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Courage is Contagious: A Conversation with the ACLU's Ben Wizner

The Huffington Post The Huffington Post 26/10/2015 Davis Schneiderman
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Ben Wizner is busy.
He directs the ACLU's Speech, Privacy, and Technology Project and is part of Edward Snowden's legal team. On November 2 at 7:30 pm, Wizner will speak at Lake Forest College. His talk, "Collecting it All: Mass Surveillance and the Future of Privacy," will focus on how surveillance technologies have been adopted more quickly than democratic controls, and how Snowden's revelations have prompted long-overdue discussion as well as new oversight of the intelligence community.
Wizner was kind enough to speak with me by phone, and what follows is an edited transcript of our talk.
Davis: Would you mind if I record our conversation so I can easily transcribe it for the interview? I always ask but it seems doubly important to ask you about that.
Ben: [laughs] It's absolutely fine.
Davis: We're really excited about your coming to Lake Forest College, and let's jump right in. Your name is linked to Edward Snowden's, but you've been working on issues of privacy and surveillance for a long time. How did this all start for you?
Ben: Actually, Snowden has joked that he knew who I was before I knew who he was, which has a creepy ring, given the job that he had before. But what he really means is that he was closely watching [the ACLU's] work to reign in intelligence abuses long before he acted.
Davis: So how did you end up doing this?
Ben: I went to work at the ACLU in Los Angeles in August of 2001, thinking that I would work primarily on issues of jail and prison conditions. Los Angeles County has the largest jail system in the world. And the ACLU there had been litigating conditions there since the 1970s. Then, about five weeks after I started with the ACLU, we had the 9/11 attacks, which ushered in a new era at the ACLU.
A lot of issues that we thought had been resolved involving civil rights in this country were reopened. All of a sudden you saw Muslim Americans, or people who were perceived to be Muslim American, being kicked off of commercial flights because other passengers were uncomfortable....We saw legislation that discriminated against non-citizens for dubious national security reasons. And so I ended up having a docket of cases that was centered on the country's overreaction to the 9/11 attacks.
Around 2004, I moved from Los Angeles to the national ACLU office, when we were creating what we now call our National Security Project, [where I began] working on issues related to detention, interrogation, and watch lists. I traveled to Guantanamo a number of times, and represented--unsuccessfully, I should say--a number of torture victims.
In 2011, I moved from working exclusively on these national security issues to directing a new ACLU project we called Speech, Privacy, and Technology, which is aimed at the intersection of technology and science on the one hand and civil liberties on the other. I have this odd sense of timing, because Snowden came not that long after that.
Davis: I can see the professional trajectory, yet would you go back even further? When did you decide that you wanted to work for the ACLU, or that these issues were your concern?
Ben: It's a fair question, and especially since you spend your time around college students I can see that it would be of interest...I would say it goes back at least to high school, though not to the ACLU in particular. I wanted to try to find a way to weave social justice work into my life. In college, I wasn't certain whether academia would be my profession and social justice what I did the rest of the time, or vice versa....For me, the experience of writing a college thesis was all it took to tip the balance [laughs].
I decided that I wanted to spend my days not alone in a cubicle surrounded by books but in an environment where I was interacting with people. After college I moved to New York City and worked for an organization that provided legal assistance to homeless and near homeless people. After a few years of doing that, it became clear that I could do more with a law degree. I went to law school with the idea that I would do legal services work on behalf of poor people and poor communities. And then, life happened. You have other experiences that you couldn't predict, that lead you in new directions.
For a time I thought I would do death penalty work in the south. For a time I thought I would work on prison conditions....I went to the ACLU thinking I would work on a particular set of issues, and I ended up working on a very different set of issues. It's been an unexpected career.
Davis: Is it fair to say that you're also attracted to ways that you can make, always, a larger impact in the work that you do?
Ben: I don't think so. I try to avoid that kind of thinking. I don't think that the impact that one has at the ACLU, working on these broader issues, is larger than the impact of a legal services lawyer who helps a family avoid eviction.
It's a different impact. There are days when I wonder whether I'm helping anybody. I sit on the seventeenth floor office in the New York financial district and work on issues that are abstract. And people who do direct services work don't ever experience a day where they haven't given concrete benefit to someone they're representing.
For me, the question is not what makes the biggest impact, but what is the best fit. If you make the basic decision that you want to work for justice and people rather than wealth and property, the question after that is 'what work will be most fulfilling'?
Davis: That's well put and I appreciate the nuances. I was reading an interview that you did with The Scene, and you said you found there to be a lot of interest in Snowden, of course, but that you also want to help people appreciate the ways in which mass surveillance poses a threat to democracies. So let's talk about surveillance. Could you speak a little bit more about the mass surveillance apparatus, and the primary issues facing us right now?
