Lawrence Lessig Interviews Edward Snowden

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 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 of 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 we'll hope the technology brings Edward Snowden to the screen there is Edward Snowden thank you very much the invitations I haven't prepared any remarks but I think we're going to cover a lot of very critical issues and 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 begin great thank you um and let's 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 but what I've often been struck by is the number of people who have no clear sense of who you are and what your values were as you came to work with the NSA and as you came to do the on the work you did by exposing the NSA so what if you just give us a sense of your own personal background your own ideological background as it might relate to this well 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 government uh and I worked 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 11th attacks I actually signed up for the invasion of Iraq because I believe that fundamentally our government had noble intends and it did good things it did them for the right reasons what I was not aware of and I've grown to become a little more sophisticated in this is that while the people in government largely are exactly that they're good people trying to do good things for the right reasons there is 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 policy is irrevocably sort of irresistible they gravitate towards the prerogatives of individuals of these officials of an elected and unelected class of bureaucrats it can sort of degrade the quality that we as individuals enjoy so as I went through my time in the the classified world the intelligence community call it and I moved from the Central Intelligence Agency the National Security Agency I worked on both the 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 tasking from government employees I gained an increasingly concerning understanding of what happens on the broad scale what the results of all these individual decisions not 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 you 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 being using them against us and 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 are constitutionally 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 that administration actually was fully aware in their own classified opinions in the inspector general's 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 you know they using Article two powers where basically the president says we're or 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 times of existential threat but we don't have u-boats in the harbor we don't have you know foreign armies marching on American soil we haven't seen total war policies in the United States since World War two and so we have to ask why were these decisions being made why was the public not allowed to participate in the debate and why is it that even within the separate branches of government officials were not aware of this within the executive branch now in the intelligence community many of my co-workers who also had top sequences time on relaxed ethics were unaware that these things were going on the vast majority of Congress had no idea these programs have been instituted or were being maintained even those on the intelligence community intelligence committees in both the Senate and the house were not fully briefed the only the gang ate that be that chairs the ranking members and then the majority minority leaders for both houses are briefed on so-called covert action programs and things like that exceptionally compartmented programs and the courts had increasingly in the wake of the post 9/11 period become reluctant to scrutiny any decisions or programs that were constitutionally questionable saying that they lack the expertise or the positioning or what it ultimately boiled down to was the political willingness to confront difficult questions to which there may or may not be bright answers once they're right wrong so this led 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 long going the report and continues but the ultimate basis is aren't that many people consider the last year's surveillance of unconstitutional activity at the NSA and so on and so forth to be ultimately about surveillance and mass surveillance and that is a critical issue and is the one with which I'm most familiar and I saw the greatest wrongdoing however it's important to be aware that the reality that mass surveillance illustrates is that we have agencies that are working on their own authorities they're working on their own sort of a 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 of a free society we have lost in many ways the freedom to associate without judgment in the United States because of the metadata program that's really an associational tracking program when we have everyone's call records we know who everyone's friends are you know who they contact you know they do you know when they travel we know where to go we know how long their dick it's there our 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 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 and Amendment and we see this happening and being upheld even through international laws decisions about very recently two or three days ago the United Nations Special Rapporteur on countering terrorism and protecting human rights delivered a report that event of works early several years that found that mass surveillance programs violate the obligations of states that the United States and the Kingdom and other many of our other allies have agreed to under the International Covenant on Civil Rights the ICCPR as well as and this wasn't mentioned specifically but the very same right that he was highlighting on this report was an obligation we had agreed to under the Universal Declaration of Human Rights you know some 50 odd years back and that's article 12 and that's that we all have a right to privacy to be free from unjustified unreasonable trousias into our lives and we have this of course under armed 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 that broadly I was witness to massive violations of our Constitution that they were happening in secret and that they were happening as a result of a broad breakdown through out 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 forth but the question of whistleblowing of when to stand up is really one of do those checks and balances to 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 in those policies correctly and in this case they were not we saw that both the courts Congress and the executive had all failed in different different portions of these these programs and protecting our