Cool term, huh? Liquid surveillance. I learned it from Neil Richards’ 2013 paper “The Dangers of Surveillance” in the Harvard Law Review (thanks to Jesus Olmo for the link); it’s a useful label for that contemporary panopticon in which “Government and nongovernment surveillance support each other in a complex manner that is often impossible to disentangle.” My recent IAPP talk looked at privacy from a biological point-of-view; I’d recommend Richards’ overview for its legal and historical perspective on the same subject.

But while we come at the issue from different directions, both Richards and I disagree profoundly with David Brin. We both think that privacy is something worth protecting.

As a number of you have noticed, the good doctor took exception to my Scorched Earth talk of a while back. We’ve since gone back and forth over email a few times. David was miffed by my failure to give him a heads-up when I posted my transcript, and fair enough; that was thoughtless of me. He also objects to my simplistic “rainbows and unicorns” caricature of his transparent society. Also fair enough(1), these days anyway; the dude does seem to have changed his tune since back in 2003 when he expressed the hope that the authorities would “let us look back”. Nowadays he takes the more defiant stance that we’ll fucking well look back whether they “let” us or not.

My argument wasn’t so much that we shouldn’t look back as it was that the silverbacks would come down hard on us when we did. I wholeheartedly endorse David’s current perspective, even though he sometimes gets so caught up in his own heroic defiance that he has an unfortunate tendency to describe the rest of us as mere “whiners” in comparison.

Quibble Appetizer

He uses the word repeatedly— here, when he engages me, and here, where he takes on the URME line of surveillance-foiling full-face masks. Privacy advocates— hell, people who walk down the street wearing masks— are just a bunch of moaners who keep “whining ‘don’t look at me!‘”

I think Dr. Brin might be protesting a bit too much. Has he ever worn a mask in public, or (like Ladar Levison of Lavabit) given the finger to authorities who show up with their hands out? These are not craven acts. Wearing a mask in public is the very opposite of hiding: it doesn’t avoid attention, it draws it. It’s not just a middle finger raised to a gauntlet of cameras; it’s an invitation to any badge-wearing thug within eyeshot, even in those places where wearing a mask isn’t outright illegal. It’s about as whiney, moany, and hidey an act as— well, for example, as getting out of your car during a protocol-violating border search to ask what’s going on. (Or as David puts it on his blog, “scream and leap”.)

I’m quibbling, though. So the dude slants his semantics for dramatic effect; I’m Mr. Unicorns-&-Rainbows, so I can’t really complain. Besides, I think Dr. Brin and myself are pulling in the same direction. We’re both outraged by abuse of power; we both regard our governments as— if not an outright enemy— an adversary at least, a group organism whose interests cannot be counted on to align with those of its citizens. We both think it needs to be resisted (and if we don’t, I’m sure David will set me straight, because this time at least I’ve given him a heads-up.)

I still think he’s dead wrong about privacy, though.

The Trouble With Transparency

I’ll give him some points right out of the gate. The use of cell phone cameras has depressed the number of incidents of police misconduct, has even resulted in charges now and then. That’s a positive development.

I don’t know how long it will last. Laws written by cats have a way of adapting when the mice figure out a workaround. Sneak cameras into factory farms and you may get public outrage, grass-roots momentum, the passage of more humane animal-treatment laws. Then again, you might get laws that outlaw undercover journalism entirely, redefine anyone who documents the abuse of agricultural animals as a “domestic terrorist”. Record video of police assaulting civilians and you’ll certainly get a lot of front-page coverage for a few days. You may even get public enquiries and actual charges, at least until the next Hollywood celebrity overdoses on horse tranquillizers and moves the spotlight.

But how much of that theater results in conviction? The Mounties who killed Robert Dziekański in the Vancouver International Airport got off the hook, despite video footage of their actions. James Forcillo is back on the job after repeatedly shooting a crazy man to death in an empty streetcar, despite hand-held recordings from multiple angles establishing that the victim was not a threat. (He’s since been charged; conviction, in my opinion, is unlikely.) And the cops who vandalized, robbed, and assaulted bodega owners in Philadelphia were never even charged, despite video showing them cutting the local securicam wires before partying down.

