Current Affairs

Private vs Public Surveillance: Reflections on Edward Snowden’s Personal Record

In the days following Trump’s proposal of a pardon, the public reexamines the actions and inner world of Edward Snowden.

Perhaps the only uncontroversial thing that one can say about Edward Snowden is that he is a figure who inspires an almost unique degree of controversy. Since he first rose to international prominence in 2013, prominent detractors of the former-NSA-employee-turned-whistleblower have described him as, among other things, a “traitor,” “a grandiose narcissist who deserves to be in prison,” a “coward,” a “dutiful courtier” of the Russian government, “China’s useful idiot,” a “cross-dressing Little Red Riding Hood,” a “weasel,” and —perhaps most brutally—a foreign “spy” who deserves to be “executed.” His supporters, by contrast, have labelled him a “role model,” “the John Brown of the national security state,” a “brilliant, humble, and idealistic” individual, a “patriot,” and a “hero.”

Reviews of Snowden’s memoir, Permanent Record (2019), have been similarly, and predictably, polarised. To give just one example: in a withering review of the book for The Wall Street Journal entitled “A Hero in His Own Mind,” Barton Swaim lambasted Snowden for writing “a whiny and muddled indictment of the US government,” before criticising the book for being “suffused with the author’s pubescent arrogance”—a claim ostensibly contradicted by a review of the book by Janine Gibson, published in the world’s other major business newspaper, The Financial Times, which claimed that “even those still shrilly insisting [Snowden] is a traitor […] will have to concede this book reveals no Narcissus.”

For the purposes of this article, I wish to remain neutral on the subject of Snowden’s character, as well as on the issue of his alleged heroism or treachery. The reason for this is simple: these concerns are irrelevant to the main topic that I wish to discuss here, namely, (some of) the specific—and, I feel, thus far largely overlooked—claims that Snowden makes in his book pertaining to mass surveillance. More specifically, regardless of whether you think Snowden is a traitorous, pubescent narcissist or a humble, idealistic national hero, we can all surely agree that the claims Snowden makes in his book may well still be worth discussing—and, as I hope to show, they definitely are worth discussing.

First, though, let me begin by presenting (what I regard as) a distillation of the views of many liberal (or libertarian)-minded journalists who have written on the Snowden leaks over the last few years:

Private tech companiesamong them Google and Facebookhave for many years been collecting data from their users which the U.S. government has illegitimately demanded access to, and used, for its own nefarious ends, among them mass (warrantless) surveillance, monitoring, and control. Not only is such government abuse unconstitutional violating as it does the Fourth Amendment, which protects U.S. citizens from “unreasonable searches and seizures”but it is also immoral, violating as it does citizens’ inalienable right to privacy, a right that is absolutely essential for human flourishing and societal well-being. Moreover, the appropriate way to combat these government abuses is to force the U.S. government to renounce its mass surveillance programs, and also to pressure private companies into not collaborating with the U.S. (or, indeed, any other) government to similar such ends.

Although several journalists have, to varying degrees of explicitness, defended something close to this viewpoint over the last few years, perhaps the most overt proponent of this position is the American journalist Glenn Greenwald, who was also closely involved in reporting on the original Snowden archive (and who eventually won a Pulitzer Prize in 2014 for his work). In the recorded Q&A immediately after his 2014 TED Talk “Why Privacy Matters,” Greenwald was asked by the event moderator: “I’m wondering, for you personally, what is the endgame? At what point will you think, ‘Well, actually, we have succeeded in moving the dial’ [with regard to combatting the dangers of mass surveillance]?”

Greenwald responds as follows:

Well, I mean, the endgame for me as a journalist is very simple, which is to make sure that every single [Snowden] document that is newsworthy and ought to be disclosed ends up being disclosed and that secrets that should never have been kept in the first place end up uncovered. To me that’s the essence of journalism and that’s what I am committed to doing. As somebody who finds mass surveillance odious for all the reasons I’ve just talked about and a lot more, I look at this as work that will never end until governments around the world are no longer able to subject entire populations to monitoring and surveillance unless they convince some court, or some entity, that that person is someone who has actually done something wrong. To me, that’s the way that privacy can be rejuvenated. (Emphasis added.)

In summary, then, Greenwald and similarly-minded journalists would appear to believe that: (1) government mass surveillance programs are both illegal and deeply unethical, violating as they do people’s legal and moral right to privacy; (2) such programs should consequently be discontinued as a matter of both legal and moral principle; (3) by discontinuing such government practices, privacy will be preserved, and perhaps even “rejuvenated,” as an essential legal and moral right.

