Date: 12/13/16

“Hey – I have something important to share with you. Classified information that the public has a right to know about. But if anyone finds out I’m the one who leaked this information, I’m putting myself, my career, and my family at risk.”

These might be the considerations of someone who feels compelled to reveal institutional corruption or injustices that the rest of the world is not yet aware of. But in order to do that, this inside source has to be able to have a private conversation with someone they feel they can trust. 

“Every social movement started with a private conversation. Somebody somewhere turned to somebody else, and said, I don't think slavery is a good idea. That's how you start movements,” said Cindy Cohn, executive director of the Electronic Frontier Foundation

But having an unmonitored conversation isn’t as easy as it used to be. Our digital histories can reveal who we talk to on the phone, via email, or in person. This data is going to our cell phone companies and Internet service providers – but that doesn’t mean it’s unconditionally protected. And there’s a lot we don’t know about how governments may be using information they collect. 

“I think it's really important to create and maintain [a] zone of protection for individuals,” said Jennifer Granick, Director of Civil Liberties at Stanford’s Center for Internet and Society. “In a world where everybody's data is so transparent, we're really at risk of losing that.”

When the government is interested in your digital history, it can sometimes subpoena  companies to hand over that data without informing you first. Even if you think you personally have nothing to hide from the NSA, government overreach can affect people in your community. Without the ability to keep some conversations private, whistleblowers and inside sources can’t reach out to journalists as easily as they could in the past. And there are dangers for democracy at large as it becomes harder to hold powerful institutions accountable.

Before the era of big data, a would-be source could send an anonymous note to a journalist asking to meet in a dark alleyway. If the journalist burned the note and no one saw them together, there was no evidence of the meeting. When the government wanted to prosecute this anonymous source, threatening the journalist with jail time was the only way to get a source’s name.

But if reporters refuse to testify today, their digital shadow can still reveal that information. In other words, it’s becoming significantly harder for journalists to protect their sources.

In an attempt to counterbalance this shift in power, a nonprofit called Freedom of the Press Foundation is trying to create a safe digital space for journalists and whistleblowers to talk. Executive Director Trevor Timm told us about SecureDrop, an application that allows sources to reach out to news organizations without leaving behind a digital trace. 

Having to use private servers, encrypted browsers, and the SecureDrop application to keep conversations private is a byproduct of our love for smartphones and the Internet. Government digital surveillance is piggybacking on the data consumers willingly hand over to tech companies. And the reason tech companies are able to collect such comprehensive data about us is in the first place is because their products have our near-constant attention. 

We’ll be investigating both the psychology and the business of quantifying attention on the next episode of Raw Data. 

Isha Salian

Additional episode credits:

Raw Data theme music – “From the Outset,” Nick Carlozzi


LESLIE CHANG: Welcome to Raw Data. I’m Leslie Chang.

MICHAEL C. OSBORNE: And I’m Mike Osborne. Today’s episode: Data Confidential.

CINDY COHN: If you're outside of the mainstream of thought, and you're trying to organize things, you're trying to make the world a different place, you understand the need to have a private conversation, and

...that to me, is why the Constitution cares about this. It's not really about individualized lives. It's about the necessary conditions for a functioning democracy.

MCO: That was Cindy Cohn, executive director of the Electronic Frontier Foundation, which is a civil liberties group in San Francisco. We met Cindy in our last episode, when we were exploring the value of big data and what it might mean for the future. One of the things we talked about with Cindy is the loss of privacy that comes with collecting big data. Cindy and her organization worry about what this means for free speech – including our ability to have unmonitored conversations.

LC: Now, just to step back a second, there is a big and important privacy vs. security debate right now – the issue is usually framed in terms of how much individual privacy we’re willing to give up to the government in exchange for safety and security. This is a topic we plan to return to later this season, but for now in this episode, we want to spend time just thinking about the VALUE of privacy as a principle. Why should we care so much about it?

MCO: Often when we think about privacy, it’s really hard to think beyond ourselves, as individuals. Obviously, we all have embarrassing stuff we’d prefer everyone NOT know about. Or, maybe we don’t feel like we have all that much to hide, so we just don’t think much about it. But privacy is about more than just our own personal insecurities. It’s also about having space to criticize the status quo, and the freedom to speak truth to power.

