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[Transcript] Surveillance and Its Discontents: A Conversation Across Cyberspace with Edward Snowden and John Perry Barlow

BY Jessica McKenzie | Thursday, June 12 2014

John Perry Barlow and Edward Snowden at PDF14 (Photo: Doc Searls/Flickr)

Note: Some redundancies and filler words have been edited out.

Edward Snowden: Hello to everyone there.

John Perry Barlow: It's a pity you can't see the audience. They are as happy as they would be if you were here. You're obviously not as happy as you would be.

ES: I would be happy to be there in person.

JPB: They're very glad to see you, as am I. The extent to which conversation between us has become easier and more casual is an incredibly good sign especially given the fact that I think there are significant forces and well-funded forces that would rather you and I not have these conversations at all.

ES: You know I think that's one of the big revelations of the last year. When this started none of us really had a full picture of what the government was doing what they had sort of entitled themselves to do without asking the public, without even asking the majority of Congress, instead only a few sort of shadowy committees that make decisions behind closed doors, private meetings, there's no press, there's no public advocate, because these people on the intelligence committee they don't represent America they represent the defense industry.

JPB: As far I can tell they don't even represent the majority of people in intelligence.

ES: What I would say is that we've seen sort of a growing appetite for control among government institutions and it's important to remember that this is not just an American problem this is a global problem. This is something we're seeing around the world where basically programs and surveillance, the way law enforcement works in the wake of these terrorist events, is they've changed the model.

The game has changed from where law enforcement investigates criminals, where intelligence agencies investigate specific targeted threats, to where instead of investigating criminals they're investigating citizens. They're investigating all of us. And that's a real problem, because you know we fought a war to have protections, to have rights, like our Constitution, like our fourth amendment, that says not only can you not search our communications without a warrant but you can't seize them in the first place. You can't create a giant database of all of our activities, of all of our communications and then sort of go back in time and search them just because you want to know what's going on with us.

JPB: I think a point that you and I and others of our ilk need to make increasingly frequently is that in the unique case of the United States, national security means the security of our founding principles. It's not our borders, which are extremely vaporous and difficult to define at this stage, it's not our culture, such as we have one beyond Mickey Mouse. It's not anything except those founding documents that we still profess to believe in. And if we are insecure in our beliefs, in our willingness to protect and preserve those beliefs, that's a threat to national security.

ES: Right it's the question of are we protecting the nation or are we protecting the state.

JPB: That's a very good way of saying that.

ES: The nation...[garbled] reflects us, our way of life, our shared values, and if we're destroying those values, if we're trying to burn down the village in order to save it, are we really making progress? Is that what America is all about? I don't think we should have to go around before we send a text message or we carry a cell phone or we make a purchase or you know we say goodnight to someone we love, that we have to think about what that's gonna look like in a government database tomorrow or a year from now or five years from now. And the fact that they've got data collection going back five years or more with a waiver should be a concern to every American.

JPB: One of the things that people have a difficult—especially oddly enough in the intelligence agencies—have a difficult time with is the difference between data and information. And you know this difference and it's a profound difference. Data are simply facts about the phenomenal world, information is something that has been deemed by a human mind to be relevant in a specific context which gives it a living quality.

ES: I mean you can think about one of the biggest debates we've seen over the last year in government circles has been about metadata. They've said you know metadata, all of this signaling information about where we go, who me met, who we called, how long it took, all the time we spend doing these different activities in our lives.

Metadata is a comprehensive record of what we do and really who we are. And the defenders of mass surveillance, the defenders of suspicionless surveillance, have told us it is nothing to worry about, it's not that serious, because it's not the actual words that we're speaking on the call, it's just everything else about our entire lives. But something that's amazing that has happened this same year is that the government itself has started to abandon that. Michael Hayden, the former director of the CIA and the NSA, literally admitted to a reporter that we kill people based on metadata. That's it. That's extraordinary. Stewart Baker, the former General Counsel of the NSA—

JPB: And an old friend.

