Ethan Zuckerman’s online home, since 2003

Aspen Ideas Festival: Surveillance society

Elliot Gerson of the Aspen Institute introduces a conversation titled, “Your life in a surveillance society”. The discussants are Jack Balkin, legal scholar and philosopher at Yale Law School and Admiral Mike McConnell, former director of the National Security Agency. Gerson offers examples of surveillance in our lives, including the airport, cameras to detect speeding, but also activities like Twitter. He suggests that there’s an increasing acceptance of devices and mechanisms which we might have past thought as totalitarian.

Balkin rejects the term surveillance, and breaks the term down into the collection of information (which is possible via many different means), the collation of information (because the collection of information alone isn’t all that valuable), the analysis of information and producing new information out of it. The power often comes from collation, not from collection – the fact that a man bought a pork chop isn’t very interesting until we figure out it was Rabbi Bernstein.

We’ve got more powerful tools than ever before for collection, collation, analysis and, ultimately, for control. If you have an information society where problems are solved via information, you automatically have a surveillance society. The question is who’s doing it – the government, private entities, or you and me.

McConnell suggests that money won’t work without surveillance – the ability to operate transactions around the world in under a second implicitly requires surveillance. He suggests that WalMart’s success is based on surveillance, careful watching of their supply chain. In the intelligence community, he tells us, “surveillance” is a passive term, while “reconaissance” has an active connotation, of going out and seeking information.

Balkin is asked whether government or corporate surveillance is more important. He answers, “Yes”. He notes that there’s a relationship between private companies that collate data and sell it to government entities. “When you think surveillance, you think NSA… but you should be thinking about the delivery of healthcare benefits.” We’re primed to think about government information collection as a threat, but we should be thinking more broadly about powerful actors in society. This includes Walmart and Choicepoint… but this might also include the person next to you with a cameraphone, or anyone you interact with online. We should consider “democratic surveillance”, where surveillance tools are placed in everybody’s hands. Democratic surveillance sounds much nicer, but that’s not necessarily the case.

McConnell is asked “Who watches the watchers?” He offers the truism that “we’re a nation of laws, we’re governed by the Constitution” and that oversight needs to be in the law. Asked whether we got the law right in the Patriot Act, he observes that it was passed very, very quickly and is likely to be changed at some point. But he points out that there’s been government abuse of surveillance as far back in history as we know. He reminds us of FBI surveillance of chief Justice Earl Warren under Hoover.

He looks at the complexity of our FISA laws. In 1978, at the heart of the Cold War, the structure seemed pretty easy: if it’s foreign, it’s okay to surveil, but if it’s domestic, it has to be for foreign intelligence interests and needs to be of an agent of a foreign power. But technological change forced a three-year process to change the laws to reflect technological change. That said, “we don’t even know how to think about surveillance.” As such, the danger is that “bureaucracies will define reality in their own interest”, and may prevent the changes we need in telecommmunications as a whole.

Balkin suggests that it’s hard for legislative branch to oversee surveillance. The executive branch tends to stonewall these inquiries, and so “the executive branch is where the action is.” We may therefore need checks and balances and internal policing within the executive branch on these issues.

McConnell mentions that the Navy has never initiated changes internally. Shortly before Pearl Harbor, the Navy’s football program featured a battleship and the legend, “No one has ever sunk a Navy battleship.” The Pearl Harbor attacks moved the Navy from battleships to aircraft carriers. Congressional pressure in the 1980s forced the armed forces into joint command, which made the US military the strongest in the world. With these examples, he suggests that it’s Congress’s responsibility to hold the executive responsible.

Asked a question about tradeoffs between privacy and surveillance, and the willingness of youth to sacrifice privacy, Balkin again parses a question into parts. He suggests that, if you have the benefits of an information society, these security concerns come with the services you demand. You adjust to the information sharing that comes with these new services. He mentions that feelings about privacy have a great deal to do with your age cohort: what technologies did you grow up with, and what do you use? Some of these technologies require trade-offs – Facebook requires some information sharing, but it allows people to do things they never did before. Finally, we experience “privacy myopia” when we encounter tech we don’t understand. We don’t know what GPS in our mobile phones could be used for, so we let it slide and hope that nothing bad happens.

McConnell makes the point that, to participate in the intelligence community, you need to pass a security clearance. To pass a clearance, you subject yourself to extreme surveillance and scrutiny. That work is currently done by contractors – while those contractors are under the same laws as the intelligence community, it’s potentially a concern to all of us.

The panel is asked a question about the US government’s “cybercommand”. McConnell takes ownership of the idea: “The Cybercommand was created because I recommended it.” He argues that we need the capacity to do more than just passive surveillance of bits – we need to seek ways to exploit holes in enemy systems so we can shut down their air defenses. We need to protect banks, so we need to figure out how people are attempting to break these systems and block those attacks before they happen. This need to be a function build on the NSA, McConnell argues, because we need their unique codebreaking talents. He reassures us that domestic surveillance needs to focus on international targets – domestic surveillance must be of foreign targets and needs to be warranted. But he sees a domestic role for cybercommand in supporting the department of Homeland Security. (He doesn’t address whether the militarization of cyberspace is a more appropriate paradigm than crimefighting, or an engineering paradigm of repairing holes.)

Balkin suggests that forgetting may be harder than remembering in our current digital environment. He suggests that we may not want institutions to remember forever – we may want them to have a form of institutional amnesia. He’s challenged on this point from an audience member – why would we want to forget information that could help solve a long-cold murder, for instance? Balkin’s answer involves distinguishing between different kinds of information states. Authoritarian states are information gluttons, in the sense that they want to know everything about you, and information misers, in which they don’t reveal data about their own operations. We want a democratic information state, which is an information gourmet, not a glutton. We need some government collection of data to operate social services, but we don’t want a government to know and remember everything. If it does, we want it to either forget or forgive. And we want it to be an information philanthropist, offering as much information as possible about its own operations.

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