LC: As a constitutional lawyer, Cindy sees the right to a private conversation as fundamental to the evolution of a healthy and free society.

CC: I think if you reduce privacy to an individualized decision – do I need privacy? – you're not going to protect privacy very well.

How do we live in a world where people have control over their government, over the decisions of their lives? The way that they do is they have to have a zone of privacy, in which they can talk. Every social movement started with a private conversation. Somebody somewhere turned to somebody else, and said, I don't think slavery is a good idea. That's how you start movements.

But if we take away people's privacy, if we take away people's ability to have private thoughts, private ability to investigate, the ability to pick a book up off the shelf and read about something that might be transgressive, learn about things that are not what the mainstream people want you to learn. If we make that a dangerous thing to do, I think we're losing something really important. We're losing something really important not just individually, but as a country and as a world.

LC: Concerns and reporting about excessive digital surveillance have been simmering under the surface throughout much of the last 15 years. But of course the watershed moment was when Edward Snowden blew the whistle on a number of government surveillance programs.

MCO: Someone who had been focused on surveillance long before the Snowden revelations is Jennifer Granick – she’s the Director of Civil Liberties at Stanford’s Center for Internet and Society. Jennifer is about to publish a book called American Spies, which traces the growth of surveillance in the United States.

JENNIFER GRANICK: After people learned about Edward Snowden's revelations, there were a couple of big stories that captured the public's imagination and captured the news cycle for a while. But, if you're a surveillance nerd like I am and you paid attention to all the revelations, there were both more stories and there was a big picture. I wrote the book because I wanted people to understand how deep this surveillance society goes in the United States and what the bigger picture was. Just so people would know what we're up against.

LC: Snowden himself is a lightning rod – to some, he’s a hero, to others, a traitor…. Regardless of where you come down, the undeniable reality is that he did expose a system of surveillance that confirmed many people’s fears.

MCO: I really liked your discussion in the book where the debate about Snowden has, it seems like that you really wanted to make a case that too much of the conversation has focused on the man himself and whether or not he is a traitor of a hero and not enough about what was revealed as a result. Can you elaborate on that point?

JG: Yeah. Many people came forward and tried to get the public to understand what Snowden wanted them to understand before Snowden. Those people were arrested, were fired, were vilified, were ignored and the thing that made Snowden's revelations different was that he brought hard copies with him. He had documents that backed up what he and these other whistle blowers had been saying. Sort of the typical response is, well, we're going to shoot the messenger and there was a lot of effort made to malign Snowden. I think that's sort of a page from the playbook, but it ultimately isn't important. I think that the public has been very fortunate that Snowden and the other people who have come forward have been as thoughtful, as articulate, as precise as they have been. I think the ultimate thing is now that we have this information, that's what we have to deal with.

MCO: The details of the Snowden revelations are too extensive and complicated to summarize here. But certainly some of the fallout revealed that a significant amount of information is being collected on ordinary Americans.

JG: That effort was aided by technology, by changes in technology. It's very hard to do massive surveillance when everybody is talking on the phone, because you need to listen in and that takes forever, you can speed it up a little maybe if you have a recording, but you're doing it in real time. If you're talking about text, computers can process an immense amount of text, emails, SMS messages and voice to text now that we can do that, computers can really process an immense amount of this. It makes this kind of massive surveillance, very expansive surveillance actually feasible. Sometimes not just feasible, but cheap and sometimes not just cheap, but sometimes cheaper to collect everything and try to datamine it than it is to actually figure out who you really want to be listening to.

LC: Civil rights advocates like Jennifer & Cindy are trying to make clear how this poses a danger, even to normal law-abiding citizens.

JG: I think most people probably think, yeah the government probably over-collects information a bit, but I'm not doing anything wrong, or I'm not doing anything wrong enough, so they're probably not looking at me. They don't understand that that calculation is no longer true. Because it's not expensive to look at any of us anymore. It's very cheap to look at us, so we don't have to have a reason. I'm confident that the police aren't going to come break into my house unless they have a reason, because that's just expensive and dangerous. But you can't have that confidence anymore about people looking into your data or reading your emails, or even listening to your phone calls because computers can do all that stuff now for free. Once people begin to understand that there is no disincentive to examine us and we need to create a disincentive through technology or through law or both to ensure that we're not spied on for no good reason, I think we’re capable of doing that.