rights and I think we'll cover that a little more detail later but did that answer your question yes so what's striking about the position you've described both here and also in the interviews that have been - you've given is how relatively limited it is for its 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 the problem of democratic accountability you said quote it's not my role to make that choice the choice 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 right ultimately it comes down to a question of you know people argue about what is a whistleblower I tried to raise my concerns internally they got nowhere other individuals who have done the same thing whether they're Thomas Drake bill Binney Kirk Wiebe at 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 been described in the way that these processes have inevitably become more cumbersome and less effective over time to the point where they're eventually broken I think the 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 deep throat thing where they're trying to get their boss fired so they can move into the next job that's not that's not whistleblowing I think under anyone's definition but really comes down to when I stepped up it was not to dictate outcomes and I think that's ultimately the key mark there it's about allowing the public a chance to participate in democratic processes in order to play their part amen I determine the outcome the reality is since since we saw the birth of sort of this unitary executive theory in the White House and throughout American governance the government has the public has lost their seat at the table of government we're being increasingly left out of critical discussions about the policies and the direction that we want to steer our society toward they're being made in our name without our awareness and without our consent but in a democratic republic you know the government draws instant legitimacy from the consent of the people and everybody who's involved in any kind of research knows that you know consent is not meaningful if it's not informed and that's what was lagging so when I think about the question of you know how do you see how do you find the line the point of justification by which you can stand up go to the press and this is another key distinction as I didn't publish any of these materials I've never published a single story on the NSA myself because everyone has biases right and even though I have an expert understanding that these programs that work within personally any the authorities they operate under how they're used again I had the ability to look at anybody's email that was being ingested on these programs whether that was intercepted domestically or overseas I had authorities look at both but 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 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 constitutional system that's why we have the person moon and it's really not the role of an individual such as myself to say what the public should and should not know but by working in partnership with the Free Press we can allow institutions that exist to make these sort of determinations to then sit down with the 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 never missed or misunderstood or the value of these programs misinterpreted by the by the journalists and ultimately we can get a decision from there and there's a kind of accountability that's born that that's lacking well it's an individual immunity so good but you know just in your decision to go to the press is the second important difference you decided not to go to the New York Times directly you went to Glenn Greenwald who was a very outspoken independent member of the press and he partnered and you went to with Laura Poitras whose amazing film is coming out this week and you went to the Guardian which is obviously not the American press I and you had very better that's actually not correct of the Guardian has both a u.s. branch and a UK branch they're completely separate corporate institutions and I went to the u.s. garden 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 there was a you know I made a specific determination that would be valuable to have sort of the DC institution in the hearts of our government and their press really have a role to play the reason 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 public interest to know right on the eve of the 2004 elections it was discovered and revealed by reporter James Verizon that the Bush administration had authorized without statutory authority the warrantless wiretapping of everyone in the country and that was both based on the internet and phones although I don't believe he had the internet metadata program no to him at the time and the times I believe it was 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 I believe more than a year later but that was only because the journalist who had worked on the story James Rosen who's now actually being they face contempt of court charges they're being prosecuted by the DOJ that journalists intended to Pablo a book to get that information to the public regardless of the newspapers 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 ending as a result so there is a real question I think and the times has they've stated that they've sort of changed their position and they've changed their thinking and their reasoning since then about taking government claims at face value but there is a there is a real question about had that story 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 not only have had a public impact would it 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 into account those decisions into account when they cast a vote yeah so part of the 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 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 that 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 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 that Glenn succeeded in getting published in a time horizon that would have been unheard of had it been even the Washington Post and so once again you can think of what is it about the institutional structure of the American newspapers that differentiates them and you know 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 began to think about this or is that just something you discovered after when when I thought about how to how to structure the to enable the journalism as best I could I have no experience with the media I'm not a journalist I'm not an editor I can't tell them how to run an MA to run the newspaper so I won't take a judgment on the work of this newspaper that newspaper but I will say when we look at it in terms of an institutional basis the real challenge for the US began 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 one institution you know only the Washington Post had