Ben Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.”
On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.
Sagiv Galai and Tekendra Parmar: In her book On Violence, Hannah Arendt quotes Henry Steele Commager in talking about the boomerang effect of rule by violence in faraway lands, which could end by corrupting home governments: “If we subvert world order and destroy world peace we must inevitably subvert and destroy our own political institutions first.” Do you see a relationship between the assumptions in this quotation and your work?
Ben Wizner: It’s interesting—Chomsky has made the opposite observation about the United States. He has said there is almost an inverse relationship between the violence and depredations that the empire causes abroad and the relative peace, security, and freedom that we enjoy at home. I think that if you look at much of the last half-century, even as the United States was becoming one of the freer and safer societies in the history of the planet, it was involved in grotesque and violent abuses abroad, either directly as in Vietnam or indirectly with proxies in Central America and other places. So I don’t see a straight line like the way that quote implies.
I will say this, though: Many of the technologies, both military technologies and surveillance technologies, that are developed for purposes of policing the empire find their way back home and get repurposed. You saw this in Ferguson, where we had military equipment in the streets to police nonviolent civil unrest, and we’re seeing this with surveillance technologies, where things that are deployed for use in war zones are now commonly in the arsenals of local police departments. For example, a cellphone surveillance tool that we call the StingRay—which mimics a cellphone tower and communicates with all the phones around—was really developed as a military technology to help identify targets. Now, because it’s so inexpensive, and because there is a surplus of these things that are being developed, it ends up getting pushed down into local communities without local democratic consent or control.
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SG & TP: In September, the Department of Justice decided that law-enforcement agencies, at least the FBI and the Drug Enforcement Administration, do need a warrant to use the StingRay. The ACLU published a press release that said this “is a positive step,” but there are still “loopholes.” Can you talk about these loopholes?
BW: The good news is that when we dragged this technology out into the open, the public response compelled the federal government to change its practice. [Before the DOJ’s September change in policy,] it was routinely either using the technology without warrants under authorities that had nothing to do with the technology or it was asking for warrants, without explaining in clear terms to the judges what it was exactly that they were authorizing. We should focus on the most important part of that statement, which is that it’s a really important step forward and it shows what happens when you subject these technologies to public oversight.
We [at the ACLU] have never said that we think that with warrants StingRays are proper devices. We’ve been careful to say that at a minimum, a warrant is required, and that the warrant needs to specify how it is going to be used. It has to have instructions to the police about how to minimize the impact on people who are not the targets.
SG & TP: How do you see the current state of the right to privacy?
BW: I joked when I took this job that I was relieved that I was going to be working on the Fourth Amendment, because finally I’d have a chance to win. That was intended as gallows humor; the Fourth Amendment had been a dishrag for the last several decades, largely because of the war on drugs. The joke in civil liberties circles was, “What amendment?” But I was able to make this joke because I was coming to Fourth Amendment litigation from something even worse, which was trying to sue the CIA for torture, or targeted killings, or various things where the invariable outcome was some kind of non-justiciability ruling. We weren’t even reaching the merits at all. It turns out that my gallows humor joke was prescient.
The truth is that over the last few years, we’ve seen some of the most important Fourth Amendment decisions from the Supreme Court in perhaps half a century. Certainly, I think the Jones decision in 2012 [U.S. v. Jones], which held that GPS tracking was a Fourth Amendment search, was the most important Fourth Amendment decision since Katz in 1967 [Katz v. United States], in terms of starting a revolution in Fourth Amendment jurisprudence signifying that changes in technology were not just differences in degree, but they were differences in kind, and require the Court to grapple with it in a different way. Just two years later, you saw the Court holding that police can’t search your phone incident to an arrest without getting a warrant [Riley v. California]. Since 2012, at the level of Supreme Court jurisprudence, we’re seeing a recognition that technology has required a rethinking of the Fourth Amendment at the state and local level. We’re seeing a wave of privacy legislation that’s really passing beneath the radar for people who are not paying close attention. It’s not just happening in liberal states like California; it’s happening in red states like Montana, Utah, and Wyoming. And purple states like Colorado and Maine. You see as many libertarians and conservatives pushing these new rules as you see liberals. It really has cut across at least party lines, if not ideologies. My overall point here is that with respect to constraints on government surveillance—I should be more specific—law-enforcement government surveillance—momentum has been on our side in a way that has surprised even me.
SG & TP: Do you think that increased privacy protections will happen on the state level before they happen on the federal level?
