Mass surveillance has been growing in our post-9/11 world and taking on breathtaking proportions not even George Orwell could have imagined. One of the most notable examples has been the U.S. National Security Agency’s spying on civilians as well as world leaders. But just when you thought companies and governments couldn’t possibly collect even more private data, nations across the world have been using the coronavirus pandemic to further expand their spying powers. While for years the West has hypocritically criticized China for the country’s use of technology to control citizens, it is now openly looking to the Chinese technological response to the coronavirus as a model.
President Trump’s framing of the coronavirus as the “invisible enemy” we’re “battling” recalls the omnipresent enemy in Orwell’s “1984,” and presents authoritarian and wannabe-authoritarian governments like Trump’s with the perfect excuse for expanding the surveillance state. On this week’s installment of “Scheer Intelligence,” host Robert Scheer speaks with the Electronic Frontier Foundation’s Adam Schwartz. The civil rights lawyer, who spent two decades at the ACLU, explains why Americans should be incredibly alarmed at how the pandemic could be used to chip away at whatever is left of their civil liberties under the excuse of contact-tracing.
“You’ve raised some cautions about the blank check we’re giving every government in the world to engage and increase surveillance, to track down people on the contact list, and so forth,” Scheer tells Schwartz, “But what I don’t understand is the basic justification of keeping this all secret rather than transparent. Because we don’t have an enemy, this ‘invisible enemy’ that Donald Trump talks about, that cares to translate, to read, to break codes.”
“Obviously, governments around the world are grappling with how to contain the coronavirus, and many of them are demanding new forms of surveillance,” responds the EFF staff attorney. “The governments of the world ought to be telling us what they want to do, and why and how, so that we can have a public conversation about these things rather than individual executive officers unleashing these new surveillance programs.”
As our lives move almost entirely online in light of the pandemic, we all need to be as vigilant as ever about how our data will be used without letting fear of the deadly virus overtake our cautiousness. In order to have a productive conversation surrounding the expansion of surveillance powers, Schwartz outlines questions people should be asking their governments.
“The public [needs to ask] three questions,” the civil rights lawyer explains, “Number one: has the government shown that the surveillance power they want would actually be effective?[…]If it would be effective, we ask a second question, which is: Is it simply too intrusive on our precious freedoms? [Lastly,] if a technology would possibly be helpful, and is not so far invasive of our freedoms that we oppose it per se, we want safeguards.”
Problematically, Scheer suggests, it is impossible to have these conversations without knowledge of their innerworkings, and, more importantly, if people do not protest these new invasions of privacy. While Schwartz believes that resistance against this type of overreach exists and will prevail, the “Scheer Intelligence” host points out just how much people are willing to give up in times of crisis.
“I wonder whether you’re underestimating the acceptance by the general public of this kind of surveillance,” Scheer tells Schwartz, “which has suddenly become a good word—a way of being healthier—you’re being surveilled—rather than an intrusive, intimidating word—you’re being watched by people who maybe don’t have your best interests at heart.
“To even suggest that now would be to suggest that you’re kind of off-kilter and paranoid,” he goes on. “Obviously, we need as much information as we can have. And the idea that any government in the world might misuse that information is sort of put up on the shelf; that’s for later.”
Given how long the U.S. government has used the powers it obtained as the country grappled with the 2001 terrorist attacks, there is ample cause for concern that whatever begins in the coronavirus period will not end once the virus is under control. It should also be particularly disconcerting, as Shwartz indicates, to activists given the extensive history the U.S. has of spying on people involved in various movements.
In the media player above, listen to the full conversation between Schwartz and Scheer as the two discuss in detail the different forms surveillance is taking in countries such as Israel and China, foreshadowing what might come to pass in the U.S. You can also read the transcript of this episode below the credits.
RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case, it’s a very well-known attorney in civil liberties circles, Adam Schwartz. He worked for 20 years for the ACLU; he’s with been with the Electronic Frontier Foundation for the last five years. That’s the organization I most respect for caring about our privacy and our individual freedoms and the internet. And he’s written a whole series of articles, or comments, in response to the pandemic, surveillance during the pandemic crisis that we’re in.
