Andreas Weigend | Social Data Revolution | Fall 2016
School of Information | University of California at Berkeley | INFO 290A

Wiki Lead: Vlad Rudoy

Wiki Contributor: Syed Saif Nizam

Wiki Update (How Surveillance Has Changed Since Edward Snowden): William Ton

Topic Audio: sdr2016topic15a.mp3

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Guest Speaker: Nicole Ozer, Technology & Civil Liberties Policy Director

Additional Speaker: David Holtzman, former Security Analyst, Activist, Technologist, Technology Executive, and Writer


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For this week’s discussion, we had the privilege of having the Technology and Civil Liberties Policy Director for ACLU of Northern California, Nicole Ozer, speak to the class about the rights to privacy and transparency. Nicole graduated magna cum laude from Amherst College, studied comparative civil rights history at the University of Cape Town, and earned her Juris Doctor from Boalt School of Law at University of California, Berkeley. In addition to her stellar academic resume, Nicole has had extensive experience in law, having worked as an intellectual property attorney at Morrison & Foerster LLP, for which she was recognized as one of 20 “Women Making a Mark” in Silicon Valley. Another speaker who was present in our discussion was David H Holtzman. Mr. Holtzman is a former cryptographic analyst and a submariner for the U.S. Naval Security Group. He managed the development of IBM’s information encryption service allowing for the transactions of digitized content around the world, and served as the CTO of Network Solutions in the early 1990’s, where he ran the domain system name, and essentially had the control of the most critical network in the world at the time. During the the discussion, both Nicole and David informed the class about current dangers to our rights to privacy and transparency and what steps have been taken by organizations, such as Nicole’s division within the ACLU, and must be taken by citizens to secure these rights.


ACLU, short for American Civil Liberties Union, is a non-partisan and non-profit organization founded in 1920 in order to "defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." The union has local affiliates in all 50 States as well as Puerto Rico, making it a large-scale organization with around 500,000 members. Originally founded for the purpose of protection of freedom of speech, the ACLU’s focus has expanded to protection of many other rights, most notably, the currently controversial right to privacy. Nicole Ozer, who is the Technology and Policy Director of the Northern California ACLU branch, leads a division which fights for the preservation of civil liberties in the society which is heavily shaped by technology. Amongst these liberties, the most notable ones are the right to privacy and right to transparency.

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According to Nicole, protection of privacy is a complicated affair which is kept in place by the forces of friction (lack of resources), law, and public pressure. All three of these forces ebb and flow over time, leading to constant fluctuations within the status of privacy. However, due to the recent increase in pace of innovation within the information technology sector, friction has been declining rapidly, and thus upsetting the balance between the three forces. As a result, the fight for the preservation of privacy has become more difficult. Nonetheless, Nicole has noted that due to the scope of California’s constitutional right to privacy, which is broader than the first amendment, the push for changes within the field of consumer privacy has been much easier to accomplish than in any other state. In addition, California’s legislation extends not only to governments but also to private companies, thus fully protecting the consumer from violation of his/her rights. Still, regardless of location, Nicole has mentioned that the biggest obstacle in the ACLU’s quest to protect consumer privacy is the fact that people are not informed and are unaware of the various legal loopholes which put the their privacy is jeopardy. Therefore the goal of the ACLU’s Technology and Civil Liberties division is to not only fight against the corporate and government actions which violate privacy, but to also educate the public about how they can protect themselves. Adding on to this subject, David Holtzman made a statement in which he suggested that right to privacy is something that has to be protected by the citizens themselves, who need to create their own tools, such as encryption. David also added that the the law, as we know it, is "basically obsolete" in regards to protection of user privacy.

III.Right to Transparency

Another rather controversial right, right to transparency, has been a major focus of ACLU within the past couple of years. It is a rather crucial component of consumer privacy, as the knowledge of what is happening is essential for the implementation of proper actions on behalf of the consumers and those whose rights have been violated. The lack of transparency creates a lack of pressure on the government and corporations to abide the constitutional law, thus allowing them to neglect and ignore whichever civil liberties stand in the way of their agenda. Although it is without a doubt necessary, obtaining transparency is not an easy task, as it puts a lot at stake for both sides. Furthermore, Nicole has stated that the secretive nature of the Obama Administration has made it nearly impossible to obtain any sort of transparency within the government and corporate entities, even through the use of Freedom of Information Act requests.