BW: I think so. For example, look at what occurred with the death penalty and the Supreme Court’s recent Eighth Amendment jurisprudence. The question under the Eighth Amendment is, “Is the practice cruel and unusual?” The Court has looked at what it calls “evolving standards of decency” [Trop v. Dulles, 1958]. It matters to the Court, when it’s deciding whether a juvenile can be executed or if a juvenile can get life without parole, what’s going on in the states. It was important to the litigants in those cases to be able to show that even if most states allowed the bad practice, the momentum was in the other direction. The states that were legislating on this most recently were liberalizing their rules, were making it harder to execute people under 18 or to lock them up without the possibility of parole.
I think you’re going to see the same thing with Fourth Amendment and privacy jurisprudence, even though the Court doesn’t have a specific doctrine like “evolving standards of decency.” The Court uses this much-maligned test, “Do individuals have a reasonable expectation of privacy?” We’ll advance the argument, I think successfully, that part of what the Court should look at in considering whether an expectation of privacy is reasonable is showing what’s going on in the states. If we can show that a dozen or eighteen state legislatures have enacted a constitutional protection that doesn’t exist in federal constitutional law, I think that that will influence the Supreme Court.
The question is will it also influence Congress. I think there the answer is also “yes.” If you’re a member of the House or the Senate from Montana, and you see that your state legislature and your Republican governor have enacted privacy legislation, you’re not going to be worried about voting in that direction. I think this is one of those places where, unlike civil rights, where you saw most of the action at the federal level and then getting forced down to the states, we’re going to see more action at the state level getting funneled up to the federal government.
SG & TP: Concerning the passage this year of the California Electronic Communications Privacy Act, can you talk about the work that went into pressuring that policy shift?
BW: What was interesting was that our legislative successes had been, as I said, in purple or red states more than in places like New York, Massachusetts, and California. That has to do with the politics of security. Since Nixon, the strategy for Republicans has been to politicize all issues of crime and national security, and to make it a very hard vote for Democrats to liberalize any policies, to take any authority away from law enforcement. This was the fourth time the California legislature had passed a version of this. The previous two times Democratic Governor Jerry Brown had vetoed it because of pressure from law-enforcement agencies. Somehow, the politics of that changed. I think the technology community, which is indigenous to California, put a lot of muscle into the fight. I may have concerns, as a liberal and civil libertarian, about the power and reach of these technology giants, but in the meantime, they are extremely effective allies in trying to constrain government surveillance. Allies of convenience, perhaps, but still very influential ones.
SG & TP: When we talk about privacy, we tend to distinguish between corporate and state-sponsored surveillance. Should we be having these conversations separately, or do you think they’re too intertwined to distinguish from each other?
BW: I’m going to hedge here and say both. One reason why they’re intertwined is that there have been insufficient protections separating corporate collection from government collection. As long as governments have easy access to what corporations collect, we’re having one conversation, not two. Obviously, you saw that with the PRISM program and even more so with government hacking of these corporations in order to get customer data without their consent. In practical terms, you have to look at what the barrier is separating the corporate collection from the government getting its hands on it. In that sense I think it’s one conversation.
But I do think we have different sets of concerns when corporations abuse us as consumers than when governments abuse us as citizens—even if they’re parallel. The structure may be similar, which is that a vast entity with insufficient transparency is collecting and aggregating data and is acting in ways that are invisible, but with consequences that are very real, without an adequate due-process system for people to push back. You see that in the corporate world with things like credit scores and lots of invisible ways in which corporations track our merit as consumers. And you see it on the government side with things like watch lists, where we have no idea what set of circumstances put you on a watch list, and then there is no real fair process of getting off it once you’re on.
SG & TP: Is the onus of safeguarding privacy currently on corporations and telecommunications providers?
BW: I like to think about this slightly differently. We can think about the relationship between the Silicon Valley giants and the security state in the same way that we think about checks and balances between competing power centers in government. We want those powerful entities to be adversaries. We want and need corporations as powerful allies in pushing back against the security state. But we’re almost certainly going to need the government as an ally in pushing back against the depredations of the surveillance economy. We’re going to need a stronger Federal Trade Commission, we’re going to need a stronger Federal Communications Commission, we’re going to need Congress to do more to protect us as consumers. For me, it’s not so much who is my ally or who is my adversary: I can see both corporations and the government being allies of convenience against the other, depending on the context.
SG & TP: What are the current legal obstacles that you face in your work? Since 9/11 and the Patriot Act, the legal questions have changed, but have the legal strategies changed?
BW: My whole career is after 9/11, so I can’t talk about shifting strategies, I just don’t have the breadth. I think the challenge, specifically with national security surveillance—and this is not an outcome of 9/11—if you look back at the cases from the 1970s and ’80s, you’ll see that same thing. The problem has always been justiciability. The problem has always been classification. The problem has always been the government being able to articulate a broad right to define intelligence sources and methods and to keep those away from any judicial scrutiny, and to prevent plaintiffs from being able to adjudicate these disputes.
