The Boundary Layer Between Law and Technology in the Connected Society

by Zapproved LLC

[guest author: Glenn Greenwald, American Journalist]

*The text below is a heavily edited summary of Mr. Greenwald’s keynote remarks at PREX17, the premier conference for in-house e-discovery professionals. His positions and views are his own, and not necessarily reflective of views held by PREX or the sponsor organizations.

If someone said to me, “You have to choose one phrase to describe the last couple of decades of world history, what would it be?” I would have very little trouble answering that question. I would describe the last couple of decades as being the era of ‘the internet,’ because I think there hasn’t been any technology in a long time that has transformed every component of our social, political and cultural life quite like this innovation has.

There’s an interesting dynamic when a new technology emerges. As human beings our instinct is to get excited about the technology, to think about how it can make our lives better and more interesting. What we think much less about are the implications of this new technology. How might it change our lives in ways that we don’t necessarily consider desirable? What controls are necessary in order to prevent those harms from happening?

For instance, we have a handful of extraordinarily powerful new companies that have amassed more wealth and power and data about all of us than was previously even imaginable. I’m talking, of course, about Facebook and Google and Apple and a handful of others, a kind of merger of financial, political and surveillance power that has never existed before. In recent months people started speculating, in a pretty intensive way, about the possibility that the CEO of Facebook, Mark Zuckerberg, would run for President in 2020. That has led to, for the first time, an effort to grapple with what that would mean — for somebody who runs a company and has a large shareholding interest in that company, that has an unprecedented degree of financial, political and data power, who would then merge it with that level of public power.

Additionally, there is the fact that two companies, Facebook and Google, have purchased over eighty percent of the brain power in the world for developing artificial intelligence and are developing that incredibly important technology privately, therefore, with no public understanding or discussion about what the impact of that technology might be.

I think it is impossible to exaggerate or overstate just how extensive and consequential digital surveillance has become, more or less in complete secrecy, and in a very short period of time. As I think you know, I have spent the last four years reading through many thousands of top secret documents from the most secretive agency, the NSA, in the world’s most powerful government, which is the United States government. In doing so there have been all kinds of remarkable things I’ve seen, and I remember, very vividly, the thing that actually shocked me the most — that the NSA has a motto. That motto is, collect it all. And then when it wants, monitor and analyze all forms of human communication that take place digitally in the world, not just in between foreign nationals but also American citizens. Every single day the NSA collects and stores billions of human communication events.

The most vivid event that highlights and dramatizes the magnitude of what we’re talking about is when, in late 2014, we were able to report that the NSA and its allies were spying on the communications not only of terrorist leaders or of regimes in autocratic, adversarial countries but also the leaders of democratic allies, particularly the phone calls of the German Chancellor, Angela Merkel. In a telephone call that Merkel later made to President Obama in the wake of that revelation, she said to him that, as someone who grew up in Communist East Germany, that these activities were very redolent for her of what the East German Stasi was doing in her childhood.

News media representatives interviewed former intelligence agents with the East German Stasi and asked them about Chancellor Merkel’s statement. These agents said that what the NSA was doing was so far beyond what they were even capable of dreaming about. The idea of being able to collect everything digitally and having algorithms to analyze it and evaluate it is so far beyond their wildest dreams that this is something that you can’t even compare to the machinery that they built. That’s the reality of what has been constructed.

So for me, I know that when I read through these documents for the first time and understood the full extent of what had been done, what offended me the most was not the assault on privacy that these documents revealed, but the assault on democracy. The fact that the government had taken the most influential and significant human innovation, at least of the last several decades, and converted it from this tool of unprecedented liberalization and democratization into a tool of unprecedented coercion and control and monitoring, and had done so without any kind of democratic debate of societal understanding, made me question what democracy actually means if the government is undertaking the most consequential actions almost entirely in the dark.

In a society in which the government is keeping track of everybody’s communication activities — who is talking to whom, where they are physically, how long a conversation lasts, etc. — all the things that the government was collecting, not about foreign nationals but American citizens, how do you have a meaningful free press? How can you be a human rights activist and report on the abuses in tyrannical regimes if the fact that people are coming to you to report abuses will be known to anybody with access to this surveillance data? How do you, as lawyers or people who work in the legal profession, be able to offer assurances to your client that the information they’re telling you will be confidential and known only to you and to them in a society that, increasingly, has eroded the ability to speak without detection?

Whenever I go anywhere in the world and talk about this story, the first question people always ask is what has really changed? Everybody knows the story, more or less. But did anything actually change as a result? And usually what they mean by that is, well, there’s still the building called the National Security Agency in Washington. The doors are open and they’re still spying.

There actually are some extremely significant changes just in the last four years that have taken place. It was enough of a controversy that some actual legislative and legal reforms were implemented, things like having the government no longer collecting the metadata showing everybody’s communications here in the United States. It’s now held by the phone and technology companies. There have been reforms to the FISA (Foreign Intelligence Surveillance) Court, the secret court. For many years, only the government was permitted to attend and offer its side. The biggest change is that there’s now a public advocate to advocate against the requests for surveillance that the government makes.

