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Lessig Snowden Interview Transcript
Full transcript of the interview which can be found here:
Punctuation and typos are my own, licensed CC0
Lessig: Okay so welcome to a very different kind of Edmond J. Safra Lab Lecture. It's not a lecture it's an interview, and it's not an interview with a person here, it's a person who is many miles from here, although the precise location will not be known. It's an interview with Edward Snowden. Many times people say this is a person who needs no introduction, this person needs no introduction and he will have no direct introduction. There will be a lot of information about him that will come out through a series of questions that I'll be asking him and he'll be answering. We've taken the liberty of asking you to submit questions. I've spent more time than my family thinks I should have trying to integrate those questions into my own set of questions and what we'll do is be conducting the interview via Google hangout for about the next hour at least. I ask you to silence your phones, this is obviously being recorded and broadcast and with no further ado what we'll do is hope the technology brings Edward Snowden to the screen. Here he is Edward Snowden. [Applause]
Snowden: Hello everybody. Thank you very much for the invitation. I haven't prepared any remarks but I think we're going to cover a lot of very critical issues and difficult questions that don't really have a proper answer, so if there's anything that you'd like to ask professor I'd invite you to begin.
Lessig: Great, thank you, and lets just start a little bit from the personal. Obviously this room and people online are going to be filled with people who know everything there is to know about you and what I've often been struck by is the number of people who have no clear sense who you are and what your values were as you came to work with the NSA and as you came to do the work you did by exposing the NSA. So I wondered if you'd just give us a sens of your own personal background, of your own ideological background as it might relate to this.
Snowden: I come from a government family. My grandfather was in the military, my father was in the military, my mother still works for the government, my sister works for the government, and I worked for the government. I was a staff officer for the Central Intelligence Agency. I had signed up to join the US military in the wake of the September eleventh attacks, I had just signed up for the invasion of Iraq because I had believed that fundamentally our government had noble intent, and it did good things, and it did them for the right reasons. What I was not aware and I've grown to become a little more sophisticated in this, while the people in government largely are just that, they're good people trying to do good things for the right reasons. There's a culture that sort of pervades the upper levels of government, the senior officials, political appointees, that have basically become less accountable to the public that they serve. And because of that we see that politics and policies irrevocably sort of irresistibly, they gravitate towards the prerogatives of individuals, of these officials, of an elected and unelected class of bureaucrats that can sort of degrade the quality of government that we as individuals enjoy. So as I went through my time in the classified world as the intelligence community would call it, and I went from the Central Intelligence Agency to the National Security Agency, I worked on a number of public sides and the private sides as a contractor working for private companies, but at a government desk in government facilities using government equipment and working on government programs and taking tasks from government employees, I gained an increasingly concerning understanding of what happens on the broad scale. What the results of all these individual decisions are. And that's generally that when decisions are made in the dark, the quality of those decisions is reduced. Now that's not to say that we need to know every decision that the government makes, y'know who's under investigation what this particular program does. But we do have to have a general understanding of the policies and the powers broadly that a government claims if it's going to be using them in our name, as well as be using them against us. Ultimately toward the end of my tenure at the NSA I discovered that there were programs of mass surveillance, that were happening beyond any possible statutory authority because these things were constitutional prohibited(?). And I saw that there were, these were things that never should have happened, they were initially authorized in the Bush administration and that administration was fully aware, in their own classified opinions and in the inspector generals report that those programs had no statutory basis. And so we saw developments where they were trying to authorize these under the President's powers, y'know these article 2 powers where basically the president says “we're at war I can do basically whatever I want.” Now that may sound like a great idea and be an important power in times of total war in times of existential threat, but we don't have U-boats in the harbor, and we don't have y'know foreign armies marching on American soil. We haven't seen Total War policies in the United States since World War 2. So we have to ask 'why were these decisions being made?' 'Why was the public not allowed to participate in the debate?' 'Why is it that even within the separate branches of government officials were not aware of this?' Within the Executive branch y'know in the intelligence community many of my co-workers who also had Top Secret clearances, high level accesses, were unaware that these things were going on. The vast majority of Congress had no idea that these programs had been instituted or were being maintained. Even those on the on the Intelligence community, uh, Intelligence Committees in both the Senate and the House were not fully briefed, only the Gang of Eight, that'd be the chairs, the ranking members and then the majority and minority leadership of both houses are briefed on so-called Covert Action Programs and things like that that are the exceptionally compartmented programs. And the courts had increasingly in the wake of the post 9/11 period had become reluctant to scrutinize decisions or programs that were constitutionally questionable, saying that they lack the expertise or the positioning or uh, what it ultimately boiled down to was the political willingness to confront difficult questions to which there may or may not be rights answers, ones that are right or wrong. So this lead me to stand up and say something about it, and I worked with American journalists and American news outlets to make sure that the public had an ability to make decisions about where the lines in this program should be drawn. Many people are familiar with the story since then, it's still ongoing, reporting continues, but the ultimate basises are that many people consider the last years surveillance and unconstitutional activity of the NSA and so on and so forth, to be ultimately about surveillance and mass surveillance, and that is a critical issue and that is the one with which I am most familiar, and I saw the greatest wrongdoing. However it's important to be aware that the reality that the mass surveillance illustrates is that we have agencies that are working on their own authorities that are working on