#676: ACLU’s Jennifer Granick on Surveillance, Privacy, & Free Speech

There’s a tension on the web today between creating a safe space to be online versions the costs to censorship and free speech. Spam, bots, trolls, harassment, hate speech, and terrorism are on the frontlines of making the web an unpleasant place to hang out, and so every online platform has to make a decision for what their terms of service are going to be be in order to foster a certain culture that makes it bearable to spend time there.

The issue is that our online platforms are communication have been increasingly consolidating into just a handful of companies including Facebook, Google, Twitter, etc. Without a plurality of places online that people are using, then this monopolization of communication networks has the effect of the enforcement of these terms of service be interpreted as forms of censorship and free speech.

Not only that, but these same major corporations are either directly collaborating with governmental mass surveillance programs, or the weaknesses of the third party doctrine as applied to the Fourth Amendment means that any information that you provide to a third party has “no reasonable expectations to remain private.” Sharing data means no secrecy, and therefore no privacy in the US government’s eyes.

The ACLU disagrees with the government’s assessment that any data shared with a third party is no longer private, and they had a small victory in the Carpenter case that went to the Supreme Court that indicated that the third doctrine shouldn’t be a blanket application to all online data, and that it needs to be looked at on a case by case basis.

I had a chance to talk with the Jennifer Granick who works at the ACLU as Surveillance and Cybersecurity Council about mass surveillance, the third party doctrine, and the debates around free speech and censorship are complicated by the monopolization of communication networks and with governments colluding with technology companies in order to censor information online. The legal lines between free speech and tyrannical governmental control creates a number of slippery slopes that has lead the ACLU to some surprising legal battles.


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Music: Fatality

Rough Transcript

[00:00:05.452] Kent Bye: The Voices of VR Podcast. Hello, my name is Kent Bye, and welcome to The Voices of VR Podcast. So last Thursday, August 2nd, Jennifer Granik from the ACLU gave a talk at the Decentralized Web Summit, talking about the state of the web today. Now, she was representing herself, she wasn't representing any official views from the ACLU, She specifically works for the Surveillance and Cybersecurity Council at the ACLU. And so she's been looking at this interface between these major tech companies and the government, especially when it comes to surveillance and privacy. So essentially, you have the Snowden revelations that came out that showed that the government are collaborating with all these major companies to be able to do this mass surveillance. And the ACLU had a number of different lawsuits against the US government, but they failed to go through. And so the surveillance that was revealed by Snowden is still continuing to this day. So that's an issue. But there's also these issues around privacy and freedom of speech. And the issue is that you have these major companies that are centralizing their power in different ways and that they're kind of becoming monopolies of communication. Whenever they have a decision that comes down, then the impacts of the decision can be rippled out in different ways. You have people on both sides of the issue upset that either action is taken or not taken. And then we have people that are going away from centralized platforms and looking to decentralized alternatives. So this is something that I think is a hot topic in our culture today And it's not something that is a clear issue because you're trying to you know Have this trade-off in balance between creating these safe online spaces for people to have interactions with each other whether that's from you know spam or bots or information warfare or many different legitimate reasons and threats that, you know, there's a reason why you don't run your own email server because there's so much spam that you would have to deal with. And so we end up using services like Gmail or other centralized solutions so that we don't have to deal with it. So the issue though is that there's these different trade-offs of privacy as well as this mass surveillance that's happening with the US government in cooperation with a lot of these major tech companies. So this is a conversation where I only had like 10 minutes to be able to talk to her. So I tried to cram as much as I could in this very short and brief conversation and it really wasn't enough to I hope this creating these social online spaces are going to have to deal with these various different issues of trying to trade off the boundaries of free speech and when to kind of enforce the terms of service so that you actually can create an environment that people collectively agree that they want to have an experience around. So that's what we're covering on today's episode of the Voices of VR podcast. So this interview with Jennifer Granik happened on Thursday, August 2nd, 2018 at the Decentralized Web Summit in San Francisco, California. So with that, let's go ahead and dive right in.

