Ben Wizner is an ACLU attorney who we’re sure the government views as a “worthy fuckin’ adversary.”Cyrus Farivar
DAVIS, Calif.—Ben Wizner, a top attorney at the American Civil Liberties Union, is probably best known for being one of the lawyers representing Ed Snowden, the former National Security Agency contractor.
On Tuesday, he told Ars that representing the world’s most famous whistleblower has consumed a substantial portion of his professional life over the last 2.5 years.

But he framed his passion for civil liberties and fighting surveillance as part of a larger struggle that continues to play out as to the proper balance between not only surveillance and privacy but also between surveillance and democracy itself.
Wizner was in this college town outside Sacramento to speak at the University of California, Davis law school as part of an ongoing public lecture series on surveillance. (Full disclosure: yours truly spoke as part of the same series last year.) In a 30-minute talk followed by questions from an audience primarily made up of law students, Wizner outlined a history of surveillance in America, going back to the 1971 Citizens’ Commission to Investigate the FBI and extending through to the Snowden-era NSA.
“This, to me, is what’s so frustrating about the current debate between civil liberties and state security,” Wizner said during the lecture. “It’s become standard to approach the debate as if our challenge is to set the dial at precisely the right place that most efficiently maximizes both values.

But that ignores that the framers of the Constitution already put their thumbs on the scale.

And for good reason.

There’s a good reason why, in the 4th Amendment, suspicion of wrongdoing comes before search.

And it’s not only because of the presumption that we should generally be left alone—but because of the danger that a government, with enough data about any of us, can find some basis for being suspicious. ‘Show me the man, and I will show you the crime,’ said Stalin’s secret police chief.”
Ars had a chance to sit down with him prior to the talk and touch on a range of surveillance-related topics, including the ongoing case in San Bernardino, Snowden, and the best way to think about future dystopias. What follows is the transcript of our conversation that has been lightly edited for clarity and brevity.
Ars: Unlike prior cases, I feel like what’s different about the case in San Bernardino touches on the population as a whole, simply because a lot of people inherently understand: I have a smartphone, and I may or may not want the government to be able to have access to my stuff.

Ben Wizner: I’m not surprised when I see polls that say that Apple should turn over the information to the FBI. What our community has failed to do effectively is to change the framing, so that people understand that security isn’t on one side and rights on the other in this kind of dispute.

But that actually security is on both sides—different kinds of security.
The reason why Apple mainly objects to this kind of order is not because of the constitutional rights of its customers but because it is going to make vulnerable their systems in ways that will be exploited by others.
I have been urging colleagues to respond any time anybody asks about FBI and San Bernardino to say: the real conversation is about China wanting to unlock the phone of a US Embassy employee who they suspect is a CIA agent and don’t we want Apple to be able to say they can’t do that.
Don’t we want Apple to be able to say that they can’t help China track the communications of dissidents or other repressive regimes? And it’s exactly the same question if you move it from one place to another—I think people’s intuitions might flip. So long as the focus is on a terrorism investigation in the US, I think it’s going to be hard to get high levels of support for what Apple is doing.
I think that’s true.
But what’s amazing to watch is how much the government is essentially contriving test case litigation.

This is the kind of thing that, candidly, groups like the ACLU do. We pick our ideal plaintiffs, we find our moment, and we present the case in a way that is most advantageous to the right we’re trying to uphold.

But I don’t know that I’ve ever seen the government be this transparent.
It was reported this week that a week before the dispute went public the government recruited amicus counsel for the San Bernardino victims so that they could participate in this litigation.

And if you see the short piece that FBI Director Comey wrote on Lawfare, which is basically about looking the victims in the eye, it’s so emotional and manipulative, and it doesn’t address any of the core arguments against what the FBI is saying.
But do any of the victims’ statements mean anything, legally speaking?

Everyone in this debate recognizes that the magistrate judge is only one decision maker here.

And there is a much larger battle for hearts and minds that is taking place outside of that courtroom.

And it’s not just the hearts and minds of the public. We’ve seen the battles that have been taking place inside the Obama administration.
Remember over the summer when The Washington Post obtained an e-mail from Bob Litt saying: “we may have lost this round, in the administration, of crypto wars, but let’s stay ready, and if there’s another attack, and we can show some link to encryption, let’s live to fight another day?” And sure enough as soon as the Paris terrorist attacks took place, the intelligence community was putting out there that the terrorists were communicating with encrypted phones with the suggestion that if they hadn’t been, this attack could have been prevented.

This really is the government recognizing that, over time, encryption is going to be an obstacle to certain kinds of investigations—it will.

There’s no question about that.