their own sort of institutional momentum to implement programs without oversight, creating these things behind closed doors without the awareness of the public, that are actually changing the boundaries of the rights that we enjoy as free people and a free society. We have lost in many ways the freedom to associate without judgement of the United States because of the metadata that's really an associational tracking program. When we have everyone's call records we have know who everyone's friends are, we know who they contact, we know what they do, we know when they travel, we know where they go, we know how long they're there. There are speech implications to this, there are obviously privacy implications to this, and there is a very strong argument to be made that even if we as a society believe that these powers and authorities would be valuable that we could not institute them through statute regardless, that they simply would be unconstitutional in any form absent an amendment. And we see this happening and being upheald even through international policy decisions very recently, two or three days ago, the United Nations special raparetor(?) on countering terrorism and protecting human rights delivered a report that had beein in the works for I believe several years that found that mass surveillance violate the obligations of states, that the United States and the united Kingdom and many other of our other allies have agreed to under the international covenant on civil and political rights, the ICCBR, as well as, and this wasn't mentioned specifically, but the very same right that he was highlighting in his report was an obligation that we'd agreed to under the universal deceleration of human rights, y'know some fifty odd years back, and that's article twelve, that's that we all have a right to privacy, to be free from unjustified unreasonable intrusions into our lives. And we had this of course under our fourth amendment. So when it came to my story and how I came forward it was not that I saw a particular program and I had an axe to grind. It was broadly that I was witness to massive violations to our constitution, that they were happening in secret and that they were happening as a result of a broad breakdown throughout the branches of government. And this is the key, because when there's a problem in a single agency, when there's a problem in a single branch we tend to be self correcting, that's what checks and balances are for. But the question of whistleblowing, of when to stand up, is really one of 'Do those checks and balances still function?' 'Can you report these issues within a system to a certain branch to a certain organization to a certain office, and actually see those abuses and those policies corrected?' And in this case they were not, we saw that both the courts and Congress and the Executive had all failed in different portions of these programs and protecting our rights. And I think we'll cover that in a little more detail later, but did that answer your question?
Lessig: Yeah, so what striking about the position you've described, both here and also in the interviews that you given is how relatively limited it is for it's justification of stepping forth with this kind of civil disobedience, I mean in particular you've said that the problem you had with what in fact happened is primarily a problem of democratic accountability, you said quote “It's not my role to make that choice” the choice of whether the NSA engages in those activities or not instead it's for the American people quote “I don't intend to destroy those systems but to allow the public to decide whether they should go on.” So the key that you're emphasizing is that we had a process, we had a system of government that wasn't allowing the public to even know about the issues that the NSA was engaging in, and that's the primary justification you have for stepping forward and obviously violating the law in order to make it public.
Snowden: Right obviously it comes down to a question of, y'know, people argue about what is a whistleblower. I tried to raise my concerns internally, they got nowhere. Other individuals who had done the same thing, whether they're Thomas Drake, Bill Binney, Kirk Weavey(?), Ed Loomis, Diane Roark, who even went to Congress. All of these individuals raised similar concerns and yet the issues were not corrected, were not addressed, and that's again because of the over classification issues that they'd described and the way that these processes had inevitably become more cumbersome and less effective over time to the point where they're essentially broken. I think the ultimate mark of a whistleblower is when it comes to motivations. Are they standing up to change something directly to sort of have a partisan effect, sort of the DeepThroat thing where they get their boss fired so they can move into the next job, that's not whistleblowing under anyone's definition. But really it comes down to when I stepped up it was not to dictate outcomes, and I think that's ultimately the mark here, it's about allowing the public a chance to participate in democratic processes, in order to play their part in determining the outcome. The reality is that since we saw the birth of this sort of Unitarian Executive theory in the White House throughout American governance, the government has, the public has lost their seat at the table of government. We are increasingly being left out of critical discussions about the policies and the direction that we want steer our society toward. They're being made in our name without our awareness and without our consent, but in a Democratic republic the government draws it's legitimacy from the consent of the people, and everybody who's involved in any kind of research knows that consent is not meaningful if it's not informed. And that's what was lacking, so when I think about the question of y'know how do you see, how do you find the line, the point of justification by which you can stand up both the press, and this is another key distinction – I didn't publish any of these materials, I never published a single story on the NSA myself because everyone has biases right? And even though I have an expert understanding of these programs, I've worked with them personally, the authorities they operate under, how they're used, again I had the ability to look at anybody's email that was being ingested under these programs, whether that was intercepted domestically or overseas I had the authority to look at both. But I didn't try to push my agenda on to the public because I don't think that would be proper, and I think that many other whistleblowers do the same thing, that's why we go to the press. The press is a critical part of American society, it's a part of our constitution, that's why we have it, the first amendment, and it's really not the role of an individual such as myself to say what the public should or should not know. But by working in partnership with the free press, we can allow institutions that exist to make these sorts of determinations to then sit down with government, present their evidence for why this is in the public interest, the government can make a counter case and say why this may cause some harm that they may have missed or misunderstood, or the value of these programs misinterpreted by the journalists. And ultimately we can get a decision from there, and there is a kind of accountability borne from that that's lacking when it's an individual that's making the decisions on their own.