[00:03:06.524] Jennifer Granick: I'm Jennifer Granik. I work for the ACLU. I am surveillance and cybersecurity counsel there, and I work on mainly issues having to do with government access to our private information.

[00:03:18.316] Kent Bye: Great. So you're here at the Decentralized Web Summit. What are some of the messages that you were trying to tell to the larger community here today?

[00:03:25.721] Jennifer Granick: I wanted to both critique the current internet structure for the amount of private data it collects on us and how easily that's made available to the government in particular, and then sort of highlight that as a problem where there's not just technological challenges, but also political and legal challenges that need to be resolved.

[00:03:44.863] Kent Bye: So maybe you can expand on a little bit about this third party doctrine, because I think that people may not necessarily realize the sort of implications of any time they give any third party any data, what the sort of legal right of that is.

[00:03:58.514] Jennifer Granick: You know, under the Constitution, which is sort of like a base level of rights, if something is a search or a seizure, then generally the government has to get a warrant and have probable cause, meaning that you have to go to a judge and show them that there's a good reason for you to have this information. And the government has argued for decades that this doesn't apply if information is in the hands of third parties. The idea being that you've exposed the information to the third party, so it's no longer secret, and you've voluntarily given it over. So if it's not secret as to the third party, then it's not secret as to the government. Essentially, it's saying that privacy and secrecy are the same thing. So if it's not secret, it's not private. And the problem with this, it's always a little bit of a problem, but the problem with this was particularly salient with the internet. Because in the internet and cloud computing, everything is in the hands of third parties. Your most private communications, your location, your health data, everything. And so if this so-called third party doctrine was what the government said it was, really you'd have no constitutional protection for anything you do online. And, you know, so basically what we've been trying to do is show how that's not correct legally. And most recently, in the Carpenter case, which was decided by the Supreme Court this last term, we got a ruling that said that historical cell site location information is protected by the Fourth Amendment, and they do need to get a warrant for it, even though it's in the hands of the third parties, which are your cell provider. So while the court said that the decision is very narrow, the implication is actually really important. It said like we don't mechanically apply the third party doctrine and just say well it's a free-for-all. We have to look at the particular technology, the conditions under which the information was disclosed to the third party, what the dangers are from the government having this unfettered access to it and go from there.

[00:05:45.337] Kent Bye: I think that one of the other points that you're making was this trade-off between the user experience and convenience of all the benefits of the economies of scale of the centralized internet versus the trade-offs to our privacy. But also, there's this interface between the government and these centralized institutions to be able to exert their centralized power control over their people that are living within their countries.

[00:06:07.888] Jennifer Granick: Yeah, that's well said. That's well said. And not just with privacy, but with speech too.

[00:06:12.469] Kent Bye: And so people have had the metaphor that they're putting their data into like a safe, secure vault. And I think with the Facebook and Cambridge Analytica, that sort of metaphor was utterly destroyed, saying like, actually, this information could be used for information warfare. But not only that, this information could potentially already be available for a lot of these governments to already be doing all sorts of surveillance and control upon their population. So maybe you could, since you're focusing on this relationship of the law of governments interfacing with these technology companies, How bad could it be?

[00:06:42.556] Jennifer Granick: What's going on? I mean, if you want me to catastrophize, I'm happy to do that. You know, there's an immense amount of information that these companies have about us. And, you know, the amount of information is only going to grow with the Internet of Things and home sensors and health based monitors and all of that stuff. So there's just an immense amount. of information there, there's a real challenge into how to manage it. Because, you know, people talk about user control and notice and consent. And, you know, there's all these terms of service, people don't read them, nobody could be expected to read them or fully understand the implications of them. So notice and consent is really broken as a means of protecting information. Governments around the world want access to this information, not just the U.S. government with whatever procedural safeguards we have, but other governments that don't have those procedural safeguards. We have, you know, not just sort of the privacy interests, but where the speech interests clash with that. So it may be your private information, but if I reveal it, then, you know, if you have the right to sort of take that private information back, you're squelching my speech. And then kind of related to that is the whole problem of data portability. You know, we want Facebook to keep our data safe from Cambridge Analytica, but we also would like to be able to export all our valuable data from these companies and use it for something else. And, you know, Cambridge Analytica was people exporting their friends' data. So, you know, there's just a real tension there between a number of different important values.