And then finding the most emotionally resonant battlefield on which to have this skirmish.
But an amicus from a deceased person’s relative, does that carry any water legally?
It just depends.
If you follow amicus practice in the Supreme Court, it’s not at all uncommon for groups of people to have an interest in the case but might not have any legal expertise to form.
In the Texas abortion case that is before the Supreme Court, there is a courageous brief filed by women lawyers who themselves had abortions and how that affected their life and their careers. So does it carry legal weight? Who’s to say? But it certainly raises the stakes for the judges that are being asked to adjudicate the dispute.
Are you aware of a case that compels a physical lock maker or safe maker to comply with the government?


But the case that everyone cites is the 1970s case, New York Telephone.

Everyone is playing the game of analogies.

But I guess we’ll have more to say about this in our brief next week.
It’s a really wacky case.
It’s consumed my life for the last week, I’m sure yours too.
What did you make of the The Guardian’s editorial yesterday? The Guardian tried to be Solomonic and say that no right is absolute.

And this particular request may be reasonable.
I think the debate of “is this request reasonable” in isolation is a different question than “if you allow this case to go forward, as the government wants, then what does that then spawn in terms of other cases?”

And even this week you have to think that the FBI is doing a facepalm when they see Cyrus Vance’s interviews when he’s saying that he’s sitting on 170 phones that he wants Apple to unlock and he’s just waiting for the resolution in this case.
I imagine every district attorney in the country has that on their minds.
Not just in the country.

That’s the key point.
If the FBI were really honest that this was something that they only wanted to do in extraordinary circumstances, in very rare occasions, it seems to me that the consensus in the tech community is that it’s achievable if not cheap.

And that if they brought in the NSA—and here there’s no 4th Amendment question, it’s the government’s phone—and asked them to engineer a solution, they’d be able to do it.

They might not have the resources to be able to do it 170 times a week in New York.

But they certainly could use targeted hacking rather than company conscription to achieve it in this case.

And I think that they have not done that.

And the questions that people should be really asking them is: have you asked the NSA for assistance?
I actually did send that question to the FBI yesterday.
I haven’t gotten an answer.
But the fact that they haven’t done that yet just shows how much they’re concerned with the precedent than with the real phone.

That is my real takeaway right here.
Is that the FBI is trying to get the precedent, not the contents of this phone.
What would stop them from doing both?
Because they have to make a representation under the All Writs Act to the court that they don’t have alternative means. Part of the analysis is how burdensome is this? And in analyzing how burdensome it is, if Apple could say to the court: look the FBI could easily get in this other way rather than forcing us to write this code, that would bear on the statutory analysis and I would say on the constitutional analysis.
If the FBI is able to get in with NSA assistance, what basis do they have for compelling Apple into doing something that it doesn’t want to do? That’s why people like Snowden and Soghoian and others have been saying needs to be asked of the FBI: has the NSA said they can’t help you?

Turning to Snowden, has he communicated, other than through Twitter, has he influenced the way you guys think about this?

I communicate with him regularly, and he influences my thinking on all of these issues. My colleagues like Chris Soghoian are pretty confident in their views about these issues.

But certainly I learn a lot from him.

And it’s not like I’m getting any kind of secret information that looks different than what he’s putting out there on Twitter, it’s just that I’m able to have a conversation and I can ask follow-up questions.

And he has the rare quality of being both an extraordinary security technologist and someone who can talk about it to unsavvy tech types like me.

And Soghoian has that, too.

They’re unicorns.
Has he been able to provide better context for you in terms of the relationship between FBI and NSA, in terms of their technical capabilities?
On points like that, what I know from him is what the public knows from him.
I think Snowden has been pretty open about the technologies that he relies on for communication. SecureChat via OTR. He has endorsed Signal. So there are ways in which he’s able to use that.

For things that are less critical, in terms of security.

For his public appearances he generally uses Google Hangouts, because it’s easier for the venues and there’s no need for confidential communication when you’re speaking to a room of 1,000 people. So we use different things at different times depending on how sensitive the communication needs to be.
Do you have regular times, or does he talk to you whenever he wants? Do you have regular chats? How does that work?
I would say that we are frequently in touch with each other.
Is his situation intractable? It seems that if he wanted to, presuming that the Russian government continues to extend his visa and the charges aren’t dropped, his legal situation could be the same five years from now, 10 years from now, or 50 years from now.

Of course that’s a possibility, yeah. Yes, I don’t have any better means of predicting that than any ordinary citizen except that I have been privy to some communications with the government that the ordinary citizen has not been, but I do think that history tends to be kind to people like Snowden and much less kind to the claims of national security damage that are always levied against them.

And I already think that Snowden’s position is considerably stronger than it was a few years ago.

Even former Attorney General Eric Holder recognized the link between Snowden’s actions and historic legislative and judicial reform on these issues.