Lessig: Okay, but in your decision to go to the press, there's a second important difference, you decided not to go to the New York Times directly, you went to Glenn Greenwald who is a very outspoken independent member of the press and you partnered, and you went to with Laura Portrais, who's amazing film is coming out this week. And you went to the Guardian, which is obviously not the American press.
Snowden: That's actually not correct, the Guardian has both a US branch and a UK branch, they're completely seperate corporate institutions. And I went to the US Guardian. Additionally it's important to remember that while Glenn and Laura are the most well known journalists, Barton Gellman, of the Washington post was actually involved, and that was because, y'know, I made a specific determination that it would be valuable to have sort of a DC institution, the heart of our government and their press really have a role to play in this. The reason that the New York times was not involved in the initial disclosures was because they have an institutional history of sitting on stories of massive public importance, simply because the government claimed that they would not be in pubic interest enough. Right on the eve of the 2004 elections, it was discovered and revealed by a reporter James Risen that the Bush administration had authorized, without Statutory authority the warrantless wiretapping of everyone in the country, and both based on the internet and the phones, all though I don't believe he had the internet metadata program known to him at that time. And the Times, I believe it was the executive editor at the time, I could be mistaken on that, decided to sit on the story. It was only the Times did eventually break the story more than a year later but that was only because the journalist who had worked on the story, James Risen, was now actually, they faced contempt of court charges, they were being prosecuted by the DOJ. That journalist intended to publish a book to get that information to the public regardless of the newspaper's position. And ultimately the newspaper had an incredible change of heart and said “Hey after all this is in the public interest, we should publish this,” and it became a massive scandal as we all recall. And the warrantless wiretapping program, as it existed then was ended as a result. So there is a real question I think, and the Times has stated that they've sort of changed their position, they've changed their thinking and their reasoning since then about taking government claims at face value, but there is a real question about had that story could come out when it was originally discovered which was right on the eve of an election, it was about the massive violation of the American constitution, would that have had not only a public impact, would that have had a political impact, and would we have incurred the same costs that we did in the second term of that administration had the public had a chance to take those programs in account, those decisions into account when they cast their vote.
Lessig: So part of that dynamic of the corruption of the political process in that particular case was a corruption of the news process where the news media is not giving the public the opportunity to reflect on the facts that should have mattered politically. In the case of the Guardian USA I mean what I'm trying to see whether this is something you were sensitive to. Guardian USA was quite proud of the fact that it was independent of the American government because it had no access to the American Government. As Gibson the editor put it “No one takes our calls anyway, so we literally have nothing to lose in terms of access,” Which gave them the freedom to be independent enough, to stand up and very aggressively insist that they were going to publish the Verizon story which was the first story which Glenn succeeded in getting published, in a time horizon which would have been unheard of in even the Washington Post. So once again you can think of what is it about the institutional structure of the American newspaper that differentiates them. And many people have commented competition in the British culture among newspapers is different, greater, even though they don't have a first amendment protection, and in the American context there's a club of a few, of these powerful papers that might make it less likely for them to be aggressive against the government. So was that a sense that you had when you begun to think about this or is that just something you discovered after?
Snowden: When I thought about how to structure the, to enable the journalism as best I could I had no experience with the media, y'know I'm not a journalist, I'm not an editor, I can't tell them how to run or not to run their newspapers. So I won't take a judgment on the work of this newspaper or that newspaper. But I will say when we look at it in terms of an institutional basis, the real challenge for the US media, and whether that's TV or whether that's print, is that it is very institutionalized, it's very hierarchical, and it's very rigid. And if only one institution, only the Washington Post had this story they would likely be, they would have a very difficult time in negotiating with the government to make sure that the public did get all of the information that it needed and not just the information that the government thought would be beneficial for them to know, which is what we see so regularly today with anonymous officials y'know who are basically leaking classified information, and classified programs on a regular basis, and yet they enjoy a kind of amnesty from the White House because the White House appreciates the service that they're doing for them politically. Now by allowing multiple journalistic institutions access to the same material you are enabling sort of marketplace economies, a contest, to go “All of these groups will be in regular contact with the United States government,” and this is true for the Guardian as well, the Guardian has, I know for a fact, I've spoken with Alan Russbridge at the Guardian, that they have had many many many many conversations with the United States government, and UK government and so on, about what information has no real public value but is truly harmful. And any information like that, y'know, it's natural that this be excised from publication. Because nobody wants to cause harm to individuals, nobody wants to harm security. But when the government draws these lines on it's own without any accountability, without any sort of court of reviews, they draw the lines in a way that is more politically motivated than publicly motivated. And that's a dangerous thing. Now, journalists, right or wrong, they typically see themselves as champions of the public, and because that they have a motivation, they have a self image, which directs them to try to safeguard the public interest, not just against their own decisions and their own proclivities and their own biases, but against the government themselves, and we have to have that, y'know the work of journalism, the work of the press, is challenging the government for control of information. When we lose that we'll be a much poorer society for that, and I think the last years revelations are a good example that the public still does recognize that this kind of reporting this kind of adversarial investigation is incredibly important to the quality of our government, and the quality of our society, and that's the reason why it won the Pulitzer prize for public service that was shared by the Washington Post and the Guardian for that reporting.