And it’s interesting, I once wrote a book in which I talked a lot about the Electronic Frontier Foundation, and warned that the surveillance state would become the new norm. It obviously is used very aggressively in authoritarian, totalitarian societies, but it would become the norm in our own. But little did I expect that the word surveillance would actually now be seen as health-serving. You have it at the White House press conferences, and medical professionals talk about, you know, by distancing and by surveillance we are going to have a much greater level of security. And it’s always the argument for security that we have to surveil the population, but people pushed back and said, wait a minute, is the cure worse than the disease?
But here, let me begin by saying you’ve raised some cautions about the blank check we’re giving every government in the world to engage and increase surveillance, to track down people on the contact list, and so forth. But what I don’t understand is the basic justification of keeping this all secret rather than transparent. Because we don’t have an enemy, this “invisible enemy” that Donald Trump talks about, that cares to translate, to read, to break codes. And so I wonder why there is any–there may be a discussion about how much we have to do, but why is there any discussion about making it transparent? What information is being collected, how is it being used, what are the restraints to protect privacy? So can we begin with just that question?
AS: Sure. Obviously, governments around the world are grappling with how to contain the coronavirus, and many of them are demanding new forms of surveillance. And some of them are just doing the surveillance without being transparent with the public. Of course, we at the Electronic Frontier Foundation, as skeptics of government exercising new powers, especially surveillance powers, strongly oppose doing any of these things in the dark. There is all too much information that we’re only learning about in dribs and drabs through leaks and otherwise. But just a first principle is the governments of the world ought to be telling us what they want to do, and why and how, so that we can have a public conversation about these things rather than, you know, individual executive officers unleashing these new surveillance programs.
RS: Yeah, but you’ve mentioned–well, the Electronic Frontier Foundation [published] a list of very sensible concerns: Will these surveillance techniques be open-ended, how far will they–we’re talking about tapping our emails, our phone conversations, monitoring our location in every which way. And the question you’re raising is to what degree will this be known to us? What are the restraints? And what is odd in this moment is we seem to be following–with admiration–the example of China, which has an intrusive, extensive system of surveillance. And we know in some sense it’s been effective in controlling the spread of this virus within China. But it’s very odd that we’re not asking basic questions about, what are the limits on collecting this? What are you looking for? What are the restraints? When will it end? Will it become permanent? Is that really the discussion that we’re not having that we should be having?
AS: I think the conversation that we should be having is that, you know, one by one, each country that wants to use a new surveillance tool, they publicly announce it and explain what they want to do. And then the public asks three questions: number one, has the government shown that the surveillance power they want would actually be effective? And so for example, we think that many are not, such as the use of cell phone location data to identify whether two people were close enough together to transmit the virus. And it would not be effective, because the phone location data simply is not granular enough, although it is powerful enough to, you know, generally show whether you were at a union meeting, which is a menacing power.
If it would be effective, we ask a second question, which is: Is it simply too intrusive on our precious freedoms? And so we oppose the use of face surveillance to identify people moving about who maybe should not be because they are infected. We simply think that face surveillance by the government is an intolerable burden on our privacy, and we oppose it, period. If a technology would possibly be helpful, and is not so far invasive of our freedoms that we oppose it per se, we want safeguards. So for example, we think that the aggregate use of phone location data to see where groups of people are moving could be OK, if there are enough safeguards. And the kinds of safeguards we want to see are that people are consenting, they’re not being coerced to use it. That there is minimization of the data that’s being collected and used and shared, that the system is dismantled as soon as the crisis is over. That there is transparency, that there is no discrimination, things like that.
RS: But things like that, which go to the heart of individual freedom, we know are easily sacrificed and accepted by populations, regardless of their political system, as necessary for their security. And what has happened in this treatment of a medical pandemic, military terminology has come to be accepted as the norm. As the president tells us, we have a war against an “invisible enemy.” He neglects to point out that the enemy cannot decipher, is not cognizant of information, that the enemy–there’s no reason to keep what we’re doing secret from the virus, because the virus is not overhearing us.