I shall not attempt to dispute claims (1) and (2) here, for the straightforward reason that I find them to be almost indisputably true. (If you do disagree with them, however, then I urge you to watch the rest of Greenwald’s TED Talk.) That is, I too find government mass surveillance programs to be both deeply unethical and, at least in the United States, unquestionably illegal; and I, too, think that they should be discontinued. Rather, my quarrel here is with claim (3): that is, I do not think that privacy—or, for that matter, other related inalienable rights, such as liberty—can be “rejuvenated” merely by forcing the government to renounce its use of mass surveillance programs.

Why do I disagree with this claim? The answer is simple: for the very reasons that Snowden himself mentions in his book. More specifically, I agree with Snowden’s assertion, made near the end of his book, that an effective global resistance to mass surveillance will require a radical mobilization against not just the government, but also against the private sector and its own, equally tyrannical use of mass surveillance techniques. As Snowden writes:

[I]t becomes ever clearer to me that the American legal resistance to mass surveillance [is] just the beta phase of what has to be an international opposition movement, fully implemented across both governments and [the] private sector. (Emphasis added.) 

Such a claim might well seem surprising to some. After all, it has become fashionable in some media circles to portray Snowden as a libertarian, in the quintessentially American sense of the word: that is, as someone who sees almost ubiquitous government malfeasance, but almost invariably turns a blind eye to the equally pernicious behaviour of private companies. Thus, for instance, in her review of Snowden’s book for The New Yorker, Jill Lepore, a Professor of American History at Harvard University—after excoriating Snowden on a variety of ad hominem grounds (e.g., mocking his allegedly “pale and bleary-eyed” appearance, and even suggesting at one point that he suffers from “arrested development”)—criticizes Snowden for apparently failing to understand that it was private companies, as opposed to the U.S. government, that were primarily responsible for turning Snowden’s beloved, anonymity-guaranteeing internet of the 1990s into the corporatized semi-dystopia that we have today:

Google, Facebook, and Amazon know far, far more about most Americans than the N.S.A. does. But Snowden came to believe that the forces that ruined the Internet of his boyhood were less the forces of libertarianism that left corporations unchecked, giving rise to endless forms of capture, tracking, mining, and manipulation, than the forces of government that, under the expansive authority of the 2001 Patriot Act, made the Internet a place where it was impossible to be unknown and ungoverned. He wanted to end that game.

Snowden, however, explicitly disavows this view in the preface to his book:

If most of what people wanted to do online was to be able to tell their family, friends, and strangers what they were up to, and to be told what their family, friends, and strangers were up to in return, then all companies had to do was figure out how to put themselves in the middle of those social exchanges and turn them into profit. This was the beginning of surveillance capitalism, and the end of the Internet as I knew it. (Emphasis added.)

He continues:

The promise of convenience led people to exchange their personal [web]sites—which demanded constant and laborious upkeep—for a Facebook page and a Gmail account. The appearance of ownership was easy to mistake for the reality of it. Few of us understood it at the time, but none of the things that we’d go on to share would belong to us anymore. The successors to the e-commerce companies that had failed because they couldn’t find anything we were interested in buying now had a new product to sell.

That new product was Us.

Our attention, our activities, our locations, our desires—everything about us that we revealed, knowingly or not, was being surveilled and sold in secret, so as to delay the inevitable feeling of violation that is, for most of us, coming only now. And this surveillance would go on to be actively encouraged, and even funded by an army of governments greedy for the vast volume of intelligence they would gain.

Thus, Snowden does more than simply point out that private companies were primarily responsible for destroying the early, predominantly non-corporatized version of the internet.  He explicitly states that the business model of private companies (“surveillance capitalism,” which Harvard Business School Professor Shoshana Zuboff defines as the inexorable mining, analysis, and reselling of people’s personal data by private companies for profit) is a human and societal menace: it not only turns “Us” into a “product,” but it “inevitably” leads to a (feeling of) “violation” of our very selves.