Lessig: Yeah but so, even in that context then, you made a pretty strong distinction between people who would leak in the context of for example CIA activities, and people who leak in the context of what you had done, so this is again a narrower conception of what you think the appropriate role for a whistleblower is because you had a much more visceral sense of the risks that would come out by releasing information about the CIA.
Snowden: Right, that's correct. I had access to the personnel records, the social security numbers, the names and sometimes even the addresses of everyone who worked in the intelligence community. These are shared database that someone of my clearance had access to. Because I actually had a level of access that was greater than typical Top Secret, I had what was called privileged access or PrivAcc. That means when somebody like the director of the CIA or the NSA, he wants some information, he wants some report he can't get it himself because he doesn't know where it is, he doesn't understand these things. Y'know He has to ask someone an office manager, they ask someone else, but then there are ultimately individuals who have access to everything. So if I had wanted to cause harm, if I had wanted to reveal everything certainly that was possible. But as you said, when you think about public interest determinations, when you think about what we should know versus secrets, there is a line to be drawn. So what I tried to do was I tried to ensure that only information that was necessary for the reporting was made available to journalists working in the public interest. I required that they all agreed to, though there's no way I can enforce that, I required they all agree not to place any individual or program to unnecessary risk, not to expose them to unnecessary risk or needless harm, and to make sure that the only stories that they published were ones that they had a clear public interest justification. And based on that I could make sure that even though y'know I agreed that this information was important or this information was noteworthy or this would be required on background for journalists to be able to make those determinations, and to understand not just the bad things about these programs, but the good things, so they could draw an accurate conclusion but to make sure that my biases alone were not being represented and to make sure that the public was served by removing myself from the actual determination and publication process.
Lessig: okay so, lets talk a little bit about, lets talk a little bit about the nature of the harm that you're worried about. I was struck, given my own work, with the wonderful way in which you re-use the Jefferson quote, Glenn Greenwald brought this out, it's a really wonderful example of the way you think about the nature of this problem, so Jefferson said “In questions of power * let no more be heard of confidence in men, but bind him down from mischief by the chains of the constitution.” and you would remix that by saying, “Let us speak no more of faith in man, but bind him down from mischief by chains of cryptography.” ** So the intuition here is that we can use physics as opposed to lawyers to enforce the understandings or the rules and that's a central conception of what you think the appropriate response to these invasive technologies is. Is that fair?
*Snowden laughs in the background **audience laughs
Snowden: Right, we what we saw was back when the founders were considering how to draw the lines around our government, its powers, its authorities, and how enumerate what privileges it had, they tried very carefully to say y'know this is within the purview of the federal government, this will be left to the states, and this will be left to the public. And the list of public rights should be much greater than the list of government rights. But what we see inexorably, and this is not unique to the United States, and neither is the problem of mass surveillance and that's key, this is not just about the National Security Agency, and this is not just about our allies, this is about our adversaries, the world is changing, these technologies are here, we need to think about how to correct and address these issues. But ultimately they tried to combat the problems of the natural corruption of power over time by creating subsets of individuals, sort of institutions within the institution that would compete against each other for power and privilege, and because of that they would sort of check each other and we'd have a level of reasonableness in society. Now what we've seen is that even while that's a great idea and that's well intended and that's worked very well for us, that over time over the span of hundreds of years you still get people who, they try to find the ideal move, in game theory terms, they try to reach the Nash equilibrium, where they're always acting to the maximum point of their own self interest. And when that happens, not just as members of this institution inside an institution, not just as y'know, a person within a branch of government. They begin to view themselves as a class, a political class, the elite class, the value of those safeguards breaks down because they no longer see themselves as member of the public, they see themselves as member of a class, as a member of a class. Now because of the advances and achievements that we've had in terms of technology in society, we're beginning to see the dawn of a new kind of thinking around this, which is what I was thinking about when I discussed that, and that was not an original thought of myself, this is something that many people in the cypherpunk movement, other individuals within the NSA such as Bill Binney who tried to create a program where the things that the NSA was intercepting would be encrypted as soon as they were intercepted so the NSA could not read them, and the only people who could decrypt them were actually the courts, so the courts that issued the orders would then provide the NSA with the actual physical capability to read the interception as kind of a safeguard that's superior to law. That's the idea, when institutions fail, when laws fail, natural laws persist and technology is increasingly providing us for the ability to encode our rights not just into our laws but into our systems. So when the failure of black letters on a page becomes apparent, we still have the failsafe of our technological systems, the systems that we surround ourselves with and rely upon every day. And I think that's an issue that we will be confronting more and more in the future.
Lessig: So then lets just think about that in the balance between surveillance and privacy. We talked a little bit about this when we talked in advance of this conversation. Binney's idea of imaging a technology that would protect the product of the surveillance so that the root concern that many people have about mass surveillance, that you have government agents who are rooting around in other people's private lives, would be removed, again, by technology, by cryptography, that wouldn't be possible. And so that this surveillance system that was designed the way you just described would produce a whole bunch of data that would only ever be useable if there were proper authorization to use it.