But we have a weird transformation in our perception that somehow the word surveillance— which I think prior to this pandemic one would have thought of associated with totalitarian power, with the dystopian 1984 image of the all-knowing state, and we would be generally offended by it. And somehow, we’ve been willing to sacrifice those concerns as kind of an indulgence, faced with a medical crisis in which secrecy, in terms of what the government is doing and how it’s monitoring, should not even be an issue. Because certainly the virus, this enemy, would not learn anything, would not change its maneuvers, would not have a different battlefield strategy because of the government revealing what it’s finding out, how it’s using that information. So the whole argument–and this is what I took from your published comments–is skewed in a bizarre way. Why shouldn’t the government be totally transparent about how, what information it’s collecting and how it’s using it?
AS: I think that, you know, history shows that in times of panic and crisis, governments seize more power, and members of the public who are afraid of the crisis tend to, you know, let the government have those powers. And our, I think, most important message from EFF to the public is that once these powers are seized in the crisis, when the crisis ends, the powers stick around. So for example, within months of the 9/11 attacks, the NSA began conducting dragnet surveillance of the internet. And almost 20 years later, they are still doing that. And we think that unchecked, the kinds of surveillance that are being proposed today would invade privacy, deter people from engaging in free speech, disparately burden vulnerable groups, put us one hack or breach away from a lot of sensitive information being available to foreign governments or identity thieves.
And so it’s just so important that the government explain its plans, and that we ask these three questions: Is it effective, is it too invasive, and are there safeguards? We think it’s not helpful to use the language of militarization, to call this a war. What it is is a public health crisis, and we’ve had these for centuries, and there are approaches to them that involve the medical establishment, supplemented by other government agencies. But it is not literally a war, because–and that’s not just rhetoric. Once we’re talking about war, it does frighten people into surrendering their liberties.
RS: Well, let’s push that a little further. Because we’re now–it’s just sort of depressing that people regard individual freedom as basically a luxury that is afforded to us in the safest and most nonthreatening of times. Where it seems to me the argument for individual freedom in our Constitution is that you have to preserve these checks on government power to make sure they’re doing the right thing, and that they’re not violating our freedom. And in a health crisis, those are real questions. Is it better to be locked up or isolated? Are we doing everything we should be doing to do testing? Is the testing efficient? Is the government being wasteful of funding? Are they–all the questions you are raising. Are they intruding on our freedom in an unnecessary way? And as you point out, you know, the war analogy is really a way of getting people to surrender those concerns. And I’m basically wondering, why isn’t there more pushback from the media, from the general population, about just following these instructions? Is it just fear?
AS: Well, I think there is some pushback. You know, what little polling has been done. There was one from the morning consult several weeks ago, and there’s a new one from Pew about a week ago. It does indicate some skepticism by members of the public towards government seizure of new surveillance powers during the COVID era. And you know, at least as to the United States, some of the more extreme ideas that are–or actually, the extreme programs that are taking place around the world, are not turning up here. So you know, Israel, phone companies handed over all their location data to the state for purposes of doing contact tracing. The idea of doing location data for contact tracing really has not caught on in the United States. You know, China forcing people to download applications onto their phone for purposes of surveillance. There are people in the United States who are supporting that. So Stewart Baker, former general counsel of the NSA, has repeatedly been exhorting the government in the United States to force people to download contact tracing apps. Fortunately the gravity, at least in the United States, has not been towards doing those things. An idea that has been catching on, which has a lot of threat but possibly could be done in an accessible manner–and we haven’t talked about it yet–is proximity tracking that doesn’t look to location, but does look to simply whether two people’s phones were close together based on a signal strength from a Bluetooth signal.
RS: Well, tell us more about that, because you know, again, people are so frightened. After all, the assumption in Orwell’s 1984 is that if you had a frightening enough enemy–even if it was one you invented, or one where you take a health crisis and call it a military war against an enemy–you then can get people to go along with the total sacrifice of their freedom. It’s just such an intimidating argument. And so take us through some of these things that are already happening. And it’s interesting you mention Israel, because they seem to be happening around the world, irrespective of what the claimed values of a system are. There, you know, in Israel, you have a leader who is threatened with criminal prosecution. And yet he’s now using this epidemic as a way of bringing in the security agencies, Mossad and Shin Bet, in a very aggressive way. But it happens in, again, a totally different system in China, as almost a norm. Everyone has a cell phone, they have to show where they’ve been. So let’s talk about these invasive techniques of surveillance and questions that should be raised about their necessity and their danger.
