerous. The Obama Administration has embarked on a war on whistle-blowers, pursuing them—both legally and through intimidation—further than any previous administration has done. Mark Klein, Thomas Drake, and William Binney have all been persecuted for exposing technical details of our surveillance state. Bradley Manning has been treated cruelly and inhumanly—and possibly tortured—for his more-indiscriminate leaking of State Department secrets.

The Obama Administration’s actions against the Associated Press, its persecution of Julian Assange, and its unprecedented prosecution of Manning on charges of “aiding the enemy” demonstrate how far it’s willing to go to intimidate whistle-blowers—as well as the journalists who talk to them.

But whistle-blowing is vital, even more broadly than in government spying. It’s necessary for good government, and to protect us from abuse of power.

We need details on the full extent of the FBI’s spying capabilities. We don’t know what information it routinely collects on American citizens, what extra information it collects on those on various watch lists, and what legal justifications it invokes for its actions. We don’t know its plans for future data collection. We don’t know what scandals and illegal actions—either past or present—are currently being covered up.

We also need information about what data the NSA gathers, either domestically or internationally. We don’t know how much it collects surreptitiously, and how much it relies on arrangements with various companies. We don’t know how much it uses password cracking to get at encrypted data, and how much it exploits existing system vulnerabilities. We don’t know whether it deliberately inserts backdoors into systems it wants to monitor, either with or without the permission of the communications-system vendors.

And we need details about the sorts of analysis the organizations perform. We don’t know what they quickly cull at the point of collection, and what they store for later analysis—and how long they store it. We don’t know what sort of database profiling they do, how extensive their CCTV and surveillance-drone analysis is, how much they perform behavioral analysis, or how extensively they trace friends of people on their watch lists.

We don’t know how big the U.S. surveillance apparatus is today, either in terms of money and people or in terms of how many people are monitored or how much data is collected. Modern technology makes it possible to monitor vastly more people—yesterday’s NSA revelations demonstrate that they could easily surveil everyone—than could ever be done manually.

Whistle-blowing is the moral response to immoral activity by those in power. What’s important here are government programs and methods, not data about individuals. I understand I am asking for people to engage in illegal and dangerous behavior. Do it carefully and do it safely, but—and I am talking directly to you, person working on one of these secret and probably illegal programs—do it.

If you see something, say something. There are many people in the U.S. that will appreciate and admire you.

For the rest of us, we can help by protesting this war on whistle-blowers. We need to force our politicians not to punish them—to investigate the abuses and not the messengers—and to ensure that those unjustly persecuted can obtain redress.

Our government is putting its own self-interest ahead of the interests of the country. That needs to change.

This essay originally appeared on the Atlantic.

EDITED TO ADD (6/10): It’s not just phone records. Another secret program, PRISM, gave the NSA access to e-mails and private messages at Google, Facebook, Yahoo!, Skype, AOL, and others. And in a separate leak, we now know about the Boundless Informant NSA data mining system.

The leaker for at least some of this is Edward Snowden. I consider him an American hero.

EFF has a great timeline of NSA spying. And this and this contain some excellent speculation about what PRISM could be.

Someone needs to write an essay parsing all of the precisely worded denials. Apple has never heard the word “PRISM,” but could have known of the program under a different name. Google maintained that there is no government “back door,” but left open the possibility that the data could have been just handed over. Obama said that the government isn’t “listening to your telephone calls,” ignoring 1) the meta-data, 2) the fact that computers could be doing all of the listening, and 3) that text-to-speech results in phone calls being read and not listened to. And so on and on and on.

Here are people defending the programs. And here’s someone criticizing my essay.

Four more good essays.

I’m sure there are lots more things out there that should be read. Please include the links in comments. Not only essays I would agree with; intelligent opinions from the other sides are just as important.

EDITED TO ADD (6/10): Two essays discussing the policy issues.

My original essay is being discussed on Reddit.