Snowden: right, an enforcement process
Lessig: But even that idea you have a concern about, you think that doesn't respect privacy enough. So what is the sense of privacy that's invaded if nobody can actually get access to the private data unless there really is a good legitimate personalized claim for why they should get access to it.
Snowden: Well that's because, at least in the United States, we have a fourth amendment prohibition not just against unreasonable search, which is what Binney was protecting against, but also against unreasonable seizure, and that's what that system is not protecting against. And this is a critical distinction that's missed in much of the debate, is that it's not simply a violation of the fourth amendment to search this information, but to seize it without specific justification, without a showing of probable cause to do so in the first place. Because what we're doing is we're compiling what academics have refered to as a database of ruin. When you collect everything from everyone as a matter of course, the temptation to abuse that database, the temptation to access that information, to use it in new ways in response to new threats, particularly in secret, is too great to be ignored. This is one of the reasons that we have the prohibition against unreasonable seizure. We don't say the police can go and search through all of our houses and take everything they want but then simply not use it. Or y'know just make a note of everything in our house but not take it, because it's that reduction in liberty, that reduction in our freedom, that reduction in our power, relative to our state, that is the real concern. Because when we enable a government, an institution, a state, whether it's here or anywhere else in the world to claim these incredible powers even if they're being used properly, as a result of policy. We have to remember that policy is a very weak protection. And I believe the supreme court in riley(?) actually made a statement about this, I'll have to defer to members of your audience for a direct quoute, but the idea is that we did not fight a revolution for the benefit of policy protections. We don't need to justify why we need our rights. I don't have to say why I have, or why I need to be able to hide something, I don't need to say I have something to hid or I don't have something to hide. It's incumbent on the government to make a showing of why it has, not just a desire to but a requirement to infringe upon our rights, infringe upon our liberties, infringe upon our private domain, in order to sort through our things. And that matters whether it's our homes, and that matters whether it's the content of our communications, or the metadata which is y'know all of our associations, our travels, where we're at for how long and all that sort of thing. Policy as a protection, we need to remember that policy is a one way ratchet that only loosens over time. Y'know the government never places additional restrictions on itself unprovoked. So we may have a public debate and say “Alright, we've instituted this program we'll seize the communications of everyone in the country, we'll seize the communications of everyone around the world, but we'll only search them upon these basees, but we're gonna compile this gigantic database that lasts for five years based on current policy,” current policy for retention for the NSA today is five years. And you can waive that to be longer. But the question is how do we know when that changes, particularly when it's classified, particularly when it's not being briefed to the majority of congress, and particularly when we look at things like the intelligence communities that receive twice as much, twice as many campaign donations relative to the other members of congress, from intelligence contractors, from defense contractors. We begin to see a sort of regulatory capture that excuses agencies, programs, and policies from accountability on a very large and alarming basis. And so for me the way we prevent these abuses from occurring is we go, “Look, we have thee rights for a reason, and if we are going to change the boundaries of our rights, that's a public decision that's not a decision for some official sitting behind a closed door somewhere. That's something that we have to arrive on. We have to have broad social approval of it, and we have to agree that these things are necessary and that hasn't happened
Lessig: Right but if it happens, in the way that you've described. If we had this broad public and the public basically said “Well we like the idea of being able to trace back to find the criminal, the terrorist or the criminal, we like this idea, but we also like Snowden's idea or Binney's idea, that all of that data should be protected, not through policy but through physics, through cryptography,” So we created a process, put the fourth amendment aside for a second because it turns out that it's more complicated than this makes it sound, just bracket it, there's a process that said we would encrypt and protect. So there's a database that you could only get access to if you could crack, and maybe you're the only person in the world that could crack it, lets just assume that for a second, you still seem to have some trouble with the idea of this data being out there, this retrospective data being out there, and what independent of the fourth amendment or the framers. What is the problem? What is the problem with that?
Snowden: Ultimately it comes down to it's a violation of our Natural Rights, these are inherent rights that cannot be voted away by the majority. I sort of explain, illustrate the concept previously because that's the government's sort of claim, that's their position and I want to be fair to it. But when I look at it, these are rights that are inherent to our nature. Y'know the reason we have rights is they're protection against the majority, it's to make sure that these programs can't be voted in in a moment of panic, that will pass like it always does. And revoke rights that are necessary, even if those rights are only valued by a small portion of society. Because when you live in a liberal society vis an authoritarian society, you have to have respect not only for the majority's wishes but for the minority's rights. And so we talk about why is it not okay to intercept everything and store it as long as we are encrypting it and filtering it through a processed way. First off it's because it's not necessary. In the wake of these programs the president appointed a panel of friendlies, people who were all incentivised to exonerate these programs. They had full access to classified information, and interestingly they found mass surveillance, particularly in the case of the 215 phone metadata programs although it actually collects more than just phone metadata, that authority had never stopped a single imminent attack in the United States. None of the information had been shown to have any unique or concrete value and of the information that they did find, even though it was nice to have, they found that it was available through other means, traditional means such as court orders. And that's the real key, when I think about what I saw and what really alarmed me during my time at the NSA and CIA it was that we had pivoted. We had changed from focusing on traditional methods of surveillance, which first off is not using foreign intelligence capabilities for law enforcement means, it is important to remember that terrorism is a law enforcement problem at it's core. Is that uh sorry, I got lost there, could you remind me of what I just said?