AS: Yeah, definitely anything that people are being forced to use, we’re just dead set against that. We’re dead set against the use of surveillance cameras, against the use of location tracking, both because it’s an invasion of privacy and because it’s simply not sufficiently accurate to show whether two people could have transmitted the disease to each other. An idea that has a lot of momentum right now is not location tracking–you know, where were two people–but rather, proximity tracking; simply, were two people near each other, without regard to where they were.
And so what this proposal does–and the first country to do it is Singapore, in a program called TraceTogether, which has flaws, but kind of its inner core has been catching some momentum. Which is, two people voluntarily download the app, and then if their phones are close together as measured by signal strength, they exchange tokens. And those tokens are essentially random long numbers that change with regularity. And so the only thing you know is that you’ve got a bunch of tokens with numbers that mean nothing. And then if a public health official concludes that you are ill, because you failed a–or, you know, you took a test and it said you were ill–they upload your own phone’s token numbers to a central database. And everyone else has the app; the app is regularly calling the central system and asking for numbers. And then it gets the numbers of the ill person’s tokens and compares it to all the tokens that they collected. And if they have a match, then the system says you might be ill, call the doctor and get a test, and self-quarantine until you get the test.
So this system obviously has menace. Even if there’s no location in play, it does potentially have the power to show that, you know, if it was done wrong, that two people were proximate. Which could be a union organizer and the people in the shop. It could be a doctor and who he’s seeing in the hospital. It could be, you know, all kinds of sensitive things. But if it was part of a larger public health program of testing and manual contact tracing, a system like this, of digital contact tracing, could possibly be a secondary, helpful program. But it would have to be surrounded by privacy safeguards–that it’s voluntary, that it’s not tracking location, that the code, setting up these systems is open source, et cetera, et cetera. So anyhow, that’s the system of Bluetooth-based proximity tracking apps.
RS: But you know, to bring it down to the level of ordinary life, the new normal, it looks like this pandemic is going to be reoccurring. Something you have to be consistently on the alarm, on the watch for its reoccurrence and so forth. And it seems if we take the Chinese example, which has been one of the most effective in the world in tracking and curtailing, and restricting it mostly to one province, and keeping the death rate down and so forth–you know, it comes at a heavy price. Every person in China is expected to have some kind of cell phone, which will then let them get on a train, will let them go to work. And there’s a massive amount of information, probably increasing all the time, that is required to be on that phone. It’s not voluntary. It’s not transparent. And what is interesting about this moment, indeed alarming, is that that is rapidly becoming the model–because on some level, it seems to work. And there are very few questions now, as opposed to a year ago, being raised about this level of intrusion into how we live our daily lives.
AS: I think–
RS: And I wonder whether you’re not being a bit–I wouldn’t say naive, but maybe underestimating the acceptance by the general public of this kind of surveillance. Which, I would point out again, has suddenly become a good word–a way of being healthier, you’re being surveilled, rather than an intrusive, intimidating word, you’re being watched by people who maybe don’t have your best interests at heart. To even suggest that now would be to suggest that you’re kind of off-kilter and paranoid. Obviously, we need as much information as we can have. And the idea that any government in the world might misuse that information is sort of put up on the shelf; that’s for later.
AS: There’s two points I’d like to make. One is a small one, which is the nature of the word surveillance. And as we use it, it is the government spying on the public, and it’s a very menacing thing. There is kind of a word game going on, which is that for whatever reason, sometimes in the public health community, data systems for tracking disease that are in the aggregate sometimes are referred to as surveillance of the disease, as opposed to of people. And you know, public health professionals should do whatever they want. The problem comes when government officials play a slippery word game where they pretend they’re engaging in the one form of surveillance, but really it’s just the same thing we’ve seen over and over again. And so the government just needs to be, as always, clear about what they’re doing.
The second point I want to make is that there’s a false narrative that has emerged about what is happening in Pacific Rim countries, and what the rest of the world should learn from them. So you know, China has done what it has done, which we’ve discussed. Singapore has used, I would say, a system of proximity tracking that is not privacy protective. South Korea, Hong Kong, other countries in that neighborhood have likewise used forms of surveillance that to the EFF would be intolerable. And the narrative emerged that, well, these countries did these things, and these countries flattened the curve, so therefore these surveillance tools must be good. And, you know, our response is that that is not logical. You know, number one, many of those countries are having resurgences right now of COVID. It’s not as though they, you know, cured the problem. And also, many of those countries were doing things that we have not been doing here, such as having lots of testing, as in the case of South Korea, whereas we’re not doing it here.