[00:08:07.314] Kent Bye: I think another big, huge topic that I think comes up a lot, especially within virtual reality and online communities, is this issue of what people want is to create safe online spaces without harassment, without hate speech, without Nazi propaganda, without terrorist propaganda. What is the sort of trade-offs to knowing, from a free speech perspective, where to draw that line, and what are the things that we're losing by these terms of services and these centralized entities by creating these safe online spaces?

[00:08:34.965] Jennifer Granick: Yeah, I mean, it's hard to say like, you know, what we're losing is 4chan, you know, or something like that. But I think the problem is, you know, when you have not enough diversity among the centralized platforms, then you end up without places for speech. Like, I have no problem with Facebook not being a free speech platform. It never was. It advertised itself as like a safe, curated community. And it sort of served a particular population. It's perfectly fine. In the beginning, Twitter was, you know, the free speech wing of the free speech party. It was good in all those ways, did those things well. And it's evolving away from that at a relatively rapid pace. But, you know, we still had Reddit. We still had these other places where people could speak openly and connect with each other. And, of course, there's still WhatsApp. signal and, you know, all of the other services that allow people to connect. The problem really arises when these centralized platforms that most people use end up being under their own judgment, which isn't necessarily always transparent to us, and at the behest of governments end up censoring, because that actually affects the majority of people then. On the other hand, you know, people don't, people don't want the internet to be 4chan all the time, and I think that's completely legitimate. It's a completely legitimate market for companies to decide to serve and for people to want.

[00:09:51.967] Kent Bye: I think the trend that I think is concerning to me and I think for you as well is that you have these countries like you mentioned France, perhaps China, where they say, hey, we don't we only want this speech that we classify as harmful to be not available in our regional country, but not available globally. I mean, the alternative is that you have the balkanization of the Internet. But the other alternative is that you have The only thing that's available is sort of like what you said, like safe like TV. You have people controlling your speech in different ways. And so I guess that's the thing where saying like there's a free speech argument means that you in some ways have to be on the side of Nazis having their free speech or it's on the side of these complete totalitarian governments saying that there's content that shouldn't be available globally to the entire world.

[00:10:33.349] Jennifer Granick: I think under my view is that's exactly right. And that's why, you know, we defend the rights of Nazis to march. And, you know, because there's this slippery slope. Once you let governments decide what's a legitimate opinion or what's not, then you have this decay. You empower oppressive governments to make the same decisions that you wouldn't make. I don't think that a lot of Americans really believe that that's true. I think a lot of Americans believe that you can deputize these companies to take down the speech they don't like and leave up the speech they do. And when they mess it up, it's the company's fault for having done it wrong. That is an extremely ignorant position. It's legally ignorant, it's politically ignorant, and it's technologically ignorant. Think with speech, it's like the rising tide floats all boats. We're going to get some bad with all the good.

[00:11:22.823] Kent Bye: So what's next for like the things that are on the frontier in terms of the biggest? Open questions and I guess the ultimate potential for how you see all these things fitting together whether it's both the law With the cultural norms with the technology as well as the markets because it feels like there's values that are embedded in the cultural norms the markets and these technology there's these regulators that are happening and I think that people tend to want to have this maybe techno-utopianism that technology can solve everything, but there's really this interface between all of these things. And I guess from the ACL perspective, your perspective, how does the law interface with these other dynamics and to not take a reductive approach of saying that like Facebook can sort of technologically engineer a safe culture?