When the Second Circuit Court of Appeals in May of 2015 [ACLU v. Clapper] struck down the government’s bulk telephone collection program under Section 215 of the Patriot Act, that was the first time in my memory, and in any cases that I looked at, where a court actually reached the merits on one of these NSA cases and didn’t accept an argument of standing or secrecy or immunity (which have been the main obstacles). We just haven’t had a good record in this country of being able to drag the security state into court and to adjudicate the legality of its practices.
Now, that’s true of surveillance and it’s been true of interrogation practices. The one place where it turned out not to be true after 9/11 was detention and the ancient right of habeas corpus, but that’s because even a conservative Supreme Court wasn’t willing to allow the executive branch to overturn the Magna Carta (although it hasn’t been very aggressive in enforcing its rulings).
SG & TP: Are you ever curious to know what the surveillance apparatus has on you?
BW: I guess less so than you’d think. I don’t consider myself naive, but nonetheless, I have some sense of how the US security state operates. I think they’re very conscious that the times in their history when they’ve lost power and authority are when they’ve directed their own powers against other powerful or respected institutions. I’d be very surprised if they found in the FBI or NSA databases that they’ve been doing targeted surveillance operations against prominent journalists, or members of Congress, or organizations like the ACLU or people like me.
Having said that, Snowden is clearly a legitimate target in their view. They have an open criminal investigation against him, and they also have all kinds of national security authorities that they could deploy. And I would add that the United States is not the only country that could be interested in Snowden’s communications, and my communications with him. Doing our work in the United States, as opposed to somewhere else in the world, provides me a lot of protection.
SG & TP: So you don’t believe that under the Patriot Act or any other authorization of security apparatuses the United States is spying on peaceful or dissenting organizations?
BW: I guess that depends on what you mean by “spying.” They clearly are collecting data, but they don’t have to target their operations to collect it. That’s the main difference between this era and the previous one, which is that their passive systems are collecting it. The question is not whether they are collecting it, but whether they are querying it and using it.
SG & TP: What are the dilemmas of defending a client charged under the Espionage Act?
BW: It would be very different if [Snowden] was in the United States and actually facing trial. Then we’d be facing all of the ways courts’ interpretations of the Espionage Act have prevented robust defense. Because he is not here—because he is not facing trial—the court in which we are litigating is the court of public opinion. Not just in the United States, but around the world. Here in the United States, there are a lot of people, including well-meaning liberals, who are skeptical of his decision not to face trial even under an unjust statute, and to seek sanctuary elsewhere. It’s been a big challenge to defend and support the view that civil disobedience does not require subjecting oneself to cruel punishment under an unjust law. I don’t think we’ve been wholly successful there.
There is a tendency to think that conscientious objectors should be martyrs. I wonder how this debate would have played out over the past two and a half years without Snowden’s singular and eloquent voice. There is no one else who can command a large audience over the issues that we’re talking about. I don’t know if without him the climate would have changed enough for Congress to have changed the law and restricted intelligence surveillance authority for the first time since 1978. Even for the court to come out the way it did—the court is not immune to public opinion. I think Snowden’s very reasonable, measured contributions to this—and his contributions have not only been in his public speaking but in his assistance behind the scenes to the journalists who are reporting on these stories—are absolutely essential to the reform that we’ve managed to achieve.
On a personal level, it has been a challenge to balance the various roles that he has asked me to play, in assisting him in being the most effective reform advocate that he can be, and at the same time laying the groundwork for him to have a better outcome than the one that he’s had, either back in the United States or in a third country.
SG & TP: What would need to change for Snowden to come back?
BW: The government could offer him a misdemeanor plea.
SG & TP: Hina Shamsi, your colleague who runs the National Security Project at the ACLU, found herself on a panel with a Hudson Institute fellow, Gabriel Schoenfeld. In the course of the panel, Gabe turns to Hina and says, “Listen, I think the ACLU does a good thing by challenging the government and forcing it to defend its practices. But I think there is a danger that all the energy going into exposing the wrongdoings, the shortcomings, that’s forcing the intelligence apparatus to focus not on stopping terrorism but justifying its own practices. I think that’s very dangerous. I think that’s setting us up for another attack.” Your reaction?
BW: You would think that bombs are going off in malls every day, when in fact every year more Americans are killed by their furniture than by terrorists. Honestly, the idea that we should all be trembling in fear from terrorists is a huge lie and a disservice that is being peddled by the security state to support budgets and authorities. My response to Schoenfeld is that terrorism is an ineradicable and non-existential threat. The idea that it should be the kind of national priority that sucks up significant political energy—and tens of billions of dollars a year—is really the great lie since 9/11.