this story they would likely be a they would have a very difficult time in negotiating with the government to make sure that the public did get all of the information it needed and not just the information that the government thought would be beneficial for them to know which is what we see so so regularly today with anonymous officials you know who are basically leaking classified information classified programs on a daily 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 a sort of market player basically as 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 Alerus Pritchard The Guardian on 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 it is truly harmful and any information like that you know it's it's natural that this be excised from publication because nobody wants to cause harm to individuals right nobody wants to harm security but when the government draws these lines on its own without any accountability without any sort of quarter reviews they draw the lines in a 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 fertility and their own biases but against the government themselves and we have to have that you know the work of journalism the work of the press is challenging the government for control of information and we lose when we lose that we'll be in a much poorer Society for that and I think the last the last year's revelations are a good example of the fact 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 in the quality of their society and that's the reason that it won the public or the Pulitzer Prize for public service that was shared by the Washington Post in the Guardian or never for me yes so but even so even in that context though you made a very strong distinction between people who would leak in the context of for example CIA activities and people would leak in the context of what you had done so so this is again a narrower conception of of what you think the 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 this right that's correct I had access to the 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 databases that someone with my clearance has 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 prove ACK that means when somebody like the 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 um you know he has to ask someone an office manager they asked someone else but then there are ultimately individuals who have access to everything so if I had wanted to cause harm if I wanted to you know reveal everything certainly that was that was possible but as you said when you think about Public Interest determinations when you think about what we should know versus legitimate secrets well there is a line to be drawn and so what I tried to do was I tried to ensure that only information that would be necessary for the reporting was made available to journalists working in the public interest I required that they all agree to all of them you know there's no way I can enforce that I required they all agree not to place any individual or program at add to unnecessary risk not to expose them to unnecessary risk of needless harm and to make sure that the only stories they published were ones for which they had a clear Public Interest justification and based on that I could make sure that even though you 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 we're not being represented and to make sure that the public was served by removing myself from the actual determination publication process okay so let's talk a little bit about let's talk a little bit about the the nature of the harm that you're worried about um I was struck given my own work with the wonderful way in which you reuse the Jefferson quote Glenn Greenwald brought this out it's a 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 the 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 right what we saw was back when the founders were considering how to draw the lines around our government its power as its authorities and how to enumerate you know what privileges it would have they they tried very carefully to say you 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 lists of government rights but what we see inexorably and this is not unique to the United States and neither is the problem massive veins and that's key um this is not just about the National Security Agency this is not just about our allies this is also 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 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 at a level of reasonableness in society now what we've seen is that even even well that's a great idea that's well intelligence worked very well for us 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 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 within an incision not just as you know a person within a branch of government but when 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 class now because of the advances and achievements we've had in terms of Technology and 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 discuss that and that was not you know in our original thought of myself bomb this is something that many people in the cyberpunk moon 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 and that's that's the idea is when institutions fail when laws fail natural laws persist and technology is increasingly providing us for ability the ability to encode our rights not just into our laws but into our systems so when you know the failure of black letters on a page becomes apparent we still have the failsafe of our technological systems the the systems that we surround ourselves and rely upon every day and I think that's a that's an issue that we will be confronting more and more so then let's just think about though and that in the context of the balance between surveillance and privacy we talked a little bit about this when we talked in advance of this conversation I'm Benny's idea of imagining 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 basically rooting around in people's private lives would be removed again by technology by cryptography that wouldn't be possible and so that this surveillance system that were that was designed the way you just described would produce a whole bunch of data that would only ever be usable if there were proper authorization to use it but it's adequate in the process yeah 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 have access to it well that's because at least in the United States we have a fourth Fourth Amendment prohibition not just against unreasonable search which is what Binney was protecting against but also against unreasonable seizure in the first place and that's what that system does not protect against and this is a critical distinction that is missed and 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 some sort of showing of probable cause to do