[00:12:05.058] Jennifer Granick: Yeah. I mean, I can't speak for the ACLU, but I can say that, you know, there's definitely some hearts and minds for us to win over. And I think Brewster said today, and I think it's right that, you know, we need a multiplicity of business models of platforms of services so that, you know, it's not this centralized monopoly. People have choices and we can experiment. with different ways that it can be done. I think we're fighting this issue on a couple of fronts. One is surveillance and just the immense amount of information the government can get about us and how it is just not overseen or regulated. We lost the biggest surveillance battle we ever fought last year when the upstream surveillance that Edward Snowden revealed was not curtailed, not restrained by Congress. We have the speech battle. which is going really hot right now, particularly with Facebook and fake news and all of this stuff. And basically it's the... online equivalent of punching Nazis in the face. You know, let's just take them out. But of course, you know, what we end up seeing is people who complain about Nazis and repost to the stuff that the Nazis say also are getting taken down. It's just gonna happen. And I think the challenge there is companies have a free speech right and a business right to have whatever kind of service that they want. But increasingly these decisions made by the companies and have the de facto effect of government censorship. So how do we balance both those interests? That's another battle we'll be fighting. And I think, you know, it's not just a legal battle, although that's really where I focus. It's also a question of really understanding why the companies evolved this way, what their commercial interests are, and how to kind of structure or build something that's going to work better.

[00:13:46.198] Kent Bye: Great. And do you have any other final thoughts of being here at the Decentralized Web Summit, seeing a lot of these sort of decentralized technologies, what they may enable when it comes to overcoming governmental censorship, and just any other sort of final thoughts of what your vision is for the future for how this may evolve?

[00:14:02.134] Jennifer Granick: I mean, I think Brewster is a real hero and it's an honor to be here and hear him and listen to his vision and see people who are working really hard and have the technical knowledge to see it through. I think that's awesome. I particularly love the models where people were making models of their decentralized web. visions with marshmallows and toothpicks. I thought that was very persuasive and of course if it doesn't work out you can just eat it which is always a good plan. And I like to see the optimism that people have that this idea of a web that's open and safe and free is something we can still do.