LC: Surveillance can feel abstract. The whole point is that you’re not supposed to notice it. But if live in fear of a watchful eye, there’s a psychological effect that can have real consequences for free speech in society. Think about the importance of protected speech in the context of journalism. Often we find out about institutional corruption through an insider – a whistleblower or a source who wants to expose wrongdoing and goes to a reporter in order to bring the issue into the public consciousness.

MCO: So try and put yourself inside the head of whistleblower for a minute. Pretend you’ve discovered something inside your company or your organization that you feel the public has the right to know about. And you also have good reason to believe that if you try to persuade your superiors to take appropriate action, you’ll be ignored or even suppressed. Before you blow the lid on the whole thing, you may want to weigh out the value to the public versus the risks to your career or your family. You may not have perspective on just how newsworthy your story actually is.

LC: All of this speaks to the importance of being able to have private conversations. But, in the era of big data, it might be really hard to find a safe place to talk. Journalists are losing their ability to have confidential conversations with would-be sources.

MCO: There’s a non-profit organization in San Francisco called Freedom of the Press Foundation, whose mission is to support public-interest journalism. Leslie and I recently visited their office, where we met Trevor Timm.

TREVOR TIMM: I'm the Executive Director of Freedom of the Press Foundation, and a columnist who writes about national security, privacy and free speech for The Guardian.

LC: To illustrate how surveillance can impact journalists, Trevor told us a story about Pulitzer prize winning reporter James Risen. In the mid 2000s, Risen published a book that included a chapter about a secret CIA operation, and as a result, he started receiving requests from the Justice Department to reveal his source.

TT: James Risen was facing the subpoena for almost seven years. He was actually about to go to jail pretty much the week he was supposed to testify, or be held in contempt of court, the government actually dropped the subpoena. The reason that they dropped the subpoena, is that…

...they actually ended up getting James Risen's phone records, his email records, his financial records, his travel records, and were able to paint this very detailed picture of where James Risen had been, who he had talked to, when he had talked to them. With this information, they ended up convicting one of his sources, or alleged sources, named Jeffrey Sterling, who is now serving a prison sentence.

LC: In the end, federal prosecutors who were leaning on James Risen were simply able to use his data trail to figure out who the source was.

MCO: Think about what this represents. If you’re a journalist and you have an inside source with a story, you now have to worry about your digital history. While freedom of the press is protected in the United States, the rules around gathering information are much less clear. News outlets have a lot of latitude to publish stories. But what about the process of developing a story?

TT: There has been a concept for decades now called Reporter's Privilege. I think when we generally think about the first amendment we think that journalists aren't allowed to be censored, which is certainly true, but the news gathering process is often just as important as the publishing process for journalists. And so Reporter's Privilege essentially says that reporters should not be forced to reveal their sources in the court of law. That they should essentially have the same privileges that doctors and patients have, or that lawyers and clients have. This has been a controversy for over 40 years.

LC: There have been multiple court cases, and each state has a different level of protection, resulting in a patchwork of laws across the US. – But at the federal level:

TT: Long story short, [cut to 14:58] The federal government does not believe that there is a right for reporters to protect their sources in the court of law.

LC: Journalists has to earn the trust of their source, which is why it’s so important that reporters working on high impact stories are willing to go so far as to go to jail to protect their sources. But one of the lessons of the James Risen saga is that your digital history can betray you

MCO: Actually, this is one of the reasons Edward Snowden was unique. He had enough technical skills that he knew the steps he needed to take in order to hide his intentions and actions from the authorities.

TT: The classic story about how the Snowden revelations happened is that Edward Snowden is a security expert, and was begging Glenn Greenwald, a reporter at The Guardian at the time, and one of our board members, to set up email encryption. Email encryption is incredibly difficult and annoying to set up. Glenn Greenwald just didn't do it.