ES: —he said metadata tells you everything about a person. And he's right. And that's what people, that's what we've all come to see. If the government is collecting metadata without a warrant, they're collecting everything about everyone, and what does that mean for our society as we go forward.

JPB: Well it could mean nothing, well it means something in any event, but it could mean relatively little, as long as the judgments that are made about that information, as long as the motivation for seeking certain kinds of information and winnowing that out of that data as opposed to other kinds is transparent and well-understood by everybody who is being surveilled.

For example, I took a walking tour of the Tenderloin the other day and there were surveillance cameras everywhere. I didn't mind that. I didn't mind that there were microphones everywhere that could pick up the exact location of a gunshot immediately after it occurred. I could see the purpose in that. But by the same token they were picking up a lot of other information that in hands different from the ones that they may be in now could be very differently used.

ES: There is a distinction between things that are held in private hands and things that are held in public hands, because when the government collects information on you the things that they can do with it are extraordinary. Again getting back to Mike Hayden, you know he can kill you based on this. The government can put you in jail, they can curtail your rights, they can monitor you intrusively. But, even though the private sector doesn't do as much today because they don't have the same authorities, the powers and privileges that they're enjoying are expanding. There's very little regulation about the private collection of data, because to a great extent that's business model of the current Internet.

What we really need to think about is what we want to allow in the rules of play to be in society not just for governments but for everyone. There is an organization of academics and specialists, experts on surveillance policies and human rights around the world who have been working extensively on this and last year they proposed something called the International Principles on the Application of Human Rights to Communications Surveillance. It's called the Thirteen Principles and basically it boils down to any information that's collected and used has to be used for purposes that are necessary and proportionate to the sort of case that we're encountering.

In the governments' examples it means you can't monitor an entire country because you're worried about a few criminals. That's not proportionate to the threat and it's certainly not necessary. For companies it would be similar things. If you are collecting information for advertising or for monetizing your service, you have to only collect that information which is absolutely necessary for those business purposes and only retain it for the bare minimum of time necessary to achieve those purposes, not sort of collect these global profiles on everybody who uses your service, your email address books, who you talk to, how long you talk and things like that because that's going beyond what's necessary and it creates a dangerous situation that academics have described as “databases of ruin” where basically when you aggregate so much information about people, regardless of where it's at, whether the government is holding it, whether the telecommunications companies are holding it, whether advertisers are holding it, the temptation to abuse it is simply too great for anybody to resist over time.

JPB: There's also, I don't know about you, but when I first got around computing I found there was something seductive about an empty field in a database. Completely irrational, but even though filling in that field was probably of no particular relevance, I would go to some trouble to make sure that was smoothly filled in. And I think you have an entire culture that does that. And now that culture has suddenly been given tools that make it trivially easy to do that in every instance.

ES: I mean, when we think about it from the technical perspective. Technologists, engineers, we like to solve problems and we like to see how far the system goes and when we see we have access to data we want to collect it because otherwise it's wasted and why not. But something that President Obama said over the last year when he was caught, for example, spying on Angela Merkel was 'just because we can do something doesn't mean we should.' And that applies to all of these programs. Sometimes that field in the database needs to be left unfilled because the risk of filling it is far greater than the benefit of doing so. And that's something worldwide we need to institute principles [garbled] and agree on what's appropriate.

JPB: I'm afraid we've descended to the point—there's an old joke: why do animals lick their genitals? Because they can. We have reached the point where something very similar applies to governments except for the fact that they're not licking their own.

ES: They're licking ours.

JPB: Yes.

ES: And then taking pictures.

JPB: Which is wrong by anybody's standards, and we're not getting much from it. But that aside—

ES: I think you're really on to something there. We're not getting a lot out of this. And regardless of whether it's a joke or whether it's very serious, we've created these programs that are watching not just everybody in America but they're watching everybody in the world. And we've seen—the government's had a year now to justify these programs—and we've seen things like they said they stopped 54 terrorist attacks and then they said well, they weren't all attacks; well, they weren't all threats, well, they didn't all happen it was actually one attack and that attack was defined as a cab driver in California sending 85 hundred dollars to his family in Somalia.