The disclosures led to the highest awards in journalism and film. He’s won the alternative Nobel Prize and from a foundation he’s been short-listed for the Nobel Peace Prize. Over time as the impact of the disclosures is more and more appreciated, and the punitive harms are revealed to be so much smoke, it’s going to be more difficult to consider the appropriate response a felony proposition.
This last year a majority of the European Parliament voted to call on member states not to extradite Snowden.

That’s not legally binding—every member state makes its own decision for itself.

But it’s still a watershed moment that the body that represents the continent of Europe and all of their democracies have decided that punishment is not the appropriate response.
We will continue to make the argument that this is an extraordinary case and is worthy of an extraordinary resolution. Powers like pardon and clemency they don’t exist where people didn’t break the law, necessarily.

They exist for cases where they did, but there are powerful extenuating circumstances.
I have not been harshly critical of the deal that Gen.

David Petraeus got, I do think that his career and service should bear on what an appropriate punishment is.

But I just think that the same kinds of considerations should be extended to people who don’t have friends in high places.
Are you able to say if in Obama’s last year in office, if an appeal to clemency or a pardon has been made?
I think all of the human rights groups in the world—ACLU, Amnesty International, Human Rights Watch—whether there will be some other focused push, is something we’re thinking about.
What exactly is the nature of Snowden’s relationship with the Russian government?

He has temporary legal residence, which I guess is the equivalent of a green card here.

But it’s renewable after three years.

Beyond that his relationship is nothing.

As he has said. He has a legal right to be there. He has no other relationship with the Russian government.
But surely he must be under watch locally.
I don’t know if your Russian counterpart has connections to the Kremlin, or things of that nature.
I don’t know what the question is.
I guess what I’m trying to figure out is if is an understanding beyond the visa that he has been granted.
The understanding is that he has a legal right to be there.
I don’t really have any more to say on the subject. He moves around freely. He doesn’t need anybody’s permission to do anything there. He meets with foreign journalists and politicians. His longtime girlfriend lives there with him.
I don’t have any more insight to offer you.
As somebody who does communicate with him regularly, I’d love to know more about what he’s like personally.

Are there personal elements of him that aren’t well communicated over Twitter?

I was asked this question more before Citizenfour and before he joined Twitter.
What I liked so much about Citizenfour is that everybody got to see him up close during a week of maximum stress and see how calm and how funny he is.

And I think Twitter is a place that he is really showing the range of his qualities. What I used to have to say more is: you wouldn’t believe how funny this guy is. His first week on Twitter I was getting lots of questions: who is writing his tweets? No one is asking that anymore.
How much of your time is spent as a lawyer dealing with his case versus others?
I’m middle management these days.
It’s really true. When you direct a project at the ACLU—this Speech, Privacy and Technology Project at the ACLU—my primary job is to supervise that project.

And some of the project directors at the ACLU litigate cases and some just oversee.

But because of the time that I’ve devoted to Snowden’s case over the last 2.5 years that’s basically the time I would have spent litigating other cases.
It’s a significant amount of time—it’s diminishing somewhat as his circle of trusted confidants has grown.
Are there other cases besides Snowden and San Bernardino that people like me should be paying more attention to?

I think the momentum in state legislatures to enact privacy legislation has proceeded somewhat under the radar. People notice that California, because it’s a mammoth state passed CalECPA, but people didn’t realize that California was not the first state to do that.

And people didn’t realize that it was happening in places like Montana and Utah and Colorado before it was happening in places like California. Mostly at the local level this alliance between civil libertarians and more traditional libertarians and its ability to impose appropriate restrictions on law enforcement surveillance is something that deserves a little more attention.
One of the things that I find difficult about writing about privacy is that people are worried about the potential for abuse.

But there isn’t always a clear-cut example to point to: to say that X scary government agency abused its authority in this way, but we are concerned that given this volume of data, that could be abused.
I think that’s correct.

And it’s not that there are not abuse examples. Surely there are. We saw through the Snowden documents that the NSA had a codename for some of those abuses: LOVEINT. When their analysts would use their capabilities to track lovers and others, but those cases were self-reported so we don’t know how widespread they were.

But yes, I think the concerns that we have rest on a theory of power and the experience of history which is that authorities migrate and they are abused.

What I mean by migrate is that these authorities that are promulgated as counterterrorism measures and are defended as narrowly necessary to prevent one threat will before long be in the hands of ordinary law enforcement agencies.

And we’ve already seen that in the Snowden documents. You see the FBI and the DEA popping up. You have that incredible thing, we want access to it! And think about the dynamic of that.
If there is a major terrorist attack—not on the level of San Bernardino but closer to the level of 9/11—it will most likely be shown that information that could have helped prevent the attack was residing in NSA databases because that’s what happens when you collect on a bulk scale.
And the failure to prevent it will be blamed on rules that didn’t allow criminal investigations access to these files and this lock box that is now protecting our privacy, according to the government, is going to be opened up.
That’s what happened after 9/11. Remember, what was blamed for 9/11? The wall between law enforcement and intelligence.