Such a reference to private companies’ nefarious behaviour is hardly an isolated one on Snowden’s part. Indeed, his book is repeatedly critical of the private tech sector’s machinations—and not only when they pertain to the issue of surveillance. Thus, for instance, Snowden fiercely denounces the way in which, since 9/11, broad swathes of the U.S. federal government have been privatized by “greedy” companies “for whom the federal government [is] less the ultimate authority than the ultimate client;” he despairs at the perverse incentives created by the ‘revolving door’ policy between senior members of the public and private American intelligence community (which in turn leads him to characterize government “contracting” as nothing more than “governmentally assisted corruption”); and he is deeply angered by the various mechanisms by which the federal government offers hidden or implicit subsidies to the private sector at the expense of the U.S. taxpayer (e.g., by paying for expensive background checks on its workers, who soon after passing such checks often take up higher-paying positions at a private company).

However, one comment that Snowden makes in his book about the private sector is, I think, particularly worth dwelling upon. It is a moment precipitated by Snowden coming across a ‘smart’ (i.e., internet-equipped) refrigerator in a Best Buy store:

I was convinced the only reason that thing was Internet-equipped was so that it could report back to its manufacturer about its owner’s usage and about any other household data that was obtainable. The manufacturer, in turn, would monetize that data by selling it. And we were supposed to pay for the privilege. 

I wondered what the point was of my getting so worked up over government surveillance if my friends, neighbors, and fellow citizens were more than happy to invite corporate surveillance into their homes, allowing themselves to be tracked while browsing in their pantries as efficiently as if they were browsing the Web. It would still be another half decade before the domotics revolution, before “virtual assistants” like Amazon Echo and Google Home were welcomed into the bedroom and placed proudly on nightstands to record and transmit all activity within range, to log all habits and preferences (not to mention fetishes and kinks), which would then be developed into advertising algorithms and converted into cash. The data we generate just by living—or just by letting ourselves be surveilled while living—would enrich private enterprise and impoverish our private existence in equal measure. If government surveillance was having the effect of turning the citizen into a subject, at the mercy of state power, then corporate surveillance was turning the consumer into a product, which corporations sold to other corporations, data brokers, and advertisers. (Emphasis added.)

Snowden can, I think, be usefully construed as asking two subtly distinct questions here: (1) Why should we care about government surveillance when private surveillance is just as ubiquitous and pernicious as (if not more ubiquitous and pernicious than) government surveillance? (2) Given that private surveillance is ostensibly accepted by large segments of the world’s population, then why shouldn’t we also accept the fact that the NSA and other government agencies are collecting and storing similarly enormous troves of our data? In other words: If people are apparently happy to allow unaccountable private institutions to spy on them, then why shouldn’t we let the government—which is, at least in theory, a partially accountable institution—do the same?

Interestingly, and somewhat strangely, Snowden never goes on to answer these questions directly anywhere in the book. Nevertheless, I think both questions are worth reflecting upon and, indeed, categorically answering.

The first question can, I think, be fairly easily responded to. We should care about government surveillance for the same reason we should care about, and ultimately attempt to address, other bad things: because they’re bad, and because they’re addressable. (Consider: Should I, as a British citizen, not care about the problem of adult poverty in the United Kingdom simply because child poverty is a similarly serious, if not more serious, problem?) The large-scale illegal surveillance, monitoring, and mining of people’s data is both a legal and a moral crime; for that reason, and that reason alone, one should attempt to address it.

The second question, however, is not so straightforwardly answered. One preliminary, conceptual point worth making, however, is that even if it were true that many people were happy to forfeit their right to privacy by being surveilled by private companies (or by the government), this does not by itself entail that everyone in society should be compelled to accede to such surveillance—in much the same way that many people’s apparent willingness to forfeit their right to free speech should not thereby entail that everyone in society should be compelled to surrender their own free speech rights.

Furthermore, the empirical assumptions underlying the question may be legitimately questioned. In particular, it appears that most people do not, in fact, accept the legitimacy of private (or public) surveillance, but rather are, according to various measures, largely ignorant of it. Thus, a 2016 Pew Poll noted, “When it comes to their own role in managing their personal information, most [U.S.] adults are not sure what information is being collected [by private companies] or how it is being used.” A more recent November 2019 Pew Poll corroborates this, noting that 78 percent of U.S. adults say that they “understand very little or nothing about what the government does with the data it collects”, while “59 percent say the same about the data companies collect”. (Moreover, 63 percent of U.S. adults say they “understand very little or nothing at all about the laws and regulations that are currently in place to protect their data privacy.”) Indeed, such ignorance apparently extends even to senior U.S. policy makers: one famous illustration of this occurred in 2018, when Senator Orrin Hatch (R-UT) unwittingly revealed in a Senate hearing that he understood precisely nothing about Facebook’s business model by bluntly asking the company’s CEO, Mark Zuckerberg, how Facebook makes money:

HATCH: How do you sustain a business model in which users don’t pay for your service?