Edward Snowden ended up finally giving up and going to Laura Poitras, another one of our board members, who actually knew how to use email encryption. From there, he started talking with Laura, and then Glenn, and the rest is history. The point was that this never would have been able to happen if it wasn't for Edward Snowden's high level to technical knowledge.

MCO: The Snowden revelations wouldn't have been able to happen if it weren't for his technical know how.

LC: An ability to cover his tracks, basically.

TT: Exactly. He knew exactly what the government's capabilities were, and knew how to protect himself. He was able to get all this information to the reporters. Not everybody has that very deep level of technical knowledge.

MCO: It is now more difficult than ever for would-be sources to find safe places to talk. So Trevor and the Freedom of the Press Foundation have developed a product called SecureDrop. Basically it’s an application designed to help whistleblowers and other insiders reach out to journalists.

TT: And so what Secure Drop tries to do is lower the bar so that even non-technical people can use encryption and anonymity tools to send information to reporters. Once the Snowden revelations happened, naturally a lot of news organizations realized that they had to start upping their game, and that they wanted the next Snowden. The most natural way they could do so would be to install Secure Drop. Now Secure Drop's in about three dozen news organizations worldwide, including the Washington Post, The Guardian, The New Yorker, Toronto Globe and Mail, ProPublica, The Intercept, CBC, Gizmodo. The list goes on and on. Actually our waiting list is almost double the amount of news organizations that are currently using it.

LC: Every news organization that uses SecureDrop has to have their own private server – that way if government agencies want information off that server, the barrier to acquire it is higher. It gets a little technical, but say you’re a news organization and you use a third party server, one that’s not your own. According to Trevor, the government doesn’t believe it has to notify you if it subpoenas data from a 3rd party provider like Amazon or Google.

MCO: Another feature of SecureDrop is that it scrubs metadata. That means it’s not tracking when and where people are using it. Now, journalists and news organizations using SecureDrop actually do need some technical training, but Freedom of the Press Foundation designed the interface to be as simple as can be.

TT: We try to make it as easy as possible on the sources, because those are the people what we can't train, we don't know who they are, and they're impossible to get to. Really the only thing a source needs to know how to do is go to a news website. Usually the news organizations have like a little icon on their front page.

MCO: The source also needs to download the Tor browser, which hides your IP address and browsing history.

TT: From there it's just like any other contact page on a website, except you're not entering your email address. You can upload documents. You can write notes. You can actually even check back later.

LC: Technologies like SecureDrop are increasingly necessary as our digital trails make our lives essentially an open book. Now, eight years ago, privacy advocates had high hopes that President Obama would take this up as an issue. After all, he had been a constitutional law professor. But, according to Trevor....

TT: The Obama administration has actually prosecuted more leakers and whistleblowers that have come to journalists than all other administrations combined.

It's really been one of the most disappointing aspects of the entire Obama administration, because actually Senator Obama, when he was running for the presidency in 2008, actively talked about how he wanted to bring transparency and accountability to government. How he wanted to protect whistle blowers. How they were going to be the most transparent administration ever. Unfortunately, when he got into office, he reversed course on a lot of those issues. Not only reversed course, ended up being a record setting president when it came to prosecuting whistleblowers and leakers.

MCO: Now to be clear, for Trevor this isn’t about political party. Even if you’ve been a supporter of President Obama, it’s the principle that matters. And Trevor told us he has deep concerns about how journalists and whistleblowers may be targeted under our next president, Donald Trump.

TT: We know that Donald Trump wants more surveillance powers. We know he hates the press. We know that he's, even at his Florida resort, listened in to phone calls secretly of his employees. We know he has the penchant for taking this to the next level. And my real fear is that leaked prosecutions and surveillance of reporters, that will reach a much higher high than it did during the Obama administration, when it was already too high. That it really could usher in a very dark era for journalists who are just trying to do their job.

LC: Ultimately, the ability to have a private conversation – whether that’s between journalists and sources, or between individual citizens who see something in society that they want to change – that constitutional right is vital to our democracy. As Jennifer Granick stresses in her book, that is why privacy is at the core of social progress.