SG & TP: Do you see this disgruntled reaction come up in legal advocacy?
BW: The term they use for it is “lawfare”—as if we are using law to illegitimately tie the hands of the country’s noble defenders, when the principles that we’re trying to enforce are those that the United States has fought for in every previous conflict. We’re supposed to believe that the Geneva Conventions are some sort of quaint and obsolete restraint on government authority, when in fact they were written by people who had just witnessed the butchery of 50 million people around the world. It’s about the least naïve document you could come across.
SG & TP: The ACLU is currently litigating Wikimedia v. NSA, a case in which The Nation is also a plaintiff. Can you elaborate on the continuities between Wikimedia v. NSA and Clapper v. Amnesty?
The short answer is that Clapper v. Amnesty challenged a program authorized—purportedly authorized—by Section 215 of the Patriot Act, whereas Wikimedia v. NSA challenges a program purportedly authorized by Section 702 of the FISA Amendments Act called “upstream,” where the NSA actually taps into the cables through which Internet traffic travels. It essentially looks at everything that passes through and scans it for various selectors. In our view, what the two cases have in common is that they put seizure before suspicion: The government can grab everything, search through it for what they find suspicious, and the grab those things. Both of those programs reek of what the framers would have called “general warrants.” Remember, general warrants were when the Crown—the British Crown—would grab documents without suspicion, look through them to find things that were seditious, and then bring charges and punishment against people. The Fourth Amendment was promulgated essentially to say, No, unless the government had good reason to think that you were doing something wrong, it doesn’t get to seize your communications and search them. Suspicion has to come before seizure. Not the other way around.
SG & TP: Can you elaborate on a phenomenon that you’ve called the “Snowden effect”? What’s changed in the legal arena since his revelations? You’ve mentioned that one of the first questions he ever asked you was, “Do you have standing now?”
BW: The problem with trying to bring the actions of the intelligence community into the federal court system has been various justiciability doctrines that have been used to prevent the courts from answering the question of whether those programs have been legal. For example, when we tried for a decade to bring the claims of torture victims to US courts, we were told time and again that the subject matter was too secret and therefore our clients were out of luck and wouldn’t even get an answer to the question of whether the Bush administration had broken the law.
With surveillance, in a sense, it was even more difficult. Before Snowden, we had good reason to believe that people like us were being swept up in the NSA’s dragnet, but we didn’t have the evidence. In March of 2013, before the first Snowden disclosures, the Supreme Court in a 5-4 decision [in Clapper v. Amnesty] essentially threw us out. Not because it held that the NSA program we were challenging was lawful, but because it said we had no right to be in court; that our claims that our plaintiffs were implicated were speculative and therefore we didn’t have standing to litigate. Post-Snowden, at least with respect to some programs, that has been turned around.
The first disclosure involved the NSA’s program to collect the phone metadata of all Americans every day, to be stored for five years. The particular document that was published was an order to a company called Verizon Business records, which is the ACLU’s phone provider. Within a week, we were in federal court with this ticket that been provided by Snowden, and in fact the court did address the legality of the program on the merits, and the Court of Appeals for the Second Circuit unanimously held that the program was illegal and always had been illegal.
This kind of holding would have been inconceivable without Snowden. I think he did more than just give us a document to aid our standing. He created a new climate in which courts were more likely to take our claims seriously. Courts are supposed to be insulated from public opinion through life tenure and other protections, but in fact courts are made up of judges, and judges are human beings. And in the same way that after 9/11 courts bent over backwards to accommodate the government, after Snowden we’re seeing a new kind of skepticism.
SG & TP: Do you have any predictions regarding the future of civil liberties and privacy litigation?
BW: The one thing I will say is that these are not problems that have solutions. In the technology community, people think that all problems can be solved, including politics and law. But that’s not how a civil libertarian sees it. We see it as an ongoing struggle, where various sides get momentum and wind at their backs. I don’t see the intelligence community in the United States as having a glass jaw or being permanently back on its heels because of the events of the last two years. At the same time, I think there is a new energy in institutions that conduct oversight: in the media, the courts, the legislatures. I think that’s a positive. I also think there is more skepticism and more interest on the part of the public, and that’s also a positive development. One of the reasons I am optimistic is because at the state level, where most of these issues play out, there is a winning coalition of people on the left and on the right, who for perhaps different reasons are concerned about privacy and state power. So the momentum in the states is for more legislation to protect privacy, rather than more legislation to empower spies and cops. But that’s the current we’re in now, and it’s very hard to predict where we’ll be in five or 10 years.