ZUCKERBERG (pausing briefly): Senator, we run ads.

HATCH: I see.

In addition to ignorance, however, a large number of Americans feel a deep sense of distrust towards both the government and private companies when it comes to issues pertaining to online surveillance and privacy. According to a November 2019 Pew Poll, 79 percent of Americans “report being concerned about the way their data is used by companies”, while 64 percent report the same level of concern about the government’s use of their data (suggesting that, if anything, Americans are more concerned about private surveillance than they are about government surveillance). Furthermore, a large majority of Americans  (57 percent) claim that they are “not very or not at all confident” that “companies follow what their privacy policies say they will do with users’ personal data.”

Any mention of privacy policies, however, inevitably generates the obvious (libertarian) rejoinder: Don’t people agree to privacy policies or “terms-of-service agreements” when they purchase products from private companies, or use “free” services online? And doesn’t this, in turn, imply that they ultimately do consent to being monitored by the private companies whose products or services they use? 

Although it is of course true that, in a de jure sense, people may be said to “agree” to such monitoring, there is, in fact, virtually no coherent sense in which they may be said to “agree” in a de facto one. As the Pew Poll notes, although “97 percent of Americans say they are ever asked to approve privacy policies,” only 22 percent of Americans “always (9 percent) or often (13 percent) read a company’s privacy policy before agreeing to it;” indeed, fully 36 percent of U.S. adults affirm that they “never read a company’s privacy policy before agreeing to it.” Moreover, as the poll points out: 

[T]he practice of reading privacy policies doesn’t necessarily guarantee thoroughness. Among adults who say they ever read privacy policies before agreeing to their terms and conditions, only a minority22 percentsay they read them all the way through before agreeing to their terms and conditions.

More importantly, however, it is worth stressing that even if the desire to read terms-of-service agreements or privacy policies existed among tech users, the actual reading of such terms of service agreements is, at least in any practical sense, impossible. As Zuboff notes in her book, The Age of Surveillance Capitalism:

Scholars point out that these digital documents [“terms-of-service agreements”] are excessively long and complex in part to discourage users from actually reading the terms, safe in the knowledge that most courts have upheld the legitimacy of [such] agreements despite the obvious lack of meaningful consent. U.S. Supreme Court Chief Justice John Roberts admitted that he ‘doesn’t read the computer fine print.’ Adding insult to injury, terms of service can be altered unilaterally by the firm at any time, without specific user knowledge or consent, and the terms typically implicate other companies (partners, suppliers, marketers, advertising intermediaries, etc.) without stating or accepting responsibility for their terms of service. These ‘contracts’ impose an unwinnable infinite regress upon the user that law professor Nancy Kim describes as ‘sadistic.’

Moreover, with regard to privacy policies, Zuboff writes:

Even the former Federal Commission Chairperson Jon Leibowitz publicly stated, ‘We all agree that consumers don’t read privacy policies.’ In 2008 two Carnegie Mellon professors calculated that a reasonable reading of all of the privacy policies that one encounters in a year would require 76 full workdays at a national opportunity cost of $781 billion. The numbers are much higher today.

Indeed, it is largely for these reasons that Zuboff, later on in the book, labels any attempt to read such policies as “a forced march towards madness or surrender.”

In summary, then, the appropriate answer to Snowden’s two questions should be as follows: (1) people should care about government surveillance because it’s bad, and because we can do something about it; (2) people don’t accept the legitimacy of private surveillance (in fact, they are deeply concerned about it) largely because: (i) they don’t know much about it, and (ii) the current institutional and legal framework is set up in such a way as to virtually guarantee that they can’t much know about it. 

There is one other, major difference between public and private surveillance that is worth dwelling upon—one which Snowden has alluded to before, most notably in a much-watched interview with the comedian John Oliver:

OLIVER: Why did you do this [i.e. become a whistleblower]?

SNOWDEN: The NSA has the greatest surveillance capabilities that we’ve ever seen. What they will argue is that they don’t use this for nefarious purposes against American citizens. In some ways that’s true. But the real problem is that they’re using these capabilities to make us vulnerable to them and then saying: ‘While I have a gun pointed at your head, I’m not going to pull the trigger. Trust me.’