Ben: I think the main issue, really, has been driven by technology. When we think about the privacy that we have enjoyed from law enforcement, and the liberty that we have enjoyed, it has been protected as much by cost and resources as it has by law. What I mean by that is, in the past, if governments wanted to know where you were, they had to invest considerable resources in that project. They would have to have teams of agents following you around in shifts. It would be quite expensive, and that in itself imposed a limitation on how many of us could be tracked and followed.
Yet today, one officer sitting with a laptop can track the location of thousands of people in real time, just by being in touch with a phone company. It's a new world where for the first time in the history of the world, governments--and also corporations, but the focus here is on governments--can collect and store full records of our lives at trivial cost. That, I think, is the basic challenge. Because it is possible, it has been done...for intelligence agencies who create and maintain massive surveillance time machines that effectively allow governments to hit rewind at any time, even years after something has happened.
And what we have seen over the last decade, since 9/11, is that this capability drove our practices rather than our practices being constrained by our values. The former director of the NSA General Keith Alexander's motto was "collect it all."...If we can collect it all and show that it's useful, we'll get the budgets that we'll need and we'll get the permissions that we need...and that's what happened.
So, not until Edward Snowden brought the public into this conversation were we able to have the long overdue normative debate about whether we should be doing those things, not whether we can be doing these things. And what about when one branch of government has every bit of intimate information about every other government official, every judge, every member of Congress? It's insufficient to be told, "Trust us, we're not going to abuse it." When we look at the history of this country, that kind of power has always been abused.
Davis: This has direct Stalinist overtones.
Ben: It could, but I am not saying that, automatically, the fact that this information is possessed means that it will be used in the worst possible way. Let's talk about something more benign, which is just the ordinary mission creep of government. Information is collected purportedly for purposes of stopping terrorism, and terrorism is an extremely remote event, almost impossible to predict on a small scale. Yet we are now sitting on these massive databases that have little predictive value but enormous forensic value.
Having a record of everyone's phone calls isn't going to stop a terrorist attack, but it might solve a lot of crimes. So, that's what you'll see, and what we are already seeing: the migration of the authority to access this information, from intelligence agencies to law enforcement agencies. And soon it will be the DEA and the FBI, and before long, local law enforcement agencies that will have access, really, to the full record of our lives. And I can imagine many in law enforcement would nod their heads and say, "What's the problem with that?"
Davis: There are two points embedded in what you put so eloquently. The first point is the uncritical acceptance of new technology: If it exists, we should use it. Of course it's good; we'll sort out anything that's bad later on. The second point is one I have been considering. I have been teaching a "mash up and re-mix course," and one of the themes we hit upon again and again is how difficult it was for people to make what we would call "cut ups" in an analog age, where one must physically cut tape. But, how easy this is to do from your phone, from your computer, from this thing in your pocket that's more powerful than what put people on the moon in 1969.
There's something about that intense miniaturization of the technology, and the fact that everybody has it, that in some ways leads to people being less concerned about the potential problems.
Ben: I guess, where I will push back a little bit, is that, when the information about the NSA's practices was put before the public for the first time in 2013, there was tremendous concern and pushback. There's evidence that people have changed their behaviors, that many, many more people are using encryption to protect their privacy. We've seen historic democratic reform. Congress doesn't act in a vacuum. When Congress, for the first time since 1978, passed legislation that restricts rather than expands the authority the intelligence committee, they're doing that because they think that's what the people want.
Davis: That was an amazing moment.
Ben: Even courts are not immune to public opinion. Courts were very influenced by 9/11 and I think courts have been influenced by the new atmosphere enabled by Snowden. So, in May 2015, when a Federal appeals court ruled unanimously that the NSA mass call-tracking program was illegal, that was also a reflection, I think, of a changed popular mood around these issues. I don't generally dispute what you say, but I do think that our tendency is to want to see the benefits of new technologies without keeping a sharp enough eye on the potential downsides.
These technologies are neutral. There's no surveillance technology that doesn't have a beneficial use that we can imagine. A surveillance drone, which seems creepy, would be tremendously useful in South Sudan if flown by Human Rights Watch, or over Ferguson if flown by a police accountability group.
Davis: It's the use of the technology rather than the technology itself.
Ben: Right, and since the technology is neutral and since you can imagine both creepy and beneficial uses for all of technologies, what separates those poles are the rules, values, and norms (of usage). We need to have the conversation about that before the technology is widely deployed. There was no reason, really no legitimate reason, why the public could not have known that the NSA was collecting the phone data of every phone call and storing it for five years.
Davis: What do you think about the fact that in the bulk collection case the collection was ruled illegal but the court didn't go so far as to say the program itself was unconstitutional?
Ben: They didn't go that far because they didn't have to. So, basically, if you rule that Congress never authorized it in the first place, which is what the court said, you don't even reach the question of constitutionality....Obviously I have my own views about that.