EDITED TO ADD (6/11): Three more good articles: “The Irrationality of Giving Up This Much Liberty to Fight Terror,” “If the NSA Trusted Edward Snowden with Our Data, Why Should We Trust the NSA?” and “Using Metadata to Find Paul Revere.”

EDITED TO ADD (6/11): NSA surveillance reimagined as children’s books.

EDITED TO ADD (7/1): This essay has been translated into Russian and French.

EDITED TO ADD (10/2): This essay has also been translated into Finnish.

Posted on June 10, 2013 at 6:12 AM • View Comments

The Problems with CALEA-II

The FBI wants a new law that will make it easier to wiretap the Internet. Although its claim is that the new law will only maintain the status quo, it’s really much worse than that. This law will result in less-secure Internet products and create a foreign industry in more-secure alternatives. It will impose costly burdens on affected companies. It will assist totalitarian governments in spying on their own citizens. And it won’t do much to hinder actual criminals and terrorists.

As the FBI sees it, the problem is that people are moving away from traditional communication systems like telephones onto computer systems like Skype. Eavesdropping on telephones used to be easy. The FBI would call the phone company, which would bring agents into a switching room and allow them to literally tap the wires with a pair of alligator clips and a tape recorder. In the 1990s, the government forced phone companies to provide an analogous capability on digital switches; but today, more and more communications happens over the Internet.

What the FBI wants is the ability to eavesdrop on everything. Depending on the system, this ranges from easy to impossible. E-mail systems like Gmail are easy. The mail resides in Google’s servers, and the company has an office full of people who respond to requests for lawful access to individual accounts from governments all over the world. Encrypted voice systems like Silent Circle are impossible to eavesdrop on—the calls are encrypted from one computer to the other, and there’s no central node to eavesdrop from. In those cases, the only way to make the system eavesdroppable is to add a backdoor to the user software. This is precisely the FBI’s proposal. Companies that refuse to comply would be fined $25,000 a day.

The FBI believes it can have it both ways: that it can open systems to its eavesdropping, but keep them secure from anyone else’s eavesdropping. That’s just not possible. It’s impossible to build a communications system that allows the FBI surreptitious access but doesn’t allow similar access by others. When it comes to security, we have two options: We can build our systems to be as secure as possible from eavesdropping, or we can deliberately weaken their security. We have to choose one or the other.

This is an old debate, and one we’ve been through many times. The NSA even has a name for it: the equities issue. In the 1980s, the equities debate was about export control of cryptography. The government deliberately weakened U.S. cryptography products because it didn’t want foreign groups to have access to secure systems. Two things resulted: fewer Internet products with cryptography, to the insecurity of everybody, and a vibrant foreign security industry based on the unofficial slogan “Don’t buy the U.S. stuff—it’s lousy.”

In 1993, the debate was about the Clipper Chip. This was another deliberately weakened security product, an encrypted telephone. The FBI convinced AT&T to add a backdoor that allowed for surreptitious wiretapping. The product was a complete failure. Again, why would anyone buy a deliberately weakened security system?

In 1994, the Communications Assistance for Law Enforcement Act mandated that U.S. companies build eavesdropping capabilities into phone switches. These were sold internationally; some countries liked having the ability to spy on their citizens. Of course, so did criminals, and there were public scandals in Greece (2005) and Italy (2006) as a result.

In 2012, we learned that every phone switch sold to the Department of Defense had security vulnerabilities in its surveillance system. And just this May, we learned that Chinese hackers breached Google’s system for providing surveillance data for the FBI.