Of course, anyone can google for newspaper headlines showing this corrupt cop or that crooked politician getting away with murder. That’s called arguing by anecdote and— while the anecdotes are valid in and of themselves— you can’t hang rigorous statistics off that kind of cherry-picking. My sense is that we’re in an arms race here; the authorities are still coming to terms with the presence of ubiquitous civilian surveillance at street level, the cops haven’t quite internalized the fact that they might be suddenly accountable in a way they never were before, but I expect countermeasures to these countermeasures. (Which, now that I think of it, serves as a rejoinder to David’s suggestion that I’ve never heard of Moore’s Law. I confess the term does sound familiar— but I think it applies to both sides in the struggle, so rather than a monotonic climb to a transparent utopia, I see something more cyclical. Maybe that’s just the ecologist in me.) Brin himself points to a patent that would let the authorities shut down every inconvenient cell-phone and tablet within reach (interestingly, he proposes a response similar to my Cylon Solution from back in March). I expect that generally, those in charge will figure out how to put back whatever rocks we manage to turn over.

But that’s just my sense of things, and I could be wrong. So let’s be optimistic and grant the point. Let’s assume that our cell phones and skeeterbots permanently level the playing field down here at street level, that cops no longer get away with assaulting civilians whenever they feel like it, that our masters and their attack dogs finally have to treat us with a modicum of respect.

It will be an improvement. Not a game-changing one. Because even in this optimistic scenario, society is only transparent down here on the street, where the cell phones are. Elsewhere, the glass in the windows is all one-way.

Take a Man’s Castle, for starters. Even Brin draws the line at domestic privacy: his Transparent Society ends on our doorsteps, explicitly allowing that our homes, at least, will remain unsurveilled. It may have seemed a plausible extrapolation back in the nineties, before Moore’s Law and Surveillance Creep produced such a litter of unholy love-children: the television in your bedroom that reports your viewing habits and the contents of your thumb drives back to corporate headquarters. The back doors built into every Windows operating system from Xp on up. The webcam that counts the people in your living room, so that it can shut down your TV if it sees four faces when your subscription to Game of Thrones is only licensed for three. And of course the government, lurking overhead like a rain-swollen overcast sky, turning all of corporate America into its bitch with a wink and a National Security Letter (and even an actual warrant on rare occasions). The Internet of Things has barely even got off the ground, and these are only a few of the intrusions we’re already facing.

And don’t even get me started on LOVEINT…

David, dude— it was a beautiful dream back in 1998, and how I wish it had turned out that way. But do we have back-door access into Dick Cheney’s web-surfing habits? Did I miss some memo about the White House camera feeds going public-domain last week? That giant supercomputer complex going up in the Utah desert: when it goes online, will they be using it to help mothers keep track of their wandering children? Do we know what books David Cameron keeps on his Nook, do we know what passages of Mein Kampf he tends to linger over?

Will any of these insights be within our grasp in the foreseeable future?

And that’s just in people’s homes, in the private little bubble that we all agree should remain sacrosanct. Is it better when you step outside, and lose not just the reasonable expectation of privacy but of anonymity to boot? If you were attending a rally to protest— oh, I dunno, illegal drone strikes on foreign nationals— would you feel not the slightest chill when informed by one of our Boys in Blue that yes, you’re perfectly free to exercise your right to public dissent— but before you do we’re going to take down your name and address and bank details and employment history and phone records and any past interactions you may have had with Law Enforcement stretching back into childhood? Would it make you feel any better to know that no Boys in Blue were exploited in the making of this film, that all those data— and orders of magnitude more— were collected by an unmarked autonomous quadrocopter talking to a computer in the desert?

Is it okay that someone without any relevant qualification can access psychiatric records of people in other countries, the better to arbitrarily restrict their freedom of movement? Is it acceptable that people who’ve never been convicted of any crime— who’ve never even been charged with anything— have lost jobs, been turned down for educational programs, been denied travel, all because the police keep records of everyone they come in contact with for whatever reason, then hand those data out at the drop of a hat? Would all that somehow be redressed, if only we had guerrilla cellphone footage of some asshole behind a desk stamping REJECTED on a job application?

Don’t count on enlightened legislation to turn the tables. The original surveillance program that grew into PRISM and Stingray was regarded as illegal even by many in the Bush Administration; the White House went ahead and did it anyway. None of those folks will ever be held accountable for that, any more than they’ll be charged with war crimes over the waterboarding of prisoners or the dispatch of flying terminators to assassinate civilians without due process.

I have a friend who practices law in California. The last time we hung out she told me that what disillusions her the most about her job, the thing she finds most ominous, is the naïve and widespread fairytale belief that the law even matters to those in power— that all we have to do to in order to end government surveillance is pass a law against it, and everyone will fall into line. It’s bullshit. Only mice have to obey the law. The cats? They can take it or leave it. (I passed that message on to Canada’s Privacy Commissioner when we chatted after my IAPP talk. In response, she could only shrug and spread her hands.)