The question is what did we do to make that possible, what did we give up in terms of our rights, and now we see these programs are not just affecting us on terms of our rights, on top of our liberties, are lives as Americans, but it's actually affecting our economy. Our tech sector has been devastated by the activities of the NSA, where they're reducing the trust in our products, they're reducing the trust in our government, in our country.

And citizens around the United States are losing trust in our institutions and our government because officials keep lying about these programs. It started with James Clapper and then it moved to Congress and now it's officials across the board. And we need truth and reconciliation. We need the government to wash its hands of these programs, we need to end mass surveillance, end these violations of our Constitutional rights. We need to create a better system that says security is not the only value that Americans treasure.

JPB: In fact, my motto has always been safety third. Now, I don't expect everybody to go there.

ES: You've taken some risks in your day.

JPB: Yes, yeah. The important consideration here is that we have, we've allowed a system of defaults that have not been examined in any way by the body politic to become the defaults. It is simply thought by certain sets of people that some things must be secret. But frankly as somebody who occasionally tries to justify the operations of the intelligence community, it would be greatly to their benefit if people knew exactly what they were like, exactly what the could do, exactly what they can't do, and exactly what they have a conscience about. They are endowed with both capacities and evil intent in those capacities that is awe inspiring but false.

ES: There is certainly a line. Where we don't need to know the names of every target, we don't need to know every intelligence operation out there, we need to know the broad outlines of the authorities that government have granted themselves. And particularly when it comes to the most senior of intelligence officials lying under oath, on camera to everyone in America. That has a tremendous effect because suddenly we realize it's no longer a question of who do we trust, who do we elect, who de we vote for, but can we elect anyone? Do they really represent our interests when officials can make promises about reforms and then violate those promises, violate that faith that the public invested them with in our votes, and face no consequence, face no accountability?

And this is one of the reasons that I think we see these tremendous efforts being made today. I read just today that Google has rolled out a new end-to-end encryption plug-in for Gmail as part of the Reset the Net campaign. And this is key. The Reset the Net campaign is going, we need legal reform, we need Congress to step up and reform these things, but we're past the point where citizens are entirely dependent on government to defend our rights. We don't have to ask for our privacy, we can take it back, we can use our technology and apply it in new and innovative ways [garbled]

JPB: And this is what we had to do before, back in the early days of EFF we were in a similar position with regard to the NSA. We had John Podesta inviting Jerry Berman and me down to his office in the bottom of the White House, showing us a clipper chip and how that was going to fix everything, and I pointed out to him at the time, I said look, you have an economy that's about to blow up in cyberspace that will not work unless it's a trusted economy, unless the circumstances in which it takes place have valid trusting relationships that people can enter into. And if you do something to that the consequence to your national security on an economic basis will be profound.

I mentioned this to Mr. [Todd] Park, the CTO I guess he is of the White House, the other day and he said 'Oh well we've been considering that.' But they don't consider that until they're forced to. The only reason the NSA allowed strong cryptography to be used freely was because the EFF came in and proved that it was a form of speech and that they were exercising prior restraint. But regrettably that wouldn't work now because the Justice Department the other day, as you know, was revealed to have gone in on some very important cases and lied to the Supreme Court and the Supreme Court is perfectly happy to maintain the decisions that it made while being lied to. And nobody is saying anything.

ES: Right you're absolutely right on a broad point and it wasn't just open courts, the open federal courts, the actual secret surveillance court, the one that never says no when asked 33,000 times or 34,000 in 30 years to say yes to the government only said no like 11 times. Those guys actually found that the NSA had been abusing their authorities, their programs so badly despite what the secret court told them to do that they called them out in the judgment. And that wasn't declassified you know we didn't know about this, Congress didn't know this, until after all of last year's revelations. What does that say about accountability when even our secret courts are being lied to?