The new FBI proposal will fail in all these ways and more. The bad guys will be able to get around the eavesdropping capability, either by building their own security systems—not very difficult—or buying the more-secure foreign products that will inevitably be made available. Most of the good guys, who don’t understand the risks or the technology, will not know enough to bother and will be less secure. The eavesdropping functions will 1) result in more obscure—and less secure—product designs, and 2) be vulnerable to exploitation by criminals, spies, and everyone else. U.S. companies will be forced to compete at a disadvantage; smart customers won’t buy the substandard stuff when there are more-secure foreign alternatives. Even worse, there are lots of foreign governments who want to use these sorts of systems to spy on their own citizens. Do we really want to be exporting surveillance technology to the likes of China, Syria, and Saudi Arabia?

The FBI’s short–sighted agenda also works against the parts of the government that are still working to secure the Internet for everyone. Initiatives within the NSA, the DOD, and DHS to do everything from securing computer operating systems to enabling anonymous web browsing will all be harmed by this.

What to do, then? The FBI claims that the Internet is “going dark,” and that it’s simply trying to maintain the status quo of being able to eavesdrop. This characterization is disingenuous at best. We are entering a golden age of surveillance; there’s more electronic communications available for eavesdropping than ever before, including whole new classes of information: location tracking, financial tracking, and vast databases of historical communications such as e-mails and text messages. The FBI’s surveillance department has it better than ever. With regard to voice communications, yes, software phone calls will be harder to eavesdrop upon. (Although there are questions about Skype’s security.) That’s just part of the evolution of technology, and one that on balance is a positive thing.

Think of it this way: We don’t hand the government copies of our house keys and safe combinations. If agents want access, they get a warrant and then pick the locks or bust open the doors, just as a criminal would do. A similar system would work on computers. The FBI, with its increasingly non-transparent procedures and systems, has failed to make the case that this isn’t good enough.

Finally there’s a general principle at work that’s worth explicitly stating. All tools can be used by the good guys and the bad guys. Cars have enormous societal value, even though bank robbers can use them as getaway cars. Cash is no different. Both good guys and bad guys send e-mails, use Skype, and eat at all-night restaurants. But because society consists overwhelmingly of good guys, the good uses of these dual-use technologies greatly outweigh the bad uses. Strong Internet security makes us all safer, even though it helps the bad guys as well. And it makes no sense to harm all of us in an attempt to harm a small subset of us.

This essay originally appeared in Foreign Policy.

Posted on June 4, 2013 at 12:44 PM • View Comments

The Problems with Managing Privacy by Asking and Giving Consent

New paper from the Harvard Law Review by Daniel Solove: “Privacy Self-Management and the Consent Dilemma“:

Privacy self-management takes refuge in consent. It attempts to be neutral about substance—whether certain forms of collecting, using, or disclosing personal data are good or bad—and instead focuses on whether people consent to various privacy practices. Consent legitimizes nearly any form of collection, use, or disclosure of personal data. Although privacy self-management is certainly a laudable and necessary component of any regulatory regime, I contend that it is being tasked with doing work beyond its capabilities. Privacy self-management does not provide people with meaningful control over their data. First, empirical and social science research demonstrates that there are severe cognitive problems that undermine privacy self-management. These cognitive problems impair individuals’ ability to make informed, rational choices about the costs and benefits of consenting to the collection, use, and disclosure of their personal data.

Second, and more troubling, even well-informed and rational individuals cannot appropriately self-manage their privacy due to several structural problems. There are too many entities collecting and using personal data to make it feasible for people to manage their privacy separately with each entity. Moreover, many privacy harms are the result of an aggregation of pieces of data over a period of time by different entities. It is virtually impossible for people to weigh the costs and benefits of revealing information or permitting its use or transfer without an understanding of the potential downstream uses, further limiting the effectiveness of the privacy self-management framework.

Posted on June 3, 2013 at 6:15 AM • View Comments

New Report on Teens, Social Media, and Privacy

Interesting report from the From the Pew Internet and American Life Project:

Teens are sharing more information about themselves on their social media profiles than they did when we last surveyed in 2006:

  • 91% post a photo of themselves, up from 79% in 2006.
  • 71% post their school name, up from 49%.
  • 71% post the city or town where they live, up from 61%.
  • 53% post their email address, up from 29%.
  • 20% post their cell phone number, up from 2%.