And the Patriot Act was written to tear down that wall.

And so I think that if you want to make a realistic assessment of harm from mass surveillance you can’t take a snapshot of today’s practices. You have to have a clear-headed assessment of where these capabilities are heading.

So one of them is this mission creep.
It will be a very different world if every cop on the beat can pull out his smartphone and have access to something like an NSA metadata database.

And I worry about chill.
I worry about what it’s going to feel like to live in a world like that.
It’s obviously an abstract concept compared to a Hoover-era blackmail story.

But I do think that people grasp it intuitively.
I think people already express concern about having law enforcement drones flying overhead all the time. You’ve seen 40 states consider legislation for a problem that doesn’t even exist yet.
And I think the leap that is going to be required is that there may not be drones already but there’s cops in their pockets already.

And that they’re already being tracked almost as intrusively as they would be by those cameras, that in some sense we’re already at the bottom of the slippery slope.

And yes there is a lot more that could be done.

But I think you’ve put your finger on a problem, which is that most people don’t experience in their daily life the harms that advocates are worried about.
One of the things that I also struggle with is: my feeling about the NSA, the FBI, the Oakland Police Department is that they have a hard job that I probably couldn’t do.

The vast majority of those officers and people are trying to do it to the best of their ability and they’re trying to use whatever tools are at their disposal to do that job and the law is slow to catch up with the technological reality of stingrays and crypto. So they push the envelope as much as they can.
I think that’s true.

But I think it’s also important to remember that the abuses of the Hoover era that seem so unfathomable to us today were carried about by people of goodwill for reasons that they considered to be patriotic and valid.

They were persuaded that there was a threat to the country and that required them to do things like break up marriages, infiltrate non-violent protesters, try to get MLK to commit suicide.
I’m not saying that there weren’t individually malicious people including Hoover himself but within these institutions, even ones that purport to be rule-bound, they’re always going to push and they’re always going to believe in the rightness of what they’re doing.

That’s why external oversight is so fundamentally critical.
Has there ever been a police agency that didn’t abuse its powers? Has there ever been one? I honestly don’t know the answer to that.
Do you worry about the dystopian surveillance future, in 10 years? Like I think that facial recognition will be ridiculous in a decade.
Is it because of the number of photos we’re uploading to Facebook and other social networks?
Yeah it’s that and just the science is getting better.
It’s interesting that Google Glass just face planted.
Yeah, but that’s just one way you would do it.

Another way you would do it would be a facial recognition device like a license plate reader. Maybe there’s an app that cops have or maybe there’s a device that sits on the car or on the officer’s uniform. Maybe it’s integrated into the body cam that can compare to a DMV registry. Matching unknown person X against the DMV database.

To me that seems inevitable.

Yeah, and that probably each person will walk around with that capability in some way. So that your device will recognize a stranger on the street and link to that person’s social media or other information that may or may not be correct about them.
It certainly seems like we’re headed that way.

From the government standpoint, the question is whether they call bulk collection inevitable or whether it can be constrained. Should we just—as companies like Palantir want us to—accept the fact that mass surveillance is here to stay and focus all of our energy on limiting access and having tight controls? Or can we persuade government entities that it’s a liability? A security liability and a democratic liability for them to be sitting on their types of capabilities.

And that they need to actually constrain themselves and tie a hand behind their back, and so that’s going to be the interesting debate going forward which is: are we as a society going to tell our security officials: we don’t want you to do these things.

Even though you can and even though they might have uses that might benefit security in some ways.
I’m somewhat encouraged by the debate that we’ve had over the last few years particularly compared with the decade that we had before 9/11, where it seemed like all you had to do was: X will make us safer and that was the end of the discussion, which is not how a constitutional democracy operates.
At heart I’m an optimist, but the longer I spend my time thinking about this, I think the capabilities get better faster than the law can catch up.
Then you have the need to have public-minded technologists on the right side, trying to use their skills to go into the spaces where the law may be too slow.

From the government’s point of view, the biggest fallout from the Snowden revelations is not the USA Freedom Act, it’s the number of communications platforms that are moving to end-to-end encryption.

And the advantage of those kinds of solutions is that they are not geographically bound.

They don’t only help people who live in a democracy, they may also benefit people who are trying to create one.
And they may benefit bad guys.

And I will say this later: the Constitution was written by people who were more worried about a government with too much power than they were about bad guys getting away.

There’s no other way to read the Bill of Rights.

At every turn it is making the government’s job deliberately more difficult. Not because they hated government, but because they understood it too well.