Davis: You suggest that people have become more aware, that they're beginning to encrypt their data more, so let me ask about students. What I hear from skeptical students is that well, "I'm fine with Facebook. I'm fine with other apps that ask for my data. I'm so used to giving my data away for free, and I am not violating the law. Therefore do I need to be concerned about the everyday transfers of information that we're giving for commercial purposes, that aren't even collected by the government?"
Ben: I think it's both. There's a huge difference between something we give up with our consent, and something that is taken from us in secret. We were not consulted about the ways in which the NSA was conducting mass domestic surveillance. We only found out because of a whistle blower. Moreover, we're in a different position vis a vis the government and corporations. Corporations can abuse us as consumers, but they can't take away our liberty, they can't lock us up, and they can't target a drone at us. There is authority over our life and liberty that the government has and that corporations don't have.
And I actually think that students, younger people, have a much stronger intuitive sense of some of the nuances of surveillance and privacy than older people. It's exactly the opposite of what you hear, that young people are social media exhibitionists and they don't care about privacy. Young people have spent their lives under surveillance, whether by their parents, by their teachers, and so they have learned very sophisticated ways to communicate what they want to whom they want.
While their parents and grandparents are now on Facebook, they've long ago moved onto other things like Snapchat, and even when they're on the same platforms as their parents they use language that their parents don't understand.
Davis: There's a code system. I recently spoke with students at a community college, and a young woman told me that she grew up in a home where there were cameras in every room. Her father would call her on her cell phone and say, "Bring the laundry upstairs. I see that you're in the living room right now." While it was clear that she didn't like living this way, she also felt that it was also just her home culture, and that this was ultimately parental concern. I wonder if we wait too long to fight back against something, do we risk normalizing it to the point where we can't stop it anymore?
Ben: I do think that the longer that we engage in these practices without debate the harder they are to dislodge. I do think that's true. On the other hand, I'm cautiously optimistic; I think people are very interested in these issues; everywhere I go to speak, people seem relieved and excited to be talking about this....They do have a sense that there's something troubling about a world of universal tracking, universal collection, and universal storage, whether it's done by corporations or by governments. While this debate is overdue it's not too late for us to make meaningful choices about it.
Davis: Do you have any comment about drones in particular, or about the ways Edward Snowden may have maybe prepared the ground for this release of materials about the unmanned aerial vehicles?
Ben: There is a very direct link if you've seen Citizenfour. Glen Greenwald and Snowden are in a hotel room in Moscow and Greenwald is writing notes to him and passing him the notes. Those notes were about the source for these drone stories that were published by The Intercept. What Greenwald was saying is that courage is contagious, and that Snowden's action inspired this other individual to come forward. In that sense, you can draw a straight line between Snowden's actions and the recent disclosures about drones, but also, schematically, I think, they are similar as well: these were people working deep inside the intelligence community where extremely consequential decisions about who we are as a country are being made in the dark, without public consultation, and without any kind of accountability.
Davis: As one of Snowden's lawyers and also as a public advocate for these concerns, your job is to help further raise awareness about mass surveillance, but also to represent your client. Do you envision a way that he will be able to come back to the United States?
Ben: I think I know how it will end, I just don't know when. It's inconceivable to me that Snowden, over time, will be viewed as anything other than a patriot who did what he did for noble reasons and who improved our democracy by revitalizing oversight. He's already viewed that way, overwhelmingly around the world, and by many people in the United States. As time goes on, the claims that he harmed national security seem less and less plausible.
The evidence that he improved our democracy becomes more and more clear.I like to say Daniel Ellsberg equals Snowden plus "x." We don't know what "x" is.
Davis: It seems that as Snowden's revelations help to dismantle aspects of the surveillance state, that at the same time dismantles the argument that Snowden is a traitor. As we unpack one, we unpack the other...because it's the same people who often hold both positions.
Ben: These claims of harm to national security just don't age well. Remember that the US government took the position, in the Supreme Court, that publication of the Pentagon Papers would cause grave and irreparable damage to the national security. A decade later the lawyer who made those arguments in the Supreme Court wrote an op-ed in the Washington Post saying that he had never seen a shred of evidence that there had been any harm to national security. There's a crying wolf aspect to it.
The government uses the same incendiary language every time they lose control of a narrative, but I also think that Snowden's consistent, calm, measured, eloquent voice rebuts the extreme claims about him as well as anything else could.

***
Davis Schneiderman is Associate Dean of the Faculty and Director of the Center for Chicago Programs at Lake Forest College. His most recent work is the appropriation novel [SIC].
Many thanks to Lake Forest College students Sydnie Bivens, Victoria Nichols, and KeAthony Thompson for transcribing this interview.

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