some of the first place because what we're doing is we're compiling what academics have referred to as a database of ruling when you collect everything on everyone as a matter of course the 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 simply too great to be ignored and this is this is the reasons that we have the prohibition against unreasonable seizure we don't say you know the police can go and search through all of our houses take everything that they want but then simply not use it or you know just make a note of everything that's in our house but not take it because it's that 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 and Riley actually made a statement about this I'll have to defer members of the audience for the exact quote um 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 need 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 hide or I don't have something kind it's incumbent on the government to make a showing of why it has a not just a desire to that a requirement to infringe upon our rights infringed upon our lead infringe upon our liberties infringed upon our private domain in order to sort through our things and that matters whether it's our homes that matters whether it's the content of our communications or the metadata which is you know all of our associations are our travels where we're at for how long that sort of thing policy as a protection we need to remember that policy is a one-way ratchet that only loosens over time you know the government never places additional restrictions on itself unprovoked so we may have a public debate and say all right we've instituted this program will cease the communications of everyone in the country will cease the communications of everyone around the world but we'll only search them upon these bases but we're going to compile this gigantic database that lasts for five years based on current policy current policy for attention at 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 the majority of Congress and particularly when we look at things such as the intelligence committees that received twice as much nice 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 these 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 on it and we have to agree that these things are necessary and that hasn't happened right but if it happens in the way that you described if you have this broad public conversation and the public basically said well we like the idea of being able to trace back to find the criminal the terrorists or the criminal we like that 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 and so we created a process but this Fourth Amendment aside for a second because it turns out it's more complicated than then this makes it sound but just bracket it there was 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 who could crack it let's just assume that for a second um you 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 of the framers just what is the problem what's the prob ultimately it comes down to it's a violation of our natural rights right these are inherent rights that cannot be voted away by Jordy I sort of explain and illustrate the concept previously because that's the government's sort of claim that's their position I want to be fair to it but when I look at that these are rights that are inherent to our nature you know the reason we have rights is their protection against the majority it's to make sure that these kind of 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 when you live in a liberal society of vice and authoritarian society you have to have respect not only for the majority's wishes but the minorities rights and and so we talk about why is it not okay to intercept everything store it as long as we are encrypting it and and filtering it through in 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 you know people who are all incentivized to exonerate these programs they had full access to classified information and interestingly they found that mass surveillance particularly in case of the 215 phone metadata programs although it actually it's more than just for a minute 'iv that authority had never stopped a single imminent attack in the United States none of the information had been shown to have any unique and concrete value and of the information that they did find even if it was nice to have they found that it was available through other means traditional such as corridors and that's the real key when I think about what I saw and what really alarmed me not 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 and it's important to remember the terrorism is a law enforcement problem or um is that uh sorry uh hi I got lost there could you remind me what I just said yeah you were describing the way in which um this right mass versus targeted survey writes that's where those I apologize got a really poor working memory um we have the traditional methods of surveillance which are targeted surveillance and they are effective and this is key even when the target has incredible security measures in place even when they use encryption whether that's transport level security ie the communication in transit you know who they're calling is protected or whether it's data at rest encryption which is you 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 you know we would be able to penetrate their methods and this is for everybody around the world not just a hacker in this place the other because systems are fundamentally insecure and this is the same as law enforcement powers we've had for four generations and taking down organized crime you know the mob uh domestic terrorists and things like that you go to a judge and you say we have probable cause to suspect that this person is involved in some kind of serious wrongdoing 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 every day even on Sundays we get into their computers and if they have encrypted encrypted material we simply steal the key because the fundamental reality of encryption when we think about how this works is the person who is using the encrypted data right if I encrypt something I can't read it either unless the key is input at some point you know when you turn on your phone and you're looking at you know if your phone is encrypted locally and you're looking at pictures you 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 how we find our way out of this and how we avoid the mass you know let's surveil entire populations as as opposed to targeted individuals is um rather than saying let's monitor the communications of everyone in the United States because we want to be able to do pre criminal investigation and that's an incredible departure from the traditional model pre criminal investigation where we're doing retrospective searching into evidence that we collected against you before you