60% of teen Facebook users set their Facebook profiles to private (friends only), and most report high levels of confidence in their ability to manage their settings.

danah boyd points out something interesting in the data:

My favorite finding of Pew’s is that 58% of teens cloak their messages either through inside jokes or other obscure references, with more older teens (62%) engaging in this practice than younger teens (46%)….

While adults are often anxious about shared data that might be used by government agencies, advertisers, or evil older men, teens are much more attentive to those who hold immediate power over them—parents, teachers, college admissions officers, army recruiters, etc. To adults, services like Facebook that may seem “private” because you can use privacy tools, but they don’t feel that way to youth who feel like their privacy is invaded on a daily basis. (This, btw, is part of why teens feel like Twitter is more intimate than Facebook. And why you see data like Pew’s that show that teens on Facebook have, on average 300 friends while, on Twitter, they have 79 friends.) Most teens aren’t worried about strangers; they’re worried about getting in trouble.

Over the last few years, I’ve watched as teens have given up on controlling access to content. It’s too hard, too frustrating, and technology simply can’t fix the power issues. Instead, what they’ve been doing is focusing on controlling access to meaning. A comment might look like it means one thing, when in fact it means something quite different. By cloaking their accessible content, teens reclaim power over those who they know who are surveilling them. This practice is still only really emerging en masse, so I was delighted that Pew could put numbers to it. I should note that, as Instagram grows, I’m seeing more and more of this. A picture of a donut may not be about a donut. While adults worry about how teens’ demographic data might be used, teens are becoming much more savvy at finding ways to encode their content and achieve privacy in public.

Posted on May 24, 2013 at 8:40 AM • View Comments

Surveillance and the Internet of Things

The Internet has turned into a massive surveillance tool. We’re constantly monitored on the Internet by hundreds of companies—both familiar and unfamiliar. Everything we do there is recorded, collected, and collated—sometimes by corporations wanting to sell us stuff and sometimes by governments wanting to keep an eye on us.

Ephemeral conversation is over. Wholesale surveillance is the norm. Maintaining privacy from these powerful entities is basically impossible, and any illusion of privacy we maintain is based either on ignorance or on our unwillingness to accept what’s really going on.

It’s about to get worse, though. Companies such as Google may know more about your personal interests than your spouse, but so far it’s been limited by the fact that these companies only see computer data. And even though your computer habits are increasingly being linked to your offline behavior, it’s still only behavior that involves computers.

The Internet of Things refers to a world where much more than our computers and cell phones is Internet-enabled. Soon there will be Internet-connected modules on our cars and home appliances. Internet-enabled medical devices will collect real-time health data about us. There’ll be Internet-connected tags on our clothing. In its extreme, everything can be connected to the Internet. It’s really just a matter of time, as these self-powered wireless-enabled computers become smaller and cheaper.

Lots has been written about the “Internet of Things” and how it will change society for the better. It’s true that it will make a lot of wonderful things possible, but the “Internet of Things” will also allow for an even greater amount of surveillance than there is today. The Internet of Things gives the governments and corporations that follow our every move something they don’t yet have: eyes and ears.

Soon everything we do, both online and offline, will be recorded and stored forever. The only question remaining is who will have access to all of this information, and under what rules.

We’re seeing an initial glimmer of this from how location sensors on your mobile phone are being used to track you. Of course your cell provider needs to know where you are; it can’t route your phone calls to your phone otherwise. But most of us broadcast our location information to many other companies whose apps we’ve installed on our phone. Google Maps certainly, but also a surprising number of app vendors who collect that information. It can be used to determine where you live, where you work, and who you spend time with.