Lessig: yeah, you were describing the way in which this price...
Snowden: Right mass- vs targeted surveillance, that's what it was, I apologize. Got a really poor working memory (smile). We have the traditional methods of surveillance which are targeted surveillance, and they are effective, even when the target has incredible security measures in place, even when they use encryption, whether that's transport level security i.e. the communication in transit y'know who they're calling is protected, or whether it's data at rest encryption, where y'know the contents of their phone are protected. I working at the NSA when I was focusing on targeting Chinese hackers, would be able to hack hackers. We would be able to penetrate their methods, and this is for everybody around the world, not just in this place or the other, because systems are fundamentally insecure, and this is the same as law enforcement powers we've had for generations in taking down organized crime, y'know the mob, domestic terrorists and things like that. You go to a judge and you say “We have probable cause to suspect this person is involved in some kind of serious wrong doing, some kind of criminal activity, please allow us to exercise these lawful powers in pursuit of this target.” And after the judge approves that basically anything goes. I mean the FBI hacks people now, they hack people, the FBI does it everyday, even on Sundays. We get into their computers, and if they have encrypted material we simply steal the key. Because the fundamental reality of encryption, when we think about how this works is the person using the encrypted data, if I encrypt something I can't read it either unless the key is input at some point. Y'know when you turn on your phone and you're looking at a, if your phone is encrypted locally, and you're looking at pictures, y'know your selfies on it, if those selfies are visible to you, it's because they're being decrypted. Otherwise it would look like white noise, it would look like garbage. So what this means is that even heavily protected, heavily encrypted communications are vulnerable to traditional means of investigation. And this is what the real challenge between what happened before and what's happening now is and who we find our way out of this and how we avoid the mass, y'know, “Lets surveil entire populations as opposed to targeted individuals,” is that rather than saying “Lets monitor the communications of everyone in the United States,” because we want to do pre-criminal investigation, and that's an incredible departure from the traditional model, pre-criminal investigation, doing retrospective searching into evidence we collected against you before you did anything wrong, before you were suspected of any wrongdoing, y'know while you were just an innocent. And instead go “We suspect this person on the basis of this association on the basis of this activity, on the basis of being a witness on the scene of this crime, we have probable cause for surveiling them specifically.” And not only then is that effective and we know that's effective because we do it everyday, it's rights respecting, because you've got the restraints of the courts, you have policy protections in place, and it's done on a basis that is necessary and proportionate to the threat that's being faced. Y'know, it's not necessary, as we've seen from the White House's own review to collect the communications of everybody in the country. This has been going on for more than a decade now, it's never stopped an attack, it's never been shown to be necessary, and yet we've been doing it. So the question is “Do we need to continue to do that when it's not been shown to have value?” We do know it has huge costs, and I, y'know there's no fundamental way to prove a negative of anything here, but I would posit from my own experience using these tools, because I used mass surveillance tools in my work everyday at the NSA in Hawaii, that we miss attacks, we miss leads, and investigations fail because when the government is doing what it calls “Collect It All” investigation where we're watching everybody, we're not seeing anything with specificity, because it's impossible to keep an eye on all of your targets when you're constantly dumping more hay on top of them. A good example of this is actually the Boston Marathon bombings. The Tsarnaev brothers were pointed out to us by the Russian intelligence services, the FBI was tipped off about that. They only performed a cursory investigation and y'know that's because of resource constraints and things like that, and they said “We didn't have enough to go after these guys all the way.” But the reality is that we knew who these guys were, we knew they were associated with extremism, in advance of the attacks, but we didn't really follow up, we didn't really watch these guys, and the question is why? Now I believe the reality of that is because we do have finite resources and the question is should we be spending ten billion dollars a year on mass surveillance programs of the NSA to the extent that we no longer have effective means of traditional targeted surveillance. We're watching everybody that we have no reason to be watching, simply because it may have value at the expense of being able to watch specific people for which we have a specific cause for investigating, and that's something that we need to look carefully at how to balance.
Lessig: So one consequence of everything you've described is the effect on privacy. Another consequence you've talked about is the way the governments intervention into technologies and work with technology companies has rendered commercial entities more vulnerable, more vulnerable into international hacking themselves. I wonder as you reflect on that, to what extent do you think that's a significant concern that commercial interests aught to be bringing to the government as an independent reason to cut back on this kind of intervention.