did anything wrong before you were suspected of any wrongdoing you know while you were just an innocent and instead go we suspected this person on the base of this association on the basis of this activity on the basis of being a you know witnessed the scene of this crime we have probable cause for surveilling them specifically and not only is that effective and we know it's effective because we do it every day um its rights respecting because you've got the restraint 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 you know it's not necessary as we've seen from the White House's own review to collect the communications of everyone 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 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 you know there there's no um no fundamental way to prove a negative anything but I would posit from my own experience using these tools because I use mass surveillance tools in my work every day at the NSA no body um that we miss attacks we miss leads and investigations fail because when the government is doing what it's called a collected all investigation where we're you know 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 you know that's because of resource constraints and things like that now they said you know we didn't have enough to go after these guys all the way but the reality is we knew who these guys were we knew they were associated with extremism in advance of the attacks but we didn't 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 at 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 them and that's something that we need to look carefully ahead of balance so one consequence of everything you've described is its effect on the effect on privacy another consequence that you've talked about is the way in which the government's intervention into technologies and work with technology companies has rendered commercial entities more vulnerable more vulnerable to international hacking themselves I wonder as you reflect on that you know to what extent do you think that's a significant concern that commercial interests ought to be bringing to the government as an independent reason to cut back on this kind of intervention so the vulnerability of systems and services to mass surveillance is a big thing it's a big danger competitively particularly if it is policy based as opposed to technologically based because if these authorities are being drawn from national laws suddenly nobody trusts American products and services anymore we you know we have we have prison you have basically backdoor authorities to go into Google and Facebook and Apple and so on and so forth under the FISA Amendments 702 Authority which does not require warrant mind you and they can rifle through the communications of people using these services why why would an individual trust a bank that steals from them similarly why would anybody trust a phone that spies on me 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 someone that surveillance free because they know that's a competitive advantage um that's that's something we need to be able to confront more broadly uh how do we secure this how do we make sure that our technical products and services are robust and resilient against government intrusion is not just from our own government because by and large our government does a play by pretty decent movies but how do we protect them against adversaries how do we protect them against the most Ithorian states in the world and the only way to do that is to ensure that we fundamentally opposed any policies or any kind of dictates that compromise the security of our devices that compromise the security of our services it's it's talked about recently the government the FBI is pursuing backdoors into our our personal devices you know they want to be able to spy on your phone as long as they say we've got a reason we have some process that allow us to do it but the reality is won't you bake a backdoor into something you can't control who walks through it the NSA has done this for ages where we exploit backdoors built into communications built in the systems by other countries for these same reasons we do it for our own reasons you know the FBI builds backdoors and for a lawful purpose the NSA uses them for foreign intelligence purposes so on and so forth and this is also there's this is not this is not theoretical these are things that have already happened if you've got phones out there you know you can Google the Athens affair which is a wiretapping instance I believe circa the Greek Olympics where basically the entire government of the country their highest level officials were lawfully wiretapped by unknown parties using lawful intercept capabilities that were built into the telecommunications devices in place at that country and that's really the danger of 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 society for the benefit of an agency and you know there there there can be reasonable disagreement about where we draw lines and where this should happen but the real question is you know how many phones has the NSA or have the FBI seized that they were unable to break the encryption month they actually provide accounts for these I think there's one from a couple years back that shows they've only ever been a unable to break a couple phones something like three or four and it wasn't relevant to the case I think meanwhile they seized tons of phones that are encrypted but they are able to get round so really is this the problem that it's claimed compared to the protection that encryption that that basically good cybersecurity practices provide your society if we have secure services if we have secure products and we have 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 you know we the tax revenues based on that can result in a more fair more fair living condition for everyone within it we are also safer we have a better respect for our rights and we're 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 you know the NSA that's not talking about intelligence agencies let's just talk 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 ideas and over our effects or do we want to forego these things can we forego these things in response to a limited in transit threat 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 must have been many months of coming around to the to the conclusion that this is something you had to do just 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 were that what was that reflection like could this have gone in a really bad way that obviously you don't think it did or are there things about it that happened that you really regret so there 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 but I will say that yeah I of course I had second thoughts I had doubt because I really wanted to make sure my first principle for