“It’s all on the Internet,” he explains, “but… people just don’t understand how the Internet works.” According to Lee, people tacitly accept violations of their Internet privacy rights because they simply don’t understand what rights are being violated.
"It’s very dysfunctional from a government reform standpoint,” Lee continues as he sips his Americano. “A lot of what the [National Security Administration] does with dragnet surveillance is very blatantly breaking the Fourth Amendment right of every American. But they have their own rules.” He shrugs.
Lee looks like any Berkeley grad student stopping in at Café Yesterday before heading to campus. He’s tall, lanky, and sports a T-shirt, jeans and a canvas messenger bag. He could be any regular 29-year-old, but he’s not -- he’s the technological brilliance behind First Look Media’s The Intercept and the initial contact for Edward Snowden’s 2013 intelligence leaks.
Lee began his career after dropping out of Boston University to pursue activism. He honed his technical skills as a method of protest and eventually landed a job at the Electronic Frontier Foundation. Now, Lee works as a technology analyst at The Intercept.
“I have a kind of unique job,” says Lee, “we actually just released First Look code. So [for example] one of the things I also help do is redact documents securely and make sure we don’t have any hidden information that we meant to not publish when publishing documents.” The early 2014 redaction failure of the New York Times is a good example of just why Lee’s work is so crucial.
And, according to Lee, there are still quite a few documents left that must be effectively redacted if they’re ever to be released for public consumption. “Yeah, there’s still a lot of documents,” he quips in reference to his 2013 trip to Rio de Janeiro. He visited Intercept journalist Glenn Greenwald and secured his computers containing the remainder of the unreleased Snowden documents.
In fact, Lee was the first person Snowden contacted after struggling to connect with Greenwald. Lee proceeded to facilitate Snowden’s contact with journalist and filmmaker Laura Poitras, who later broke one of the lead stories on the Snowden documents in the Washington Post. Why did Lee take Snowden’s initial anonymous encrypted email seriously when he admitted to receiving many each day?
“He sounded…” Lee pauses. “Sane,” he finally says, laughing nervously. “I had no idea what I was getting into.”
Since the recent expiration of key Patriot Act provisions that the NSA claimed created legality for its metadata collection program and the subsequent passage of the USA Freedom Act, Snowden and his intelligence leaks have come to the forefront of public debate once again. “The legal reforms that have been passing have not been very substantial,” says Lee. “But there’s definitely a shift in debate even if there isn’t a very big shift in reform.”
In the days preceding the vote on the reauthorization of the Patriot Act, many administration officials and members of Congress made public statements regarding the potential dangers of expiration. Even President Obama warned that expiration would threaten national security.
Lee sighs when asked about these statements.
“The legal justification for surveillance has always been terrorism,” he says. “I think that the reason why the Patriot Act provisions expired… is because there hasn’t actually been a very big terrorism problem recently… plus the Snowden documents have just shown how incredibly overboard the government has gone in surveilling everyone. So I think that those two combined make it so that just calling “terrorism” doesn’t always work anymore.”
Even so, threats of terrorism still carry considerable weight in American political discourse, as evidenced by the passage of the Freedom Act shortly after the Patriot Act's expiration. Although the Freedom Act has been touted as a substantial reform to illegal surveillance, many have criticized it as insufficient or even counterproductive.
Lee refers to the Freedom Act as “kind of horrible,” explaining that “[The Freedom Act] for the first time tries to address mass surveillance but also for the first time legalizes chunks of mass surveillance that have always been illegal… [mass surveillance is] being addressed in a very bad way that’s sort of legitimizing all of the stuff that shouldn’t be legitimate.”
Is there hope for legitimately resolving privacy issues, both on a domestic and international level, for U.S. citizens? Not even slightly, according to Lee.
“In terms of legislation, we’re never going to get privacy for everybody and the most we could ever ask for would be ‘it’s not okay to spy on Americans but it’s perfectly okay to spy on anyone else in the world.’ If the NSA were going to change things to start complying with the Constitution and the law, they would have to stop spying on Americans but they could continue to spy on the other 7 billion people. And… I don’t think that [a cessation of domestic spying] is even ever going to happen.”
The main issue, according to Lee, is that substantial efforts at reform have been largely rendered ineffective. “All of the oversight of the intelligence community that got set up in the 1970s… was a really big deal [at the time]… fast-forward 30, 40 years and it’s all backwards now.”
“The FISA Court is a rubber stamp and Congress is… just defending what NSA is doing against people who are trying to reform it.” Lee appears visibly frustrated at the lack of what he refers to as “meaningful oversight.”
In order to strengthen these weak reforms, Lee suggests that the FISA Court stop using “secret legal interpretations” that “[go] against democracy.” He also urges Congress to “be a bit more adversarial to the intelligence community” and “regularly audit for abuse.” These reforms are all much easier said than done, though -- a point he makes before trailing into a glum silence.