Snowden: So the vulnerability of systems and services to mass surveillance is a big thing, it's a big danger competitively, particularly that is policy based, as opposed to technologically based,. That is if these authorities are being drawn from national laws then suddenly nobody trusts American products and services anymore, we have, y'know we have prism, we have basically backdoor authorities to go into Google and Facebook and Apple and so on and so forth under the FISA amendment's 502 authority, which does not require a warrant, mind you, and they can rifle through the communications of people using these services. Why would an individual trust a bank that steals from them? Similarly why anybody trust a phone that spies on them? If a German wants to buy a phone are they going to buy an American phone with a backdoor or are they going to buy a Korean phone that's surveillance free cause they know that's a competitive advantage. That's something we need to be able to confront, more broadly how do we secure us, how do we make sure our technical products and services are robust and resilient against government intrusions, not just from our own government, because by-and-large our government does a play by pretty decent rules, but how do we protect them against adversaries, how do we protect them against the most authorian[sic] states in the world? And the only way to do that is to ensure that we fundamentally oppose any policy, any kind of dictates that compromise the security of our devices, that compromise the security of our services. It's talked about recently; the government, the FBI, is pursuing back doors into our personal devices, y'know they want to be able to spy on our phone as long as they say “Well we have a reason, we have some process that'll allow us to do it.” but the reality is that once you bake a back door into something you can't control who walks through it. The NSA has done this for ages, where we exploit back doors built into communications, built into systems by other countries for these same reasons, we do it for our own reasons. Y'know the FBI builds back doors in for a lawful purpose, the NSA uses them for foreign intelligence purposes, so on and so forth. And this is also, this is not theoretical, these are things that have already happened. If you've got phones out there y'know you can Google the Athens Affair which is a wiretapping instance circa the Greek Olympics, where basically the entire government of the country, their highest level officials were unlawfully wiretapped by unknown parties, using lawful intercept capabilities that were built into the telecommunications devices in place at the at that country. And that's really the danger. By enabling this sort of surveillance we're actually weakening the security for a massive factor of individuals. We're basically compromising the security of a society for the benefit of an agency. And y'know there can be reasonable disagreement about where we draw the lines and where this should happen, but the real question is how many phones has the NSA or the FBI seized that they were unable to break the encryption on. They actually provide counts for these, I think there's one from a couple of years back that shows they've only ever been unable to break a couple phones, something like three or four, and it wasn't relevant to the case. Meanwhile they seize tons of phones that are encrypted that they are able to get around. So really is this the problem that it's claimed, compared to the protection that basically good cyber security practices provide to a society. If we had secure services, if we had secure products, and we had a national competitive advantage globally, we have a robust and thriving technical sector that's providing jobs, it's providing taxes, it's providing economic growth that's creating a more enlightened society here, y'know, the tax revenues based on that can result in a more fair living condition for everyone living within it. We're also safer, we have a better respect for our rights, more better protected against basic crimes. If you lose a phone and that phone is not encrypted, whoever finds that phone now has access to everything in your life. And that's not even talking about y'know the NSA, that's not even talking about intelligence agencies, that's just talking about the guy in the corner. If your phone is encrypted that information still belongs to you, and that's really what we need to think about. Do we want to have control over our private lives? Do we want to have control over our associations, over our ideas, and over our effects? Or do we want to forgo these things, can we forgo these things in response to a limited and transient threat.
Lessig: So when you came to the decision to become a whistleblower, obviously it wasn't a decision that you could have made in a single day, it must have been many months of coming around to the conclusion that this was something you had to do. Were there moments when you concluded it was wrong, you shouldn't do it, and/or you were afraid that if you did it certain terrible things would happen and what was that reflection like? Could this have gone in a very bad way that obviously you don't think it did? Or are there things about it that you really regret?
Snowden: So there is still an active and ongoing investigation into me right now, so I'm kind of limited in what I can discuss with specificity. I will say that of course I had second thoughts, I had doubts because I really wanted to make sure that, my first principle, for all of the journalists for everyone involved in this was that we have to do no harm, right? We have to make sure that this serves the public interest, because this is an extraordinary action. But when I had doubts, ultimately it came down to “Is there a means through which the system can self correct?” And I came to the determination that that was not the case. Whistleblowing is ultimately the last failsafe. It's the saftey valve through which any organization, any institution, can repair itself organically through it's own personnel, before become it becomes a failed institution, before it becomes an illiberal institution. And when I think about the way this happened, and how it shaped my own thinking I look back on the political offense, and the health of the oversight, the health of the accountability, to which the intelligence community and the National Security Agency specifically were being held. And I saw things like the Supreme Court decision in Amnesty vs Clapper, where the ACLU argued that under the 702 surveillance authority of the FISA amendments act of 2008 we were all being monitored, this kind of thing was happening. The Supreme Court rejected the lawsuit, not on the merits but based on standing. They said that we could not prove that we were being watched, and on that basis we couldn't challenge the policy that allowed us all to be watched. Beyond that we had failures in Congress. The director of National Intelligence, James Clapper, under oath gave false testimony to the Intelligence Committees, which were charged with overseeing him, with regulating the behavior of these things. Ron Wyden famously asked him “Does the NSA collect any information at all on millions or hundreds of millions of Americans,” and he said “No,” that was not true, and yet we didn't know