The damnable thing about David Brin is, he’s right: If the watchers watch us, we should damn well be able to watch them in turn. Where the argument fails is in his apparent belief that both sides will ever have comparable eyesight, that an army of cellphone-wielding Brave Citizens (as opposed to the rest of us moaning whiners) is enough to level the playing field. Yes, Moore’s Law proceeds apace: our eyesight improves over time. But so does theirs, and because their resources are so vastly greater, they will have the advantage for the foreseeable future. (Of course, if someone’s planning on crowd-sourcing their own supercomputer complex in the desert— complete with legislation-generating machinery to legally protect its existence and operations on behalf of the 99%— let me know. I’d love to get in on the ground floor.)

Don’t get me wrong: I agree that we should look back whenever we can. Even when the gorillas beat the shit out of you. Looking back is necessary.

But it is not sufficient.

The Opacity Alternative

If we can’t level the field by spying on the authorities, the obvious alternative is to try and limit their ability to spy on us. Neil Richards argues not only that privacy can be protected but that it must be, because personal privacy is essential to a functioning democracy. His argument seems compelling to me, but I’m not a legal scholar (and I’m not entirely sold on the whole democracy thing either), so I’ll leave it to Richards to defend Richards. Brazil, at least, seems to be on board with his outlook, given the recent passage of their “Internet Bill of Rights“.

For my part, it just burns my ass that these fuckers arrogate unto themselves the right to watch me from the grasses. I don’t like being targeted. I don’t like being prey. So it resonates when Edward Snowden tells us that we don’t have to ask the government to give us back our privacy: we can take it.

Brin’s response is: Tough noogs, Bub. The Internet Never Forgets. You can’t burn data to the ground when they’ve already been copied and recopied and stored in a million backup repositories throughout a network designed to remain operational after a nuclear war.

He’s got a point.

My porn-surfing habits from 2011 are probably immortal by now. I’ll never be able to disown this blog post no matter how many religious conversions I experience down the road. CSIS probably knows all about that little sniper reticle I superimposed on the forehead of a cat-cuddling Stephen Harper last decade. Those ships have sailed.

But that doesn’t mean we have to keep launching new ones.

There’s no shortage of online posts listing the various ways one might protect one’s privacy, from asymmetrical haircuts to sticking your cell phone in a Faraday Cage. Some are really obvious: if you don’t want your TV spying on you, don’t get a smart one(2). (Dumb TVs are cheap these days— we just bought one a couple of weeks back— because everyone’s clearing their warehouses to make room for new devices that come with HAL-9000 as standard equipment. When you can’t get a dumb TV any more, go dumber: my last 47-incher was basically just a monitor with a bunch of input jacks.) Keep your deepest secrets on a computer that’s completely isolated from the internet. Encrypt everything. Stay the fuck away from Facebook.

Start a Cylon Solutions boutique that specializes in backlash technology, machinery too dumb to be used against you(3). Start a franchise. Make it a thing. Hell, if vinyl staged a comeback decades after the entertainment industry banished it to the wilderness— if analog tech has become cool again for no more than the audio aesthetic— how much more potential might there be in a retro movement founded on the idea of keeping Harper and Obama out of our bedrooms?

Of course, not everyone cares enough to put in the extra effort. I was ranting to a friend the other day as she booted up her smart TV, ran down the usual list of grievances and suspicions and countermeasures. She listened patiently (as you know, I do tend to go on sometimes), and finally drawled “You know, your arguments all make sense, but I just don’t really care.” A lot of people, seduced by the convenience of the tech and unwilling to make their own soap from scratch, are indifferent to the panopticon. I wish them well.

But to many of us the Snowden revelations have provoked a backlash, a renewed interest in drawing a curtain back across our lives. That backlash seems to be provoking an uptick in privacy measures that are actually easy to use, convenient enough for even the surveillantly-indifferent to embrace. Cyberdust is a free app that encrypts and anonymizes your communiqués, then burns them to the ground after they’ve been read no matter how often David Brin weighs in on the impossibility of such a feat (although you may want to stay away from Snapchat for the time being). Chrome’s new “End-to-End” encryption add-on has got so much recent press it’s barely even worth embedding a link. (Let us take a moment to reflect on the irony of Google in the role of privacy advocate.) And Snowden’s gift has also weakened the nonelectronic channels through which government spying often passes— the security letters, the secret back-room demands for data which corporations were only too happy to turn over before their clients knew what they were doing. Now it’s out, and customers are deserting in droves; see how Apple and Facebook and Microsoft have seen the light at last, now that their bottom lines are threatened. See how they’ve all pledged to give up their evil ways and join the Occupy movement. It’s not just Teksavvy and Lavabit any more; now even the lapdogs are showing a couple of teeth. (Whether they actually bite anything remains to be seen, of course.)