Though the analogy here is not perfectly apposite—prior to Snowden’s leaking of the government documents , U.S. intelligence officials categorically denied that it even had such a “pointed gun” in the first place—Snowden’s intended meaning is clear: it is the potential use of our data by the government (in order to manipulate, coerce, and control) which he finds especially troubling. However – and, as we have seen, as Snowden himself suggests in his book—we know that private companies not only potentially engage in such behaviour, but actively do engage in it; indeed, the very soul of their business models consists in monitoring, analyzing, and manipulating their users’ behavior in order to sell them ads. 

This fact is openly admitted to by senior tech insiders. For instance, an Amnesty International report published in November last year (entitled “Surveillance Giants: How the business model of Google and Facebook threatens human rights”) quotes Roger McNamee, an early investor in Facebook and advisor to Mark Zuckerberg:  “The business model depends on advertising, which in turn depends on manipulating the attention of users so they see more ads. (Emphasis added). Or, as Zuboff puts it:

“[Surveillance capitalism is based on] economic principles that instrumentalise and control human experience to systematically and predictably shape behaviour towards others’ profitable ends.” (Emphasis added). 

It is precisely for this reason that, arguably, private surveillance is more pernicious than public surveillance: private tech companies, unlike the government, are not only heavily incentivized to monitor your behavior, but to actively change it as well. (It is of course true that governments, to greater and lesser degrees, attempt to manipulate the behaviour of their citizens. But, certainly in the West, this ability pales in comparison to the power of private firms like Google and Facebook.) Moreover, as the above-mentioned Amnesty report attests, there is a mountain of evidence that such a business model is inherently detrimental to human rights and (more broadly) well-being: as well as violating people’s inherent right to privacy, it leads to increases in stress, a greater inability to concentrate, shorter attention spans, and many other deleterious consequences besides.

As already mentioned, Snowden believes that resistance to mass surveillance will require a radical overhaul not just of the government, but also of the private sector. In fact, at one point in his book he even appears to suggest that what is required is a whole-scale change in the business models of these major tech companies: 

Ultimately, the privacy of our data depends on the ownership of our data [rather than its ownership by private tech companies.]. There is no property less protected, and yet no property more private. (Emphasis added).

But although this idea of “data ownership” is an intriguing one—and one that many (including myself) would regard as necessary—the details need spelling out: What, exactly, would such ownership consist in? What would it entail? Would “ownership” of one’s data be something that one could legitimately sell, or buy? Should, for example, parents “own” their children’s data? What about one’s partner’s? If, say, someone I know happens to see me enter a store one afternoon, can I be said to “own” this datum? If so, how, and in what exact sense? If not, then what distinguishes legitimate forms of data ownership from illegitimate ones?

Snowden, unfortunately, fails to elaborate on any of these questions in his book. Indeed, similar failures of elaboration are, to my mind, the book’s central weakness. One example of this has already been mentioned, when Snowden did not answer the (crucial) questions that he himself effectively raised after seeing the ‘smart’ refrigerator in a Best Buy store. Another is when Snowden explicitly equates, with no argumentation or explanation, prior conceptions of liberty with our contemporary understanding of privacy (“that [which] during the American Revolution was called ‘liberty’ [is] during the Internet Revolution… called ‘privacy’”). Another error, arguably, is Snowden’s failure to explicitly and directly compare and contrast the perniciousness of public and private surveillance anywhere in his book. (We know that he thinks both forms of surveillance are bad; but which, for him, are worse? And why?) Finally, to my mind, the book lacks a sufficient discussion of the extent to which, at least when it comes to private surveillance, privacy is really the core liberty being threatened, as opposed to, say, freedom of attention (as, e.g., James Williams and others have argued).

Nevertheless, the central point remains: Snowden is not the naive American libertarian that many in the media and academia have often assumed him to be. Rather, he is a deeply thoughtful individual who is well aware that “surveillance capitalists” were responsible for destroying the internet of his youth; who is more than familiar with the fact that private companies, through their relentless search for data capture and analysis, are inexorably turning us into a “product;” and who is obviously deeply concerned about the fact that such companies control us, manipulate us, and, indeed, even “violate” our innermost sense of who (and what) we are. More generally, and perhaps most crucially, Snowden is highly conscious of the fact that both the public and the private sector currently pose serious and imminent threats to privacy and freedom. 

Snowden, in short, has a lot to say of interesting things to say about surveillance in his book—and not only (as one may, perhaps, have expected) about government surveillance. Rather than simply slander or unthinkingly lionize him, I suggest that we do something else entirely; something which, in my opinion, too many commentators, journalists, and indeed citizens have for too long refrained from doing: we should actually listen to him. 

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