all of the journalists for everybody involved in this was we have to do no harm right we have to make sure that this serves the public interest because this is an extraordinary 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 a that was not the case whistleblowing is ultimately it's the last failsafe it's the safety valve through which any organization or an institution can repair itself organically through its own personnel before it becomes a failed institution before it becomes an illiberal institution and when I think about the way this uh this happened and how it shaped my own thinking I looked back on the political offense and the the health of the oversight the health of the accountability to which the intelligence community the National Security Agency specifically were being held and I saw things like the the Supreme Court decision in amnesty versus clapper where the ACLU argued that under the - surveillance authority on FISA men attacked 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 Sten 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 false testimony to the intelligence committees which were charged with overseeing and 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 that is the public there was no correction even days after even after he was informed that he provided false testimony and he faced no consequence which is very dangerous because people in the intelligence community not at the senior level at the level of positional authority of the decision-makers they 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 can 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 you know we had the courts we had Congress we also had the executive the president had campaigned to rein in these programs rein in these abuses and I'm not putting it just on the President himself but fundamentally I think one of the most difficult consequences legacy issues here is that when we had evidence of criminal wrongdoing in a US administration no one was held to account for 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're to hold any to account and when that when that doesn't happen you we have a question of how does this impact the quality of our society how does this affect the quality of our governance and how does this affect our power as a public in relation to our government and when I look at these issues in aggregate it seems clear to me that this was not a this was not something that you know 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 you know when when I took an oath of the Central Intelligence Agency that oath was to protect the Constitution against all enemies foreign and domestic and that's that's important to remember because this is critical to the quality of our governance if we only look outward we have this sort of inevitable slide this inevitable slow corrosion where generation after generation we lose a little bit of the freedom a little bit of the Liberty that we inherit so this kind of pushback 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 believed had the 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 do that in the most responsible way that circumstances would allow so you you've um 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 um but as as you think about civil disobedience and what 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 yokai benkler believes that I think this is right there ought to be something like a public debility defense to criminal prosecutions where if what you've done is to whistle blow for the purpose of exactly as you've said then you could be excused but obviously we don't have that in our law right now so I wonder as you think about it I mean it's been important that you've been outside of the control of the law for a period of time for the purpose of making this making us aware of this but I wonder whether you struggle with what the long term for Edward Snowden is oh absolutely I mean the the ultimate question for me is you know have I done the right thing in the best way that 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 you know I don't think I am infallible and I'm sure I've made many mistakes and I've volunteered to go to prison for the government but you know they dismissed that fate they have their their own agenda as far as this is concerned but you know I won't get too far into a into the brass tacks of you know criminal negotiation whatnot I'll leave that for the lawyers of them 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 is supposed to direct government employees even the process protections not statutory protections that exist for people in intelligence community or whistleblowers more broadly federally are very limited when they come to a private contractors in fact they don't exist we're exempted from those kind of protections and when we talk about the law broadly we see that the Espionage Act which is intended for the prosecution of spies is being increasingly leveraged to be used as sort of a bludgeon against public interest journalistic sources and whistleblowers and that's a real danger Society because as you said there is no you're banned you're prohibited from making a public interest defense you're 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 that you can make you 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 can make for 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 the basic ideas of fairness and justice but is it consistent without 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 the 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 law should be drawn because obviously I have I have a conflict of interest and biases incumbent there but I do think it's reasonable to say that there is no reason the defendant should be prohibited from making a public interest argument for a jury when their actions were clearly intended on the basis of serving the public interest so I'm grateful for the time you've given us I'm just going to close with one last question from OHIP mojitos on hoodies or suits Edward Snowden you know I I have to I have to say I love that person for asking thank you very much because you know I'm I'm not a commentator I'm not a I'm not a talking head I'm not a 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 advices me that I have to wear a suit just because it's what people do but yeah you know just just for you I'm get rid of the suit because that's uh that's not me but um it's uh it's a hoodies 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 for them so please join me in thanking a word sir thank you

Channel: Harvard Law School

Views: 299,255

Rating: 4.8588409 out of 5

Keywords: Lawrence Lessig, Edward Snowden, Harvard Law School

Id: o_Sr96TFQQE

Length: 63min 1sec (3781 seconds)

Published: Thu Oct 23 2014

Reddit Comments

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