about it as a public, there was no correction even days after, even after he was informed that he had provided false testimony, and he faced no consequence. Which is very dangerous because people in the intelligence community at the senior level, at the level of positional authority, the decision makers, pay attention to these things, and it creates an institutional culture. You could argue it is corrupt, not in a graft sense but in a sense of personality politics, people could make their own decisions that are untethered from public interest because they know they will not be held to account for it, that's dangerous. And ultimately, we had the courts, we had Congress, we also had the Executive. The President had campaigned to reign in these programs, to reign in thes abuses, and I'm not putting it just on the president himself but fundamentally I think one of the most consequences, legacy issues here, is that when we had evidence of criminal wrongdoing in a US administration, no one was held to account for it on the basis that we should look forward and not backward. But all criminal activity, all criminal investigation, I'm sorry, is retrospective. We have to look backwards if we are to hold anyone to account, and when that doesn't happen we have a question of how does this impact the quality of our society? How does this effect the quality of our governance? And how does this effect our power as a public in relation to our government? And when I look at these issues in aggregate, it seemed clear to me that this was not something that I was making an extraordinary leap about. If it was not to be me it would be someone else. If the government did not want individuals such as myself to hold these ideas and to defend the constitution against these kinds of violations, they would not make us swear an oath to the constitution. Y'know when I took an oath at the Central Intelligence Agency that oath was to to protect the constitution against all enemies foreign and domestic. And that's important to remember, because that's critical to the quality of our governance, if you only look outward we have this sort of inevitable slide, this inevitable slow corrosion where generation after generation we lose a little bit of our freedom a little bit of our liberty that we inherited. So this kind of push back, particularly when we try to do it carefully, particularly when we try to do it in a narrow way, is not dangerous to society but is in fact I think healthy for it. And I was one of the individuals who I believe had the visibility into where the problems lie by virtue of my position, by virtue of my experience, by virtue of my access, to raise these issues to public awareness. So I tried to that in the most responsible way that circumstances would allow.
Lessig: So you've obviously put yourself at great risk. You're in a very difficult situation right now, you're in Russia, I take it that was never part of the plan to be stranded in Russia. But as you think about civil disobedience and what the ethics of civil disobedience should be is there a certain point at which it's appropriate to make yourself available to the ordinary criminal process? I mean we have, for example, my colleague Yochai Benkler believes, and I think this is right, that there aught to be something like a public accountability defense to criminal prosecutions, where if what you've done is to whistleblow for the purpose of exactly as you've said then you'd be excused. But obviously we don't have that in our law right now. So I wonder if as you think about it, I mean it's important that you've been outside of the control of the law for a period of time, for the purpose of making us aware of this, but I wonder if you struggle with what the long term for Edward Snowden is?
Snowden: Oh absolutely, I mean the ultimate question for me is have I done the right thing in the best way I could. I'm never going to be perfect, I'm going to make mistakes, I'm only human. I don't think I'm superman, I don't think I'm infallible, I'm sure I've made many mistakes. And I've volunteered to go to prison for the government, but they've dismissed that, they have their own agenda as far as this is concerned. But I won't get too far into the brass tax of criminal investigation and whatnot I'll leave that for the lawyers in the room because I'm not a lawyer, but the reality is as you stated there is no due process available for whistleblowers in the intelligence community today particularly contractors as opposed to direct government employees. Even the process protections, not statutory protections that exist for people in the intelligence community or whistleblowers more broadly federally are very limited when they come to private contractors, in fact they don't exist. We're exempted from those kinds of protections. And when we talk about the law more broadly we see that the Espionage Act, which is intended for the prosecution of spies is being increasingly leveraged as sort of a bludgeon against public interest journalistic sources and whistleblowers, and that's a real danger to society because as you said there is no, you are banned, you are prohibited from making a public interest defense, you are banned from arguing to the jury that you tried to do these things for the right reasons, whether or not they agree. And when we think about the fact that we have closed court processes where they limit the arguments you can make, limit the kind of programs and evidence that you can present to the jury as a defendant and you limit even the arguments that they regarding what their motivations were, you have to go is this still a law that is again consistent with not just our constitution and due process protections and basic ideas of fairness and justice, but is it consistent with our values as a society, and is it consistent with our need for a free press. Because when anybody who acts as a journalistic source does so at their own peril of ten years or more in prison what impact does that have on society? And again I don't want to presume to say where the line should be drawn because obviously I have a conflict of interest and biases incumbent there, but I do think it's reasonable to say that there is no reason that defendants should be prohibited from making a public interest argument before a jury when their actions were clearly intended on serving the public interest.
Lessig: So I'm grateful for the time you've given us, I'm just going to close with one last question from Mohib San: “Hoodies or suits, Edward Snowden?”
Snowden: * laughs * I have to say I love that person for asking, thank you very much, because I am not, I'm not a commentator, I'm not a talking head, I'm not media guy, I'm not polished, I suck at this stuff honestly. I am a hoodie guy, I wore hoodies at work at the NSA, my lawyer and everybody around me advises me that I have to wear a suit because it's what people do, but yeah y'know, just for you I'm getting rid of this suit because that's not me. But it's a hoodies all the way thing, and I hope, by the time I die and the next generation has inherited the earth, we don't even have suits anymore, they're just gone forever.
Lessig: So please join me in thanking Edward Snowden for taking the time. * applause *
Snowden: Thank you very much.
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