And so really, it comes to an objective analysis of what is potentially effective, and it’s really on the government to prove it would be effective, and many of the tools they have completely failed in that test. All that said, it is possible that a narrowly focused proximity-tracking app could be a part of the mix of solutions to the problem–provided that it’s voluntary, provided that the system is engineered so that anyone who succeeds at hacking it’s just going to have a bunch of meaningless numbers.
RS: You say in your statement:
“Even in the midst of a crisis, the public must carefully evaluate such government demands, because surveillance invades privacy, deters free speech, and unfairly burdens vulnerable groups. It also metastasizes behind closed doors. And new surveillance powers tend to stick around. For example, nearly two decades after the 9/11 attacks, the NSA is still conducting dragnet Internet surveillance.”
What you wrote there seems to me to suggest that the government has been given a blank check. And that, you know, before at least they had the threat of a terrorist enemy they could expand on or exaggerate. But now, the part of this whole discussion I’m not getting is, why wouldn’t there be total transparency, since our enemy is not overhearing us and can’t then develop counter strategies? The enemy is a mindless, expressionless virus. And so I don’t understand why there shouldn’t be total transparency and fullest debate about any extension of the surveillance society.
AS: I think that any form of surveillance by the government to address COVID that fails to be transparently presented to the public, so that there can be a debate about it, is per se wrong and ought to be opposed. In the absence of transparency, it’s illegitimate, and we shouldn’t be doing it. We know that government surveillance often has been created behind closed doors. So in the national security context, we went years before the public had any knowledge at all about the NSA internet surveillance program. And every five years since then there have been new, massive revelations about it. So it’s the opposite of what we should have. In the context of law enforcement, police were using cell-site simulators, often called stingrays, for many years before the public had any inkling of them. They were tools developed on foreign battlefields to fight, you know, military enemies that migrated into American cities, and were being used for years without the public’s knowledge. In the context of medicine, we have a history of human subject research, things like Tuskegee, that were done without consent and in secret, that led to the common rule about human subject research that has been used for decades. So any form of surveillance, you know, there’s a long and dark history of developing it in secret, and it going wildly off the rails and being very abusive of human rights. Which is why in the context of COVID, we firmly say: In the absence of transparency and openness, the surveillance is per se and always illegitimate.
RS: But, OK, but what I’m trying to address here is that, at first we thought, OK, this is a severe flu season, or it’s something that we’ll get the right vaccine, we’ll get the procedure, and it’ll be gone. But as you point out in your articles, the COVID-19 public health crisis has no precedent in living memory, OK. But government demands for new high-tech surveillance powers are all too familiar.
And what I’m suggesting is that the use of this very legitimate, really frightening health scare–I don’t know about you, but I have been locked into my living quarters here for six weeks now, going on seven weeks, and I try to do teaching and everything from it. But the fact of the matter is, there is now the condition with this “invisible enemy” of any government in the world rather easily justifying to its population, at least that people will accept, that we have to enter a new way of being. And the idea of limited government power, of the Bill of Rights, of the Fourth Amendment saying no searches and seizures that do not have a specific warrant, et cetera, et cetera–aren’t you afraid that much of the public will come to accept this as the new normal, and that arguments about individual freedom will fall on deaf ears? And suddenly, this dystopian novel, Orwell’s 1984, now looks like a blueprint for the future.
To an organization like EFF, and to a lawyer like yourself who has spent, what, almost three decades fighting for individual freedom, are you not concerned that the basic lesson for individual freedom and the basic concerns about government overreach have suddenly, in a matter of months, been eroded, the safeguards have been eroded?
AS: I think all around the world, there are governments that have seized new powers and have said it’s about protecting [from] COVID, but really it’s the excuse to simply tighten the vice that much more on the liberties of the people in the country. And we are concerned that that could happen anywhere, including in the United States. We’ve seen it in the past, where right after 9/11 comes the Patriot Act, which is just a wish list that the national security and law enforcement state has always wanted. And they just, you know, dusted it off from the shelf where it had been rejected last time, and that was the Patriot Act. And so we are very, very concerned.
