Much has already been written about the new Snowden movie directed by Oliver Stone and its inaccuracies and exaggerations. However, the hype does underscore two persistent vulnerabilities, technical and constitutional, which represent serious threats to our privacy. Since we can still take action on both, I’d like to examine them here.
For some of us, like Edward Snowden’s girlfriend in the movie, vulnerability of our data can seem vague and generalized. In Snowden, the technical vulnerabilities are acutely personalized. With a click of a button and entry of someone (else’s) email address, live webcam video and intimate personal messages are seemingly available on-demand. The reality is actually scarier than the movie makes it out to be. Our information is exposed to a massive spectrum of threats, and vulnerable to malicious actors, security holes, and incompetence. An email, for instance, could be compromised by your email provider, your recipient’s email provider, your Internet provider, your cloud provider, your government, foreign governments, or hackers.
Given the spectrum of threats, the only reliable response is to stop depending on the myriad devices and services that store our data and start making our data self-protecting. This is not a totally new concept; it can be achieved with existing technology like end-to-end encryption. End-to-end encryption ensures only you and your authorized recipients may have access to your content so that you do not need to trust devices and service providers in between. It is a technical means of embedding the kind of principle we have written in law to protect the US Mail (no snooping!) and into the DNA of our data online. While traditionally difficult to use, new approaches to self-protecting, data-centric security are becoming it easier to add to existing apps.
Stone’s movie also hit on the biggest legal vulnerability threatening our constitutional rights: secret laws being written that avoid the critical checks and balances of the American system of balance of powers.
One key source of these secret threats is the Foreign Intelligence Surveillance Act (FISA) court system, which issues secret rulings that can function as secret law. While Congress may have rightly understood that many aspects of intelligence gathering and judicial oversight must be kept secret – including warrants that can reveal sources, methods, and targets – there was an unintended consequence. Under this framework, the FISA court can grant new authorities via secret court opinion, constituting new law not subject to public scrutiny.
As we now know, without public scrutiny and an adversarial judicial process, these rulings have been demonstrated to violate common assumptions about Constitutional protections provided by the Fourth Amendment. For instance, a 2013 New York Times article revealed that the FISA court determined that collections of data on any American, regardless of connection to foreign enemies, did not violate the Fourth Amendment search and seizure protections.
This legal threat persists today. Some laws have changed, but our information remains exposed. This may seem like an intractable problem: trying to ensure transparency of law while maintaining operational security of our national defense. But there is a solution.
The solution will require an act of Congress mandating that secret rulings made by courts or agencies must include a public, unclassified summary of any legal interpretations made in granting a warrant or issuing a ruling. This can be done without revealing sensitive sources, methods, or targets.
Perhaps the most chilling theme in the movie revolves around potential misuse of surveillance powers by future leaders. In January, we will have a new administration, and our new president will drive his or her agenda on surveillance. Without legal reform and transparency, we will not know how our privacy rights have changed – for the better or the worse. In the meantime, let us make sure our data carries its own protection, end to end, so it is protected regardless of what others do.
As Stone’s movie makes clear, while most of us have “nothing to hide,” we all have information worth protecting.
Edward Snowden will be speaking via video link at the SecTor security conference in Toronto at 9 a.m. ET on Tuesday October 18, and will be taking questions from Dark Reading readers. If you have relevant questions you would like to ask, let the SecTor team know by posting them in the comments section at the bottom of this article. SecTor will be selecting the best to be addressed at the event.
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