IV. ACLU Successes and Failures

In regards to the security of civil liberties within our technology-dominated society, Nicole’s division within the ACLU has had some notable victories as well defeats.
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  1. The Right to Know Act - The ACLU pushed for this legislation that would give customers the right to know what information was collected about them and how that information was shared with third parties. Despite pressure from consumer groups, who believed the bill was not enough and wanted more powers in the hands of customers, this bill met vast opposition. Every single industry group and company lined up against them because they did not want such transparency. To them, the bill far exceeded limits. As a result, the bill was stopped by the first committee and the ACLU was unsuccessful.
  2. The ACLU also attempted to sue the NSA for spying, and the case goes up to the Supreme Court. However, because they could not prove that individuals were being spied on (because of secrecy), the Supreme Court rejected their case. A few days later, Snowden released his first document showing that Verizon customers were being spied on. As a result of this, the ACLU was able to move the litigation forward
  3. The ACLU tried to push for change in the California Electronic Communications Privacy Act, which hadn’t been updated since 1986. Because it was so outdated, this legislation was not compatible with the current technology. However, the governor, vetoed this attempt to update it. After the Snowden revelations, though, the ACLU finally received support from private companies and legislation. Now, any entity must obtain a warrant to obtain any electronic information.
  4. Another success for the ACLU came when stingray surveillance technology was not purchased by law enforcement agencies in Santa Clara and Oakland. Because of transparency, the public pushed back and successfully opposed adoption of this technology. This is an example of how beneficial transparency is.
  5. Recently, the ACLU found that Instagram, Twitter, and Facebook had been making data deals with a third party company named Geofeedia, which was selling data on protesters. Once the ACLU threatened to reveal this information via a Public Records Act request, Twitter, Facebook, and Instagram immediately cut off Geofeedia.


V. How Surveillance Has Changed Since Edward Snowden

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The initial public backlash over Edward Snowden’s revelations about PRISM would lead many to assume there would be massive legislation and new regulations to curb government surveillance. However, in actuality, the opposite has occurred. Thanks to Edward Snowden’s leaks, there exists new flexibility with the amount of information the various intelligence agencies can obtain, particularly the NSA, and how that information is shared across the community. Since there is now a degree of transparency, both government officials that shape the laws (Democrats and Republicans) and companies that control the data see the importance of the NSA and other intelligence agencies’ roles.

First, let’s say what Edward Snowden really revealed. He revealed that PRISM collects phone data on less than 30 percent of Americans mentioned by an article written by the Huffington Post by Stephen Braun in 2014. In response, the USA Freedom Act was passed that ended the PRISM program. However, the USA Freedom Act requires telecommunications companies to hold onto their data, which decreases costs since the NSA does not need to maintain their own databases, and access to intelligence agencies provided there is “reasonable suspicion” of the number being related to international terrorism or national security. In this article written by Lee Ferran of ABC in 2016, because the definition of “reasonable suspicion” is so vague, it virtually allows the NSA to obtain upwards to 100 percent of phone data. Consequently, this has an also greater impact on the protocols intelligence professionals must follow.

Under a new system proposed by the Obama administration written by Charlie Savage of New York Times in 2016, the NSA can share more of the private communications it intercepts with other American intelligence agencies without first applying any privacy protections to them. It means that more experts across American intelligence can gain direct access to unprocessed information. This is meant to help increase the chances that intelligence analysts, a vague term used for the plethora of possible expertise, to recognize any patterns of value. Consequently, this has shifted the protocols in Executive Order 12333, brought forth by Reagan, that dictates how information is collected, shared, and disseminated. Thus, more analysts can look at private messages beyond foreigners’ information.

So, what does this all mean to the average person? It means that despite the rhetoric around the public backlash to surveillance programs, little has been done to curb the intelligence communities’ activities. If anything, the leaks have revealed the relevance of such programs. This is why the Snowden leaks have actually both been detrimental (revealing how NSA operates) and positive (enhancing the capabilities agencies have not had before). Before people should be quick to backlash what these agencies do, it is important to consider what they do with the information compared to civilian companies. Civilian companies obtain, use, and sell the data for profits. In contrast, intelligence agencies use the data to predict, analyze, and protect the country from various threats that include terrorism and other foreign agencies. As such, the Edward Snowden leaks should bring into greater discussion the difference role intelligence companies and civilian ones (Facebook, etc) plays into the greater information age.

VI. Conclusion

In conclusion, this was an enlightening topic about surveillance and, more specifically, the fight against surveillance from a legislative standpoint. We learned about the challenges of pushing forward legislation to curb surveillance, as different interest groups oppose efforts to place more power in the hands of ordinary customers. However, an important lesson was the role of whistleblowers, and how acts by responsible people to reveal necessary information to the public helps the ACLU do what they do. We all benefitted from this discussion and come out with a more informed view of how the law can help in a time when data rights are becoming more crucial.