There may even be some utility yet to be squeezed out of direct legislation, notwithstanding my skepticism about cat-authored laws. Sure, if you tell the spooks they can’t spy on you, they’ll just do it anyway and lie to Congress about it afterward. But what if you pass a law that cuts their budget— reduces their allowance so they can’t afford to spy on you, whether they’re allowed to or not? We’re about to find out, if the House of Representatives’ recent amendment to a Defense appropriations bill makes it past the Senate.

If worst comes to worst, just break the law. It serves them, not us, and they can’t put all of us in jail.

Yes, they are vast and mighty and all-seeing, and we are small and puny, but we are scattered and so very many in number. We can’t keep the spooks out if they really want us— but they don’t really want most of us. The only reason They See All is because the technology makes it so damn easy to target everyone, to err on the side of overkill. Tangle up that driftnet enough and cost:benefit changes; at some point they’ll go back to using longlines.

There are things we can do, is what I’m saying. It’s what Edward Snowden is saying, too. It’s what Neil Richards and Bruce Schneier and Ann Cavoukian and Micheal Geist are saying. It what activist organizations like the Electronic Frontier Foundation and national governments like Brazil and a myriad others are saying. We’re saying we can burn things, and here’s how. We’re saying we can take it back.

We’re saying that David Brin is wrong.

About this, anyway. Because— and I’ll say it again— I am totally on board with the way the man rallies his troops to join battle on one front. What I diss is his unconditional surrender of the other.

To me, that’s the very opposite of being a Brave Citizen.

Deleted Scenes and Extras

In a way I believe Ed Snowden’s inspirational example has misled us, misled me. In hindsight I think I was wrong to write that he “looked back”— as though he was one of us, just some guy on the street staring at the gorilla. He wasn’t. He was the gorilla; he was a trusted part of that network, he was Agent Smith, he was one of the watchers. That’s the only way he had access to all that information in the first place: not through “souseveillance”, not by looking back, but simply by being a gorilla who happened to grow a conscience. We can’t aspire to follow his example because no matter how hard we stare, we will never enjoy the access he once had.

In a way, that doesn’t even matter—because whether Snowden was a true metawatcher or just a gummint voyeur plagued by a sense of ethics, the real metric of progress is whether the Society has grown more Transparent in the wake of his revelations. Will the next Ed Snowden have an easier time, or a harder one, casting a spotlight on the powerful? Does anyone really believe that the keyholes he peeked through haven’t since been plugged?

Obama, finally exposed, utters mealy-mouthed platitudes about transparency and accountability while continuing to lie about PRISM and Stingray and all those other programs with Le Carré names. Debate is suddenly “welcomed”, our leaders are suddenly willing to contemplate new restraints on their unbridled power. And yet their minions continue to lean on local law enforcement to keep their yaps shut about ongoing surveillance efforts, rewarding them with AVs and machine guns for their cooperation. And over in that dark corner, Thomas Drake— a conscience-afflicted NSA employee who leaked unclassified documents to the press concerning the unconstitutional and illegal surveillance by the US government on its citizens— found himself charged with espionage by the simple expedient of taking unclassified documents found on his computer, reclassifying them after the fact, and then laying charges for possession of retroactively-forbidden fruit.

Think about that. If the state doesn’t like what you’ve done, it will reverse-engineer reality to make you a criminal. The law itself becomes quicksand, rewritten on the fly to favor the house: more than once US courts have thrown out suits alleging violation of amendment rights simply because the programs committing those offenses are “state secrets”. If the court doesn’t know a program exists, it can’t pass judgment on what that program may have done to you; and if the program is secret, the court is not allowed to acknowledge that it exists.

In the light of such Kafkaesque rationales, it’s hard to avoid the conclusion that criminality may ultimately be inevitable to anyone who truly values their privacy. Even if your countermeasures are legal today, they may not be tomorrow. If you’re not a criminal now, you might be then.

Might as well say Fuck the Law, and take your countermeasures. Avoid the rush.

(1) Although seriously: artistic license, right? A cheap laugh before a cold audience. I say it was worth it.

(2) You could always get a smart TV, put tape over its eyes, and keep it isolated from the web— but how long before the onboard AI simply refuses to run your favorite shows until you “confirm your identity” through an internet link?

(3) Brin urges his own Brave Citizens to adopt similar tactics, albeit to prevent the cops from protecting their own “privacy” rather than to further the protection of your own.