Individual behavior has changed dramatically in the last few years. If you look at the number of people who now use encryption technology to safeguard the privacy of their emails and their online chats and even their telephone calls, it’s something like fifteen or twenty times higher in North America and in Western Europe than it was four years ago. It’s something like five to ten times higher in South America and Asia.

And particularly in professions where confidentiality is required, whether it be medicine or journalism or human rights activism or law, large institutions and increasingly mid-sized and smaller ones are now viewing the installment of encryption and other confidentiality technologies as their duty, as their ethical obligation, to make the promises of confidentiality something more than illusory. That has been a serious impediment in the ability of government and non-State actors to spy on peoples’ communications.

But the most significant change has taken place in the behavior of the Silicon Valley companies: Facebook, Google, Microsoft, Apple and the others. One of the first stories that I was able to report after meeting with [Edward] Snowden was the existence of a prism program, which is a program that was created by the nine leading internet companies where they essentially made it extremely easy to turn over huge amounts of data and information about their users to the United States government when requests were made. And the reason that level of cooperation existed was because they were doing it without anybody’s knowledge. And therefore, there was no cost to it, only lots of benefits.

But once this debate happened, people began demanding that their internet and technology companies demonstrate a serious commitment to the protection of their privacy. Facebook and Apple and Google became concerned that they would lose an entire generation of users to social media companies in Germany or Brazil or South Korea. And so those companies began viewing the protection of privacy not as a political value, but as a commercial imperative, as something necessary to safeguard the future profitability of their companies. And they now do actually install very sophisticated and difficult to breach end to end encryption in many of their technologies that prevent the U.S. government from spying on whoever it is that they want.

Four years ago, technology was the number one leading tool of how privacy was compromised. Now, technology is the number one leading tool for how privacy is protected.

I want to spend some time talking about the value of privacy. I think that the primary mindset that causes people to be willing to be dismissive of the importance of privacy, to think that invasions into and erosions of it aren’t really that bothersome is a line of thinking that goes something like this. It says, look, if you’re a terrorist or some really horrible criminal or a pedophile, somebody who uses the internet for really hideous things, then, of course, you should be worried about privacy. But I’m not that. I’m not a criminal. And I don’t use the internet for any criminal activity. And so, I just am not one of these bad people. I really don’t care about privacy because I don’t have anything to hide.

I think that the people who make that claim don’t actually believe it. And the reason I’m so confident saying that is because I think you can look to their actions and see how insincere it actually is.

The long time CEO of Google, Eric Schmidt, gave a 2008 interview where he was asked about all the different ways in which Google impacts people’s privacy, makes immense amounts of data about your life publicly available, enables people to create an almost comprehensive profile of everything that you do simply using data made available by Google products. And when asked about Google’s effect on privacy, he said if there’s something that you’re doing that you don’t want other people to know about, maybe that’s a pretty good indication that you shouldn’t be doing it in the first place.

In 2009, CNET, in response to this interview, decided to do an experiment and find out everything that they could about the personal, financial and private life of Eric Schmidt, exclusively using Google products. They put together this remarkably invasive and rather embarrassing profile of him, using only those tools. And in response, Eric Schmidt did not say I’m not really bothered by this because I have nothing to hide. He was indignant about it. Threatened to sue them. And then ordered Google employees not to speak to CNET, a ban which lasted for a period of at least two years.

And every time in the last four years that I’ve gone somewhere and someone has said to me, I don’t really care about my privacy because I don’t have anything to hide, I’ve always done the same thing. I take out a sheet of paper and a pen. And I write my email address on this sheet of paper. And I give it to that person. And I say, here’s what I want you to do. When you get home, I want you to email to me all of the passwords to all of your email accounts and your social media accounts. Not just the nicer, respectable work ones with your name but all of them, so I can just basically troll through them at will and find the things that I think are interesting and then just publish them. After all, you’re not a bad person. You’re not a terrorist. You’re not a criminal. You have nothing to hide. To this day, not one person has taken me up on that offer. And the reason is that instinctively, even if with words we dismiss the value of privacy, we know its actual importance viscerally.

There are all kinds of fascinating social science and psychological studies that demonstrate that fact. That when we are acting with the possibility or with the belief that someone is watching, the range of behavioral choices we consider shrinks considerably. It’s only in the realm where you can go where you’re not being watched, do things like dissent and creativity and exploration, only in those places do those things exclusively reside. It really is central to how we, as human beings, need to live if we’re going to be free and autonomous and fulfilled human beings.

And so a world in which we allow privacy to be radically eroded, even though it may not be obvious, is a world in which we allow very crucial and fundamental aspects of our lives to be deprived and taken away from us. And I think at the very least, if that’s going to happen that ought to be the byproduct of thoughtful and reflective understanding of what privacy is and what the harms are from losing it, as opposed to something that we’re just swept into doing through excitement or fear mongering or other kinds of emotional manipulation. And that’s what I try and do, essentially, when I talk to people who work in technology, is just try and put those questions out there so that we think a lot more about them.

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