JG: I think that the problem is a balance of power between our government and ourselves as individuals and the idea that we have a right and really a responsibility to live part of our lives unobserved and that that is the source of political change, that that's the source of individual freedom and personal development. If you had perfect knowledge, if government could find out what they wanted about you when they wanted, we wouldn't have had the Civil Rights movement, we wouldn't have had the anti war movement, we wouldn't have gotten rid of our laws against sodomy. We wouldn't have had the kind of social development that we've been able to have. I think it's really important to create that and maintain that zone of protection for individuals. In a world where everybody's data is so transparent, we're really at risk of losing that.

MCO: A truism of history is that we often have a hard time seeing discrimination with clear eyes. Whether it’s Jim Crow laws or marriage rights for same-sex couples or women’s suffrage, today we look back on previous generations and wonder how they couldn’t see the injustices staring them in the face.

LC: The next generation may look back on today and feel horrified by the criminal justice system, or corruption in the financial sector, or another issue that hasn’t even been exposed yet. Whatever the injustice, free speech is at the heart of being able to identify and talk about the issues.

MCO: Still, the current level of surveillance would not be possible if we weren’t so infatuated with smartphones and the Internet. It’s important to remember that we’re not directly handing our data to the government. Surveillance programs piggyback on consumer products. And it’s not like tech companies have set out to violate our sense of privacy.

JG: They want to basically make money. I love these products, I am an avid Facebook user. One of the most important services I have is my phone tells me when I'm near the grocery store and reminds me when I need milk so my children can eat breakfast in the morning. That only happens because of ubiquitous tracking. I understand that I am living by the sword and dying by the sword a bit too. For me, the companies are not the problem. They are providing us with services that we are participating in and that can be a conduit for information going to the government without a warrant, without due cause. That to me is the sticking point right there, where we say okay they're collecting this information, we've given them the information, we've given them the information the companies and information for a particular purpose and now the government is trying to capitalize on that to say, well, we're going to do things we otherwise could not do.

MCO: So far, we consumers have accepted the trade off of handing our data over to companies in exchange for better, more personalized services. And, you have to admit, tech companies have been really savvy about holding our attention – otherwise they wouldn’t be able to collect so much data in the first place.

LC: The constant fight for our attention actually has a long history, which Columbia law professor Tim Wu recently explored in his recent book, The Attention Merchants.

TIM WU: Attention is like magic, it’s moving the resources of your mind to one stream of information, but it is essential to getting anything done.

Attention merchants are all around us. It is a business that depends for its revenue not on the sale of products but on the resale of audiences. The book is about the spread of that business model. Whether you call it selling eyeballs, ad supported media, whatever you want to call it, that strange thing where you turn your audience into the product, that's what I wrote about.

LC: We’ll be discussing the never-ending fight to hold our attention in the digital age – and the consequences of that – on the next episode of Raw Data.

LC: Raw Data is me, Leslie Chang, Mike Osborne, and Isha Salian. Our show is a production of Worldview Stanford.

MCO: If you want to learn more about Cindy Cohn’s organization, the Electronic Frontier Foundation, you can check them out at E-F-F dot org.

LC: Jennifer Granick’s new book is called American Spies: Modern Surveillance, Why You Should Care, and What to Do About It. It’s coming out in early 2017, and you can pre-order it on Amazon now. If you want more information, check it out at American Spies DOT com.

MCO: Trevor Timm’s organization is Freedom of the Press Foundation. They’re online at http:// Freedom DOT Press. You can learn more about SecureDrop there, as well as other projects. If you have a story to tell, keep an eye out for the SecureDrop icon on various news organization websites.

LC: Our podcast is made possible with additional support from the Stanford Cyber Initiative, whose mission is to produce research and frame debates on the future of cyber-social systems. You can learn more about the Cyber Initiative and their projects at cyber DOT stanford DOT edu.

MCO: If you like our show, we’d love for you to give us a rating on iTunes – it helps get the word out, and we’d really appreciate it.

LC: We have one more episode before the end of the year, and it’ll be coming out next week. So check back in next Tuesday. Thanks so much for listening, and here’s hoping we always have a safe place to talk.