The question is, how to move on from there. And we see the judiciaries, they're getting bolder, they're getting more courageous. Just a day or two ago we had a new federal case, Smith v. Obama, that ruled that yes well we can't declare this program unConstitutional right now today because of a Supreme Court decision from like 1978 that was terrible, that every legal expert says was completely wrong and needs to be revisited. But that same judge also said I'm basically making this decision under duress, my hands are tied by the precedent, but the Supreme Court should overturn this using Judge Leon, another claimant in the Obama case, as the template for how to correct our laws, how to correct these old mistakes of policy that we've inherited, that now 30 years down the road, 35 years down the road, as technologies progressed in ways these justices never imagined have ended up basically undermining not just the way we live but our Constitution as a document.

So we need this. We need judges to stand up and go 'look this isn't right,' anyone can read this and see it's not right, the NSA is playing games with Supreme Court precedent, they're interpreting laws in secret, without asking public, without talking to the majority of Congress, and the only people that the public has to rely on as advocates, are two intelligence committees that get twice as much in terms of donations than any other member of Congress who's not on those committees, and that's a problem, right? Our allegiances of these representatives aren't with us, they're with the people who are working against us, the people who decided that instead of investigating criminals they needed to investigate us.

JPB: And this is the heart of national security, in my mind, if this fabric has become as frayed and rent as it obviously has, then we have a real serious national security problem.

ES: In terms of national security we need to think about what makes us successful, what makes us strong as a country. The Black Budget that was published in the Washington Post last year showed that we're spending 75 billion dollars a year on spying. Now, do we need to spend 75 billion dollars a year on spying? That's more than we give to NASA, that's more than we give to the National Institute of Health, that's more to the National Science Foundation, that's more than we give to the Department of Commerce, that's more than, under some measures, not all the time, than we give to the Department of Education. Do we need to be able to innovate, do we need to be able to succeed economically, do we need to be able to educate our people, do we need to be able to thrive and to build and to create or do we need to spy on what the German Chancellor is doing? To me, it's an open and shut question. Do we need to be collecting the communications of everybody in America, or do we need to be educating America?

JPB: Yes, exactly. But, you know, Ed, a central point, and you must be extremely sensitive to this, are we beginning to get anything like our money's worth for that 70 billion. I mean I can't think of a single major event, and I'm going all the way back to the day that the Chinese crossed the Yalu River, I cannot think of a single major event that the intelligence bodies of United States called correctly, not one. Can you?

ES: I think this is a tough one because there is obviously some value. We can't say that no spying is good under no circumstances. [garbled]

JPB: I'm just saying that I haven't seen any of it work.

ES: [garbled] They're not going to be able to predict the future. At the same time you're right, overall. The 9/11 Commission found that we already had all the information we needed to detect the plot. We didn't need more spying, we needed to be able to understand what was going on with the information we already had. But instead what happened in the wake of 9/11, they created these secret programs of domestic surveillance, these sort of indiscriminate dragnet programs that piled more haystack on sort of this haystack of human lives that we didn't understand in the first place. Does that help us or does that hurt us?

Same thing with the last year, we got the 54 plots thing—where they're desperate to justify these programs, they're desperate to say 'we did good.' But at the end of the day, under oath, you know the director of NSA has to climb down and admit that no, all we got was a cab driver wiring money to Somalia that we would have picked up anyway because the FBI was already closing in on them under other authorities, traditional authorities, and if that's the case, if we can do this anyway, why do we need these programs? If they know enough about these people to target them under these programs, they can go to a judge, make their case and get a warrant in their magical secret court, and we don't need to mess with these 75 billion dollar programs that are not only destroying our rights they're making us less safe because other people can get into the same back doors that we're building into these systems [garbled]. It doesn't make sense.