Lee is also appalled by the Obama administration’s stance on surveillance and press freedom. “There’s definitely a different climate doing investigative journalism now than there used to be… the Obama administration has just gone overboard with Espionage Act charges on Snowden and several other sources and journalists.”
“The Espionage Act under the Obama administration is being used against journalists and sources when it’s never been used like that in history,” he finishes grimly.
In 2014, President Obama asserted that Snowden shouldn’t have leaked the NSA documents because the issue of illegal surveillance would have inevitably been brought up through secret review processes.
When asked if he agrees with this assertion, Lee looks entertained. “No,” he says, laughing. “I don’t see any evidence that the Obama administration was going to bring up surveillance issues, especially considering that the Obama administration has just been expanding surveillance.”
This expansion under the Obama administration was actually the driving factor in Snowden’s decision to leak, Lee continues. He explains that Snowden considered being a whistleblower “for a long time” under the Bush administration but held out when President Obama was elected because he anticipated positive change. “When things got a lot worse [under the Obama administration], that was when he decided to do it.”
When asked more broadly about whistleblowers, Lee hesitates before giving a concrete answer. “Just because you have access to information about a lot of corruption or a lot of crimes doesn’t necessarily….” He trails off. “I mean, I think that it’s good; I think that it’s necessary for democracy… because whistleblowers are often times the only way that information can get out. It’s just a hard decision….” He stops again.
“Because it might ruin your life.”
***
It’s not just potential whistleblowers and journalists who are at risk either -- average Americans are all potential targets for warrantless surveillance and hacking.
“Everybody is really, really insecure,” he laments.
“It’s definitely not just NSA and FBI… you have to worry about. There’s a lot of off-the-shelf hacking products… it’s easy to dismiss this stuff as being like ‘it’s really complicated, so it’s only NSA and CIA that do it,’ but it’s really not that complicated. You can download free software hacking tools and spend a weekend learning how to use them and then hack a bunch of people.”
At the same time, it’s often difficult for most Americans to find the motivation to protect their information when the process seems more trouble than it’s worth. “I think that it’s a legit criticism that it’s really complicated and hard,” Lee echoes. But he goes on to argue that “everyone has a right to privacy in the United States and everyone also has a right to free speech, but just because you don’t have anything to say doesn’t mean that you don’t have that right anymore.”
“I think that it’s really important to stand up for your privacy rights because otherwise they’re going to go away. They’ve already basically gone away, and the only way to have privacy anymore is to take it into your own hands.”
In preparation for this interview, The Qui Vive attempted to set up encrypted email and found it to be less complicated than expected (which was still quite complicated). There’s a steep learning curve in regards to the vernacular used around encryption, but it’s not impossible to understand and implement.
For those looking to start with something easier, Lee recommends Signal, an iPhone app that sends encrypted messages and makes encrypted phone calls. He also advocates for the use of OTR (Off-The-Record) messaging, an encrypted chat service.
However, using third party hosts (i.e., Google, Apple, Microsoft) for increased security can lead to an “obnoxious tradeoff,” according to Lee. “The Third Party Doctrine… [is] the Justice Department’s legal opinion that when people’s private information is held by a third party, it’s not really their private information. So that means that if you store your messages with your friends on Facebook… it’s not violating your rights if [the government goes] to Facebook and [gets] those messages… I don’t think that this is gonna change. As long as companies and news organizations don’t host their own services… third parties will be the ones getting requests, [since] it’s a lot less risky for leak investigators to send requests to third parties than it is to send requests to journalists.”
The face of journalism has changed rapidly as technology has proliferated. Lee anticipates that as print media dies and online media becomes the dominant form of journalism, news organizations will begin to track their audience in the same way that companies like Facebook and Google do.
“News organizations are gonna be… spying on all of their readers and advertising [to them]… young journalists should be aware of [this trend] and try and fight it.”
Lee also believes that journalism has become more difficult and risky since the advent of the modern surveillance state. “It used to be that when journalists had sensitive sources, they could make a phone call from a pay phone and it was pretty anonymous... now nobody can make a phone call without being tracked… nobody can send emails without being tracked. Nobody can meet in person and carry their cell phone with them without being tracked.”
With the Third Party Doctrine and such constant tracking, being an anonymous source in the twenty-first century is nearly impossible.
***
Lee’s comments emphasize that the state of privacy rights in the United States is much worse than people think. After the Snowden leaks died down, most Americans went back to daily life without much thought. But security issues are only becoming more pertinent, our rights are only being invaded more acutely, and the risk of illegal government overreach is only increasing.
The Freedom Act essentially legalized the parts of the Patriot Act that were abused to justify the NSA metadata program and later ruled illegal. If we write the Fourth Amendment out of the law, does its status as a constitutional right really matter?
It’s frightening to consider that the answer could be no.
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