That said, we are also optimists. You know, we are an organization with 30,000 members, and we work in alliance with other organizations that have hundreds of thousands, millions of members. And I think there is a critical mass of people in the United States, and in many countries in the world, who understand what is happening here. Which is, this disease is ravaging us, and everybody needs to make some sacrifices, such as social distancing. And a lot of ideas are pouring out about surveillance, and some of them are just ridiculous on their face. Some of them require some examination. But I do think there is a critical mass of people who are going to, and are, standing up and saying no to a lot of these really bad surveillance ideas.
RS: I want to conclude this by kind of giving an editorial for your organization, the Electronic Frontier Foundation. By the way, we can get all of the supporting material on what you’ve been talking about by going to EFF.org, is that correct?
AS: That is correct.
RS: Yeah. And it’s a really, very good detailed discussion of these issues by Adam Schwartz and others at this organization, which–the reason I want to tout your work is because I think it’s largely a thankless task at this moment. I mean, I’ll put myself in the group that should be thanking you more, but you know, I’m scared too. I’m scared to walk out the door. I’m of the old age, vulnerable group and so forth. And so I think we have to confront this idea that our health security is in the category of military security. That the enemy here is the traditional military enemy. And that by departing from the health model–and obviously health problems can kill you, and they can kill you sometimes in larger numbers than military engagement, or terrorism of a military kind. But the key argument remains the same. Does freedom make you stronger? Does debate of government decisions make those decisions wiser? And is, in fact, democracy and free expression not an indulgence but rather a necessity to good outcomes?
And so I want to take the current debate about the pandemic. You have fake news, you have wild theories, you have people risking their lives going to demonstrations to liberate their state because they feel that being enclosed is wrong. And if we don’t have honest, open discussion–about the risks, about the strategies, about the failures of government or private sector of different nations–you’re in this area of hysteria, fake news, and propaganda. And as people feel suffocated by the experience, as they remain alarmed, they then go for demagogic solutions, like baiting Asians, for example, or attacking them, or it’s all the responsibility of another government. And it seems to me the argument for preserving individual freedom, free expression, freedom of the press, even when the president doesn’t like it, is not that such freedom weakens us in the fight against an illness, but it strengthens us. And yet it’s disappointing that so few people seem willing to make that argument.
AS: Yeah, absolutely. Our freedom is our strength. Any program of containing COVID will only be effective if there is trust between public health officials and the general public. If the public health response is one of surveilling the public, it will be alienating, there will not be buy-in. Just for example, if there is coercion to put proximity tracking apps on people’s phones, they’ll leave their phones at home, or they will turn off the connectivity of their phones. You know, people will resist. And that’s what history has shown when there are mistakes made in how the government rolls out public health programs. If it’s done with too heavy a hand, it doesn’t work, because people don’t cooperate.
We’re in this kind of remarkable moment where hundreds of millions of people in the United States, billions in the world, have with very little exception cooperated with government instructions to stay home. And what has happened is a remarkable amount of trust in the government’s suggestions for what to do based on science that has been explained. And once the government garbles the message by setting up this alienating surveillance program, all of the public health efforts are diminished and less effective.
RS: Well, I think that’s a good point. And it’s sad that one has to make the point that free expression leads to free debate leads to better, more accurate, more truthful solutions. But every time you have a risk–and as you point out, this crisis is one of the biggest in a century; we are at a loss to what to expect and how to deal with it. But you know, it’s important to keep a book like 1984, Orwell’s 1984, in mind. That you only make things worse when you sacrifice free expression. For keeping that idea alive, I want to thank Adam Schwartz and the Electronic Frontier Foundation, where he is a senior attorney for fighting the good fight to keep our rights to have freedom. I want to thank Christopher Ho, our producer at KCRW for getting this up. I want to thank Natasha Hakimi Zapata for editing these podcasts. And of course, Joshua Scheer, who finds the guests, runs the program, and is really in charge as the producer of Scheer Intelligence. That’s it. See you next week with another edition of Scheer Intelligence.