JPB: It doesn't make sense. But, on some level, it makes sense within itself, and I think that the responsibility that people here and especially the responsibility that you have and that I have is to try to get people to understand the senselessness in way that actually reflects policy eventually. Because even the people who are in charge of the senselessness are completely impotent in the face of it.

I did some consulting to the navy some years ago, before a good man Admiral Mullen was head of the joint chiefs of staff, and one night over drinks he said to me, he said 'you know this sort of strikes me as the Crips versus the Bloods, and what've I got? An aircraft character.' It's a set of tools that are completely unequipped to anything that we could do. And we still have trident missiles that are fully funded until 2043, cruising the oceans waiting for that first strike from someplace. How do we stop the juggernaut, the leviathan, the beast?

ES: We need to have a comprehensive, a comprehensive response to sort of the failure of institutions domestically, and not just domestically but internationally. The reason government exists is to represent and champion the public interest. It seems pretty obvious to most people here that there are a lot of corporate interests that are creeping in, there a lot of political interests that are creeping in to government agendas that don't represent public means. And that's a concern because some people go well how do we respond, I'm going to vote with my dollars. You know, I'm gonna donate to this group or the other group and that's good, but you can't stop, you can't wash your hands when you donate money to the ACLU or the EFF or any of these other groups even though that's necessary because when it comes to a fight of dollars, they have more than we do.

Lockheed Martin has more money than you do; Boeing has more money than you do, Booz Allen Hamilton has more money than you do. But, they only get one vote, the same as you do, so everybody here needs to remember that we have to vote, we've got a congressional election this year and we don't only need to vote we need to campaign against people who aren't representing the public interest because at the end of the day their job is to represent us, and if they're not doing it, if they're representing Lockheed, they're representing Boeing, they need to find a new job.

JPB: One of the things you're spared though, Ed, is the palpable sense of despair that I feel here with regard to those elections. I mean it was primary day before yesterday—in California—and I care very much about the processes about democracy and John Gilmore who I'm staying at the moment said 'well, did you vote?' And I laughed. I think it's the first time in my life that I ever laughed at that question. And the fact that I would laugh at that question is not a good sign.

ES: That is a fair concern. Because we've all seen this, we've seen a number of elections now where you know we've been promised one thing and we've gotten another. And the quality of the candidates that we're seeing, it seems like we have to choose between the lesser of two evils, right? It becomes this whole partisan red versus blue thing, which team are you on. And that's not good for the country.

Parties don't matter, parties don't represent you, parties don't represent our interests, parties represent party interests. We need citizens to run, we need people who aren't professional politicians, we need people who aren't a part of the system more broadly who represent public interests who represent our interests as a class of citizens. And we need to campaign for that. We need to vote for them. And we have to make changes, from the bottom up, where we basically go, yeah the system is broken to a great extent, we are disenfranchised, but if we don't step up and change the system ourselves we're the ones who have to live with the consequences.

JPB: It may well be that the place where it is broken most completely and possibly permanently is at the nation-state level. I said 20 years ago and believe more wholeheartedly now that we're about to see the greatest renaissance of the city-state since the Renaissance. Because the nation-state is exactly the wrong level of government to work well in a heavily informatized age, where there is simply so much information coming in that it starts to fibrillate, as any natural system will if it has connection shock.

ES: There is something to be said for I think the ponderous nature of the nation-state in the modern age when we're so well connected when our communications systems are so robust, so capable, do we really need this sort of massive sprawling superstate to represent our interests?

When you look broadly at governments as a problem, governments as a challenge around the world, small states, small governments are typically more representative of their populations. I don't mean just in terms of the United States I mean you know your county government, your city government, because you can access these officials, you can talk to them and make a case, and they don't have a tremendous amount of resources separating them from you through all the bureaucratic offices.

So we do need more accessible government, we don't need sprawling government, and we don't need these tremendous concentrations of power into a tiny amount of hands. It's the 99 percent versus the one percent problem, whether it's in business or in government, and I think we do need to take steps to address that and the first step is talking about it.