[00:14:35.428] Kent Bye: Awesome, great. Well, thank you so much. Yeah, thank you. So that was Jennifer Granick from the ACLU working on surveillance and cybersecurity counsel. And I should say that she was speaking on her own behalf and not on behalf of ACLU in the context of this interview. So I have a number of different takeaways about this interview is that first of all, Wow, well, there is a lot to kind of unpack. And I don't really think that I can fully unpack everything that was talked about here, just because it's kind of like a huge open question that's happening in our culture today is this line between those safe online spaces, and, you know, being able to allow freedom of speech to happen, but also knowing like, what is the collective agreement that people have within their different communities? I think a big takeaway that I took from this interview is that Jennifer was saying a main problem that we have is that you have this centralization and monopolization of these communication networks and these different entities like Google and Facebook. We use these networks all the time because they've actually provided a very amazing user experience and people like the user experience. there's all these unintended consequences when it comes to our user privacy, but also the impact on free speech. And I think that, you know, if you watch the documentary called The Cleaners, I really recommend you try to get a copy and check it out. It was at Sundance this past year, and it showed how anytime there's a complaint that happens online with any content, then it goes off to these moderators who are human moderators, but they're in a completely different country, and they are incentivized to not let speech that should be in violation of their terms of service go out there. And so they tend to be a little bit more aggressive on anything that ends up getting reported. And so you just have this effect of more and more free speech being suppressed. And especially if, like Jennifer said, that even if it's people who are covering what the Nazis are saying, for example, then that could be a violation of the terms of service to even just report what they're saying, even if you want to critique it. You know what Jennifer said is that we don't want every online space to become 4chan And so we don't want just to have kind of like this complete anarchy and no rules around what we're doing online because no one would ever want to be online if it was kind of like the worst aspect of trolling coming at you all the time and so We want to have these spaces online to be able to connect with our friends within certain rules and boundaries But there's these various trade-offs that we have to figure out what those lines and boundaries are And one of the things that I've seen is that you know, it's more peer-to-peer and individual and these small groups especially something like DR for example, you know having your own private chat room where you're a only inviting people in that you want to talk to, but this has the effect of creating these echo chambers where you're not able to get access to different ideas and concepts. And so it's a larger issue that I think is kind of playing out in the overall ecosystem of the internet. So I think this is one of the biggest challenges today, especially when you think about, you know, and it comes to the scale of governments like China or Turkey or India, for various reasons, they've decided to essentially block the entire internet archive, because there's maybe a few videos that, you know, we're against the terms of service. And rather than, you know, take those individual videos down, maybe in a regional way, they wanted to have those taken down for the entire internet. And then when that doesn't happen, then these different sites get blocked. And so we just have both the balkanization that's happening in the overall internet and globally, but the security issues of both our privacy and our information in this third party doctrine, I think is key. This carpenter decision is a key decision, just because for the most part, anytime you put any information up on any third party, then it has no reasonable expectation to remain private. That's the third party doctrine, which means that If the government would go to that entity and say, we would like to have this information, whether or not they have a warrant or not, they don't need a warrant because it's not protected under the Fourth Amendment. And so this equivalence of secret information versus private information, just because it's not secret and you're sharing it with the third party, it could still be protected with the privacy affordances of the Fourth Amendment. That's essentially what the Carpenter case had shown. So you have this, I guess, tension where now they've shown that, you know, third party doctrine just shouldn't be blindly applied to everything. But litigation hasn't gone through like every single dimension of the data that should or should not be private. So there's these open battles that I think ACLU is fighting. And I think that, you know, sometimes they have to be on the side of supporting the Nazis right to be able to march because they see this as this slippery slope between as soon as you say, this is speech that the government should be coming in and regulating and not allowing this to be freedom of expression. Then what is the line between the government being able to say what is okay and not okay? And so and the other end of that you have the other extreme which is you know The totalitarian governments of China saying, you know, this huge swaths of information should be censored not only from our internet But the entire world's internet and trying to memory hole the past and you know where is that line between? going towards supporting these totalitarian governments and in sort of blocking the speech that you don't like in different ways and and Another argument that comes up a lot within the context of free speech debate is in order to counter speech You don't like or bad speech is with more speech not less speech If you eliminate that speech, then it just kind of puts it to the underground It's not like the speech is just going to go away. It still happens. It just happens to the back channel so kind of creates this Barbra Streisand effect of people saying that it's censored and they actually want to find out what it is just to see what it's all about. So you actually generate more and more interest in it and sometimes you can completely eliminate it but normally you're not able to completely just squash it out. It kind of creates this opposite effect of actually making it more popular. So why not address those ideas directly and engage in a debate and kind of philosophically discuss these different concepts and try to getting to the point where you can actually address the substance of the different arguments. Now, I think there's certainly limits to that, of course, but there's also these larger issues of simple attacks, which is this concept of bots and trolls kind of being supported by Hostile nation-states that are operating at a scale that you kind of have to figure out Well, how do you deal with those types of attacks on democracy? Are you just going to you know under the name of free speech let all this information warfare happen? So there's that, but there's also kind of the more emotional aspects of these different debates. And is it really actually an intellectual debate? Or is it based upon direct experiences that people have? And these emotional reactions are not really even based upon any sort of rational argument, or if there is rational argument, then there's disagreements as to the science or the information that's being cited. And so dialogue and debate online has, you know, kind of regressed to the point where it's just like the shouting matches, and you can't even kind of agree on the fundamental facts or the your common axiomatic solutions. And so it's just kind of like this, screaming at each other in these different echo chambers of these boundaries of what each considers ontological reality. So Jennifer was saying, it's everybody's right within the internet to be able to have those own boundaries and their own terms of service. But issue is with that, that lack of diversity and plurality, then you just have this monopolization and these centralized powers having more and more impact of these different decisions that are coming down. And I think that People on all sides are seeing the various pain points of these centralized entities, and I think that part of the big initiative of the Decentralized Web Summit was to try to come up with various different alternatives to a lot of this. So, that's all that I have for today, and I just wanted to thank you for listening to the Voices of VR podcast. And if you enjoy the podcast, then please do spread the word, tell your friends, and consider becoming a member of the Patreon. This is a listener-supported podcast, and I do rely upon your donations in order to continue to bring you this coverage. So, you can donate today at patreon.com slash Voices of VR. Thanks for listening.

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