Another early adopter was Nike, whose Nike+ shoes communicate with your iPod or iPhone and track your exercising. More generally, medical devices are starting to be Internet-enabled, collecting and reporting a variety of health data. Wiring appliances to the Internet is one of the pillars of the smart electric grid. Yes, there are huge potential savings associated with the smart grid, but it will also allow power companies – and anyone they decide to sell the data to—to monitor how people move about their house and how they spend their time.

Drones are another “thing” moving onto the Internet. As their price continues to drop and their capabilities increase, they will become a very powerful surveillance tool. Their cameras are powerful enough to see faces clearly, and there are enough tagged photographs on the Internet to identify many of us. We’re not yet up to a real-time Google Earth equivalent, but it’s not more than a few years away. And drones are just a specific application of CCTV cameras, which have been monitoring us for years, and will increasingly be networked.

Google’s Internet-enabled glasses—Google Glass—are another major step down this path of surveillance. Their ability to record both audio and video will bring ubiquitous surveillance to the next level. Once they’re common, you might never know when you’re being recorded in both audio and video. You might as well assume that everything you do and say will be recorded and saved forever.

In the near term, at least, the sheer volume of data will limit the sorts of conclusions that can be drawn. The invasiveness of these technologies depends on asking the right questions. For example, if a private investigator is watching you in the physical world, she or he might observe odd behavior and investigate further based on that. Such serendipitous observations are harder to achieve when you’re filtering databases based on pre-programmed queries. In other words, it’s easier to ask questions about what you purchased and where you were than to ask what you did with your purchases and why you went where you did. These analytical limitations also mean that companies like Google and Facebook will benefit more from the Internet of Things than individuals—not only because they have access to more data, but also because they have more sophisticated query technology. And as technology continues to improve, the ability to automatically analyze this massive data stream will improve.

In the longer term, the Internet of Things means ubiquitous surveillance. If an object “knows” you have purchased it, and communicates via either Wi-Fi or the mobile network, then whoever or whatever it is communicating with will know where you are. Your car will know who is in it, who is driving, and what traffic laws that driver is following or ignoring. No need to show ID; your identity will already be known. Store clerks could know your name, address, and income level as soon as you walk through the door. Billboards will tailor ads to you, and record how you respond to them. Fast food restaurants will know what you usually order, and exactly how to entice you to order more. Lots of companies will know whom you spend your days—and nights—with. Facebook will know about any new relationship status before you bother to change it on your profile. And all of this information will all be saved, correlated, and studied. Even now, it feels a lot like science fiction.

Will you know any of this? Will your friends? It depends. Lots of these devices have, and will have, privacy settings. But these settings are remarkable not in how much privacy they afford, but in how much they deny. Access will likely be similar to your browsing habits, your files stored on Dropbox, your searches on Google, and your text messages from your phone. All of your data is saved by those companies—and many others—correlated, and then bought and sold without your knowledge or consent. You’d think that your privacy settings would keep random strangers from learning everything about you, but it only keeps random strangers who don’t pay for the privilege—or don’t work for the government and have the ability to demand the data. Power is what matters here: you’ll be able to keep the powerless from invading your privacy, but you’ll have no ability to prevent the powerful from doing it again and again.

This essay originally appeared on the Guardian.

EDITED TO ADD (6/14): Another article on the subject.

Posted on May 21, 2013 at 6:15 AM • View Comments

Transparency and Accountability

As part of the fallout of the Boston bombings, we’re probably going to get some new laws that give the FBI additional investigative powers. As with the Patriot Act after 9/11, the debate over whether these new laws are helpful will be minimal, but the effects on civil liberties could be large. Even though most people are skeptical about sacrificing personal freedoms for security, it’s hard for politicians to say no to the FBI right now, and it’s politically expedient to demand that something be done.

If our leaders can’t say no—and there’s no reason to believe they can—there are two concepts that need to be part of any new counterterrorism laws, and investigative laws in general: transparency and accountability.

