Permanent Record (30 page)

6.19.2013–6.20.2013

While the rest of the country is coming to grips with the fact that their privacy is being violated, mine’s being stripped from me on a whole new level. Both things thanks to Ed. I hate sending Chuck “departure updates,” and then I hate myself that I don’t have the nerve not to send them. The worst was this one night sending a “departure update” that I’m leaving to meet Sandra and then getting lost on the way but not wanting to stop and ask the agents following me for help, so I was just leading them around in circles. I got to thinking maybe they’d bugged Eileen’s car, so I began talking aloud in the car, thinking maybe they could hear me. I wasn’t talking, I was cursing them out. I had to pay Jerry, and after I did all I could think about was all the tax money being wasted on just following me to my lawyer’s office and the gym. After the first two days of meetings I’d
already run out of the only decent clothes I had, so I went to Macy’s. Agents followed me around the women’s department. I wondered if they’d come into the fitting room, too, and tell me that looks good, that doesn’t, green’s not your color. At the fitting room’s entrance was a TV blaring the news and I froze when the announcer said “Edward Snowden’s girlfriend.” I fled the stall, and stood in front of the screen. Watching as my photos flicked by. I whipped out my phone and made the mistake of Googling myself. So many comments labeling me a stripper or whore. None of this is me. Just like the feds, they had already decided who I was.

6.22.2013–6.24.2013

Interrogations over, for now. But a tail still following. I left the house, happy to get back in the air at this local aerial silks studio. Made it to the studio and couldn’t find street parking, but my tail did. He had to leave his spot when I drove out of range, so I doubled back and stole his spot. Had a phone call with Wendy, where we both said that however badly Ed hurt us, he did the right thing by trying to ensure that when he was gone, Wendy and I were together. That’s why he’d invited her and been so insistent about her coming. He’d wanted us to be together in Hawaii when he went public, so that we could keep each other company and give each other strength and comfort. It’s so hard to be angry at someone you love. And even harder to be angry at someone you love and respect for doing the right thing. Wendy and I were both in tears and then we both went quiet. I think we had the same thought, at the same time. How can we talk like normal people when they’re eavesdropping on all our calls?

6.25.2013

LAX to HNL. Wore the copper-colored wig to the airport, through security, and throughout the flight. Sandra came with. We grabbed a gross preflight lunch in the food court. More TVs tuned to CNN, still showing Ed, and still surreal, which is the new real for everyone, I think. Got a text from Agent Mike, telling me and Sandra to come see him at Gate 73. Really? He came up to LA from San Diego? Gate 73 was roped off and empty. Mike was sitting waiting for us on a row of chairs. He crossed his legs and showed us he was wearing an ankle pistol. More macho bullshit intimidation. He had paperwork for me to sign in order for the FBI to release Ed’s car keys to me in Hawaii. He said two agents would be waiting for us in Honolulu with the key. Other agents would be with us on the flight. He apologized that he wasn’t coming personally. Ugh.

6.29.2013

Been packing the house for days now with only minor interruptions from the FBI, coming by with more forms to sign. It’s torture, going through everything. Finding all these little things that remind me of him. I’m like a crazy woman, cleaning up, and then just gazing at his side of the bed. More often, though, I find what’s missing. What the FBI took. Technology, yes, but also books. What they left behind were footprints, scuff marks on the walls, and dust.

6.30.2013

Waipahu yard sale. Three men responded to Sandra’s “take it all, best offer” Craigslisting. They showed up to rummage through Ed’s life, his piano, guitar, and weight set. Anything
I couldn’t bear to live with or afford to ship to the mainland. The men filled their pickup with as much as they could, and then came back for a second load. To my surprise, and I think to Sandra’s, too, I wasn’t too bothered by their scavenging. But the moment they were gone, the second time, I lost it.

7.2.2013

Everything got shipped today, except the futons and couch, which I’m just ditching. All that was left of Ed’s stuff after the FBI raided the house fit into one small cardboard box. Some photos and his clothes, lots of mismatched socks. Nothing that could be used as evidence in court, just evidence of our life together. Sandra brought some lighter fluid and brought the metal trash can back around to the lanai. I dumped all of Ed’s stuff, the photos and clothes, inside, and lit a book of matches on fire and tossed it in. Sandra and I sat around while it burned and the smoke rose into the sky. The glow and the smoke reminded me of the trip I took with Wendy to Kilauea, the volcano on the Big Island. That was just over a month ago, but it feels like years in the past. How could we have known that our own lives were about to erupt? That Volcano Ed was going to destroy everything? But I remember the guide at Kilauea saying that volcanoes are only destructive in the short term. In the long term, they move the world. They create islands, cool the planet, and enrich the soil. Their lava flows uncontrolled and then cools and hardens. The ash they shoot into the air sprinkles down as minerals, which fertilize the earth and make new life grow.

If at any point during your journey through this book you paused for a moment over a term you wanted to clarify or investigate further and typed it into a search engine—and if that term happened to be in some way suspicious, a term like XKEYSCORE, for example—then congrats: you’re in the system, a victim of your own curiosity.

But even if you didn’t search for anything online, it wouldn’t take much for an interested government to find out that you’ve been reading this book. At the very least, it wouldn’t take much to find out that you have it, whether you downloaded it illegally or bought a hard copy online or purchased it at a brick-and-mortar store with a credit card.

