Because of the revelations of 2013, both houses of Congress launched multiple investigations into NSA abuses. Those investigations concluded that the agency had repeatedly lied regarding the nature and efficacy of its mass surveillance programs, even to the most highly cleared Intelligence Committee legislators.
In 2015, a federal court of appeals ruled in the lawsuit ACLU v. Clapper, which challenged the legality of the NSA’s phone records collection program. The court ruled that the NSA’s program had violated the Patriot Act and, moreover, was most probably unconstitutional.
ACLU v. Clapper was a notable victory, to be sure. A crucial precedent was set. The court declared that the American public had standing: American citizens had the right to stand in a court of law and challenge the government’s officially secret system of mass surveillance. But it becomes ever clearer to me that an international opposition movement, fully implemented across both governments and private sector is what’s needed.
Apple has adopted strong default encryption for its iPhones and iPads, and Google followed suit for its Android products and Chromebooks. Perhaps the most important private-sector change occurred when businesses throughout the world set about switching their website platforms, replacing HTTP (Hypertext Transfer Protocol) with the encrypted HTTPS (the S signifies security), which helps prevent third-party interception of Web traffic. 2016 was the first year since the invention of the internet that more Web traffic was encrypted than unencrypted.
The internet is certainly more secure now than it was in 2013, especially given the sudden global recognition of the need for encrypted tools and apps. I’ve been involved with the design and creation of a few of these myself, through my work heading the Freedom of the Press Foundation, a nonprofit organization dedicated to protecting and empowering public-interest journalism in the new millennium. A major goal of the organization is to preserve and strengthen First and Fourth Amendment rights through the development of encryption technologies.
In my current situation, I’m constantly reminded of the fact that the law is country specific, whereas technology is not. Every nation has its own legal code but the same computer code. Technology crosses borders and carries almost every passport. As the years go by, it has become increasingly apparent to me that changing surveillance practices and laws in the US won’t necessarily help a journalist in Russia, but an encrypted smartphone might.
Internationally, the disclosures helped to revive debates about surveillance. For the first time since the end of World War II, liberal democratic governments throughout the world were discussing privacy as the natural, inborn right of every man, woman, and child. The European Union became the first transnational body to establish a new directive that seeks to standardize whistleblower protections across its member states, along with a standardized legal framework for privacy protection. In 2016, the European Parliament passed the General Data Protection Regulation (GDPR).
The GDPR treats the citizens of the European Union, whom it calls “natural persons,” as also being “data subjects”—that is, people who generate personally identifiable data. In the US, data is usually regarded as the property of whoever collects it.
Today, no matter who you are, or where you are physically, you are also elsewhere. Our data wanders far and wide. Our data wanders endlessly.
We start generating this data before we are born, when technologies detect us in utero, and our data will continue to proliferate even after we die. Of course, our consciously created memories, the records that we choose to keep, comprise just a sliver of the information that has been wrung out of our lives—most of it unconsciously, or without our consent—by business and government surveillance. We are the first people in the history of the planet for whom this is true, the first people to be burdened with data immortality. This is why we have a special duty. We must ensure that these records of our pasts can’t be turned against us, or turned against our future children.
Today, a generation that wasn’t yet born when 9/11 took place, those whose entire lives have been spent under the omnipresent specter of this surveillance, is championing privacy. Their political creativity and technological ingenuity give me hope. You, the readers of this book, give me hope.
If we don’t reclaim our data now, future generations might not be able to do so. Then they, and their children, will be trapped, too.
Who among us can predict the future? Who would dare to? The answer to the first question is no one, really, and the answer to the second is everyone, especially every government and business on the planet. This is what that data of ours is used for. Algorithms analyze it for patterns of established behavior. A website that tells you that because you liked this book you might also like books by author A or author B isn’t offering an educated guess as much as a tool of subtle pressure and influence.
We can’t allow ourselves to be used in this way. We can’t permit our data to be used against us. We can’t let the godlike surveillance we’re under be used to “predict” our criminal activity. And as for our genetic information, our most intimate data: If we allow it to be used to identify us, then it will be used to victimize us, even to modify us.
Of course, all of the above has already happened.
Exile: When people ask me what my life is like now, I tend to answer that it’s a lot like theirs in that I spend a lot of time in front of the computer—reading, writing, interacting. From what the press likes to describe as an “undisclosed location”—which is really just whatever two-bedroom apartment in Moscow I happen to be renting—I beam myself onto stages around the world, speaking about the protection of civil liberties in the digital age to audiences of students, scholars, lawmakers, and technologists.
Some days I take virtual meetings. Other days I just pick up some Burger King. One fixture of my existence is my daily check-in with my American lawyer, confidant, and all-around consigliere Ben Wizner at the ACLU, who has been my guide to the world as it is and puts up with my musings about the world as it should be.
That’s my life. It got significantly brighter during the freezing winter of 2014, when Lindsay came to visit—the first time I’d seen her since Hawaii.
From the moment she arrived, my world was hers. Previously, I’d been content to hang around indoors—indeed, that was my preference—but Lindsay was insistent: She’d never been to Russia, and now we were going to be tourists together.
My Russian lawyer, Anatoly Kucherena, who helped me get asylum in the country, arranged two box seats at the Bolshoi Theatre. Lindsay and I got dressed and went, though I have to admit I was wary. There were so many people, all packed so tightly into a hall. Lindsay could sense my growing unease. As the lights dimmed and the curtain rose, she leaned over, nudged me in the ribs, and whispered, “None of these people are here for you. They’re here for this.”
Lindsay and I also spent time at some of Moscow’s museums. At the Tretyakov Gallery, a young tourist, a teenage girl, suddenly stepped between us. This wasn’t the first time I’d been recognized in public, but given Lindsay’s presence, it certainly threatened to be the most headline worthy. In German-accented English, the girl asked whether she could take a selfie with us. I’m not sure what explains my reaction, but without hesitation, for once, I agreed. Lindsay smiled as the girl posed between us and took a photo. Then, after a few sweet words of support, she departed.