Long ago, we realized that simply trusting people and government agencies to always do the right thing doesn’t work, so we need to check up on them. In a democracy, transparency and accountability are how we do that. It’s how we ensure that we get both effective and cost-effective government. It’s how we prevent those we trust from abusing that trust, and protect ourselves when they do. And it’s especially important when security is concerned.

First, we need to ensure that the stuff we’re paying money for actually works and has a measureable impact. Law-enforcement organizations regularly invest in technologies that don’t make us any safer. The TSA, for example, could devote an entire museum to expensive but ineffective systems: puffer machines, body scanners, FAST behavioral screening, and so on. Local police departments have been wasting lots of post-9/11 money on unnecessary high-tech weaponry and equipment. The occasional high-profile success aside, police surveillance cameras have been shown to be a largely ineffective police tool.

Sometimes honest mistakes led organizations to invest in these technologies. Sometimes there’s self-deception and mismanagement—and far too often lobbyists are involved. Given the enormous amount of security money post-9/11, you inevitably end up with an enormous amount of waste. Transparency and accountability are how we keep all of this in check.

Second, we need to ensure that law enforcement does what we expect it to do and nothing more. Police powers are invariably abused. Mission creep is inevitable, and it results in laws designed to combat one particular type of crime being used for an ever-widening array of crimes. Transparency is the only way we have of knowing when this is going on.

For example, that’s how we learned that the FBI is abusing National Security Letters. Traditionally, we use the warrant process to protect ourselves from police overreach. It’s not enough for the police to want to conduct a search; they also need to convince a neutral third party—a judge—that the search is in the public interest and will respect the rights of those searched. That’s accountability, and it’s the very mechanism that NSLs were exempted from.

When laws are broken, accountability is how we punish those who abused their power. It’s how, for example, we correct racial profiling by police departments. And it’s a lack of accountability that permits the FBI to get away with massive data collection until exposed by a whistleblower or noticed by a judge.

Third, transparency and accountability keep both law enforcement and politicians from lying to us. The Bush Administration lied about the extent of the NSA’s warrantless wiretapping program. The TSA lied about the ability of full-body scanners to save naked images of people. We’ve been lied to about the lethality of tasers, when and how the FBI eavesdrops on cell-phone calls, and about the existence of surveillance records. Without transparency, we would never know.

A decade ago, the FBI was heavily lobbying Congress for a law to give it new wiretapping powers: a law known as CALEA. One of its key justifications was that existing law didn’t allow it to perform speedy wiretaps during kidnapping investigations. It sounded plausible—and who wouldn’t feel sympathy for kidnapping victims?—but when civil-liberties organizations analyzed the actual data, they found that it was just a story; there were no instances of wiretapping in kidnapping investigations. Without transparency, we would never have known that the FBI was making up stories to scare Congress.

If we’re going to give the government any new powers, we need to ensure that there’s oversight. Sometimes this oversight is before action occurs. Warrants are a great example. Sometimes they’re after action occurs: public reporting, audits by inspector generals, open hearings, notice to those affected, or some other mechanism. Too often, law enforcement tries to exempt itself from this principle by supporting laws that are specifically excused from oversight…or by establishing secret courts that just rubber-stamp government wiretapping requests.

Furthermore, we need to ensure that mechanisms for accountability have teeth and are used.

As we respond to the threat of terrorism, we must remember that there are other threats as well. A society without transparency and accountability is the very definition of a police state. And while a police state might have a low crime rate—especially if you don’t define police corruption and other abuses of power as crime—and an even lower terrorism rate, it’s not a society that most of us would willingly choose to live in.

We already give law enforcement enormous power to intrude into our lives. We do this because we know they need this power to catch criminals, and we’re all safer thereby. But because we recognize that a powerful police force is itself a danger to society, we must temper this power with transparency and accountability.

This essay previously appeared on TheAtlantic.com.

Posted on May 14, 2013 at 5:48 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.