JPB: And believing in it. And the first step really, frankly, Ed, it is having—I wish there were more—but having somebody like you. Who is capable, willing and smart enough and clear enough to stand up and say I'm not going to take it anymore and this is what's wrong with it and this is why it has to stop. And you know I hate the fact that you are practically alone in this, we are doing our best to proliferate your kind, but I'm very grateful for the one that we've got. Very.

ES: You know I appreciate the compliments but the reality is I didn't do anything special. It's critical to remember that what I did was a civic duty, what I did was what all of us would do I believe in the same situation. If you are sitting at my desk and you see the massive systemic violation of our Constitution, and the public doesn't know about it, you know, what would you do? It's a challenge but we have to step up on a broad basis, we have to say, you know I'm not special I'm not you know this super genius, I'm not particularly morally gifted versus the common man. This is about all of us standing up and saying what kind of country we want to live in.

JPB: You're brave. You're brave and you know you're not pretending to be asleep. You know the Navajo have a wonderful saying which is that 'you can't awaken somebody who is pretending to be asleep.' That describes a very large percentage of the American public at the moment. They're playing possum.

ES: A lot of this comes down to the fact that we don't like to rock the boat about things we don't see affecting us personally and that's the reason that a lot of people don't go out and campaign against all of these, you know, political problems, against all of these things that do affect us, but in a way that they don't seem directly because it hasn't hit them yet.

The real problem is when you do that in terms of surveillance, when you do that in terms of mass surveillance, when you do that in terms of your Constitutional and your human rights. These are rights that you often never get claw back because once the government grants itself an authority it's loathe to give that up.

And when we give them a database of all of our human lives, all of our activities, who we love, what we think about, what we look up on Wikipedia, and we let them hold that forever and ever, as time goes on we let them build these massive data spanners, to build these sort of domains of data about our domestic lives, we might trust this President, we might trust this Congress, we might think today's Director of National Intelligence is the most moral man in the universe, but what happens after the next election, and the next election, and the next election?

It's a system of turnkey tyranny that we've allowed them to build—well actually we didn't allow it because we were never asked for our consent—but it has been built in secret, behind closed doors and now we're living with it. The question is what are you gonna do about it?

JPB: That is the question. And unfortunately that is all we have time to ask, is that question. But I hope that question will ring in everything we do here over the next couple days and in everything we do I mean the United States of America such as it exists, exists to ask that question and to answer it right. And God bless you, Ed Snowden, for helping us answer it.

ES: If I could just say one last thing. You know, when I look over the last year I had to give up a lot to do what I did and my biggest fear was that nobody would care, nobody would talk about this, but this, the people in this room and the conversation that we're having, shows how wrong I was, and you know I'm so thankful for that.

I think it's critical because it shows that we're not going to turn the page on massive systems violating the Constitution and things like that overnight, it doesn't happen, government doesn't turn the boat immediately but the fact that we're talking about this the fact that you are talking about this the fact that people care shows that we will get a better and more accountable government and now—all I did was I returned public information to public hands that never should've been kept from the public in the first place—it's up to you guys to end this conversation. And you know seeing this level of support just encourages me that you will, and [garbled]

JPB: Speaking of support I think this is a good time to announce that a group of us have come together and started the Courage Foundation to support your legal defense, and I encourage everybody in this room and far beyond these walls to donate to—actually we can't receive donations under the yet, but can receive those donations and they're relatively easy to make and it's gonna take a fair amount of money to deal with a case where the president of the United States is willing to scramble entire nation-states in order to hijack an airplane. We're up against a lot.

ES: One last thing, for the people who don't have a lot of money, who can't participate in auctions. Just remember, the Reset the Net thing that's happening today is important because it protects not just you, but it's herd immunity for everybody that you're talking to. And it doesn't cost a thing to participate. Thanks.