Cybersecurity & Tech Executive Branch Intelligence Surveillance & Privacy

Morosov on the Significance of Snowden

Jack Goldsmith
Friday, December 27, 2013, 7:43 AM
Evgeny Morosov has an interesting piece in the FT that asks about the broader and mostly ignored implications of Snowden’s revelations about the scope of NSA surveillance.  He argues that controlling the NSA and raising government privacy protections does not begin to get at the root of what he sees as the essential problem of modern surveillance:
What eludes Mr Snowden – along with most of his detractors and supporters – is that we might be living through a transformation in how capital

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Evgeny Morosov has an interesting piece in the FT that asks about the broader and mostly ignored implications of Snowden’s revelations about the scope of NSA surveillance.  He argues that controlling the NSA and raising government privacy protections does not begin to get at the root of what he sees as the essential problem of modern surveillance:
What eludes Mr Snowden – along with most of his detractors and supporters – is that we might be living through a transformation in how capitalism works, with personal data emerging as an alternative payment regime. The benefits to consumers are already obvious; the potential costs to citizens are not. As markets in personal information proliferate, so do the externalities – with democracy the main victim. This ongoing transition from money to data is unlikely to weaken the clout of the NSA; on the contrary, it might create more and stronger intermediaries that can indulge its data obsession. So to remain relevant and have some political teeth, the surveillance debate must be linked to debates about capitalism – or risk obscurity in the highly legalistic ghetto of the privacy debate.
Morosov is right to suggest that (a) personal information rather than money is increasingly the currency for many services, and (b) State communications surveillance and data mining are enabled by consumers voluntarily giving up personal information in their individual interests that might not be in citizens’ interests collectively.  Morosov implies that the benefits of consumer empowerment, broadly conceived, are not worth the costs to citizens, broadly conceived.  I am agnostic on that point, and think the tradeoff is very hard to assess and is laden with many unknowns.  Also, it was the threat to the State posed by the rise of modern communication technologies (e.g., 9/11) that led the State to exploit the modern communication technologies extravagantly for counterterrorism purposes.  (One might push the analysis back a step and ask whether the State benefited pre-9/11 from the rise of communication technologies – the conventional wisdom was no, but I have long been skeptical of that conventional wisdom.)  Morosov implies that the rise of big data is an unambiguous plus for the State, but of course the same technologies that enable big data collection and exploitation also enable individuals to threaten the State and its citizens like never before.  So the issue of what the State “wants” is complicated.  Finally, Morosov offers no proposal for dealing with the “disturbing trend whereby our personal information – rather than money – becomes the chief way in which we pay for services” other than to identify the trend and urge more focus and imagination to solve it.  I doubt there is any way to halt this trend (as opposed to dealing with it), but that is likely no more than a failure of my imagination. Speaking of private storage of big data, on Monday I said of the President’s Review Group Report that “I do not understand the Report’s implicit assumption that the storage of bulk meta-data by private entities is an improvement from the perspective of privacy, or data security, or potential abuse.”  Ellen Nakashima had an interesting story Wednesday explaining why “industry officials, privacy advocates and congressional officials are expressing resistance to any alternatives [to government storage of meta-data] that involve mandating phone companies to hold the data for longer periods” and why “other possible scenarios, including having a private third party store the records, also raise concerns.”

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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