All you wanted to do was to read—to take part in that most intensely intimate human act, the joining of minds through language. But that was more than enough. Your natural desire to connect with the world was all the world needed to connect your living, breathing self to a series of globally unique identifiers, such as your email, your phone, and the IP address of your computer. By creating a world-spanning system that tracked these identifiers
across every available channel of electronic communications, the American Intelligence Community gave itself the power to record and store for perpetuity the data of your life.

And that was only the beginning. Because once America’s spy agencies had proven to themselves that it was possible to passively collect all of your communications, they started actively tampering with them, too. By poisoning the messages that were headed your way with snippets of attack code, or “exploits,” they developed the ability to gain possession of more than just your words. Now they were capable of winning total control of your whole device, including its camera and microphone. Which means that if you’re reading this now—this sentence—on any sort of modern machine, like a smartphone or tablet, they can follow along and
read you.
They can tell how quickly or slowly you turn the pages and whether you read the chapters consecutively or skip around. And they’ll gladly endure looking up your nostrils and watching you move your lips as you read, so long as it gets them the data they want and lets them positively identify you.

This is the result of two decades of unchecked innovation—the final product of a political and professional class that dreams itself your master. No matter the place, no matter the time, and no matter what you do, your life has now become an open book.

I
F MASS SURVEILLANCE
was, by definition, a constant presence in daily life, then I wanted the dangers it posed, and the damage it had already done, to be a constant presence too. Through my disclosures to the press, I wanted to make this system known, its existence a fact that my country, and the world, could not ignore.In the years since 2013, awareness has grown, both in scope and subtlety. But in this social media age, we have always to remind ourselves: awareness alone is not enough.

In America, the initial press reports on the disclosures started a “national conversation,” as President Obama himself conceded. While I appreciated the sentiment, I remember wishing that he had
noted that what made it “national,” what made it a “conversation,” was that for the first time the American public was informed enough to have a voice.

The revelations of 2013 particularly roused Congress, both houses of which launched multiple investigations into NSA abuses. Those investigations concluded that the agency had repeatedly lied regarding the nature and efficacy of its mass surveillance programs, even to the most highly cleared Intelligence Committee legislators.

In 2015, a federal court of appeals ruled in the matter of
ACLU v. Clapper
, a suit challenging the legality of the NSA’s phone records collection program. The court ruled that the NSA’s program had violated even the loose standards of the Patriot Act and, moreover, was most probably unconstitutional. The ruling focused on the NSA’s interpretation of Section 215 of the Patriot Act, which allowed the government to demand from third parties “any tangible thing” that it deemed “relevant” to foreign intelligence and terror investigations. In the court’s opinion, the government’s definition of “relevant” was so expansive as to be virtually meaningless. To call some collected data “relevant” merely because it might become relevant at some amorphous point in the future was “unprecedented and unwarranted.” The court’s refusal to accept the government’s definition caused not a few legal scholars to interpret the ruling as casting doubt on the legitimacy of all government bulk-collection programs predicated on this doctrine of future relevance. In the wake of this opinion, Congress passed the USA Freedom Act, which amended Section 215 to explicitly prohibit the bulk collection of Americans’ phone records. Going forward, those records would remain where they originally had been, in the private control of the telecoms, and the government would have to formally request specific ones with a FISC warrant in hand if it wanted to access them.

ACLU v. Clapper
was a notable victory, to be sure. A crucial precedent was set. The court declared that the American public had standing: American citizens had the right to stand in a court
of law and challenge the government’s officially secret system of mass surveillance. But as the numerous other cases that resulted from the disclosures continue to wend their slow and deliberate ways through the courts, it becomes ever clearer to me that the American legal resistance to mass surveillance was just the beta phase of what has to be an international opposition movement, fully implemented across both governments and private sector.

The reaction of technocapitalists to the disclosures was immediate and forceful, proving once again that with extreme hazards come unlikely allies. The documents revealed an NSA so determined to pursue any and all information it perceived as being deliberately kept from it that it had undermined the basic encryption protocols of the Internet—making citizens’ financial and medical records, for example, more vulnerable, and in the process harming businesses that relied on their customers entrusting them with such sensitive data. In response, Apple adopted strong default encryption for its iPhones and iPads, and Google followed suit for its Android products and Chromebooks. But perhaps the most important private-sector change occurred when businesses throughout the world set about switching their website platforms, replacing http (Hypertext Transfer Protocol) with the encrypted https (the S signifies security), which helps prevent third-party interception of Web traffic. The year 2016 was a landmark in tech history, the first year since the invention of the Internet that more Web traffic was encrypted than unencrypted.

The Internet is certainly more secure now than it was in 2013, especially given the sudden global recognition of the need for encrypted tools and apps. I’ve been involved with the design and creation of a few of these myself, through my work heading the Freedom of the Press Foundation, a nonprofit organization dedicated to protecting and empowering public-interest journalism in the new millennium. A major part of the organization’s brief is to preserve and strengthen First and Fourth Amendment rights through the development of encryption technologies. To that end, the FPF financially supports Signal, an encrypted texting and call
ing platform created by Open Whisper Systems, and develops SecureDrop (originally coded by the late Aaron Swartz), an open-source submission system that allows media organizations to securely accept documents from anonymous whistleblowers and other sources. Today, SecureDrop is available in ten languages and used by more than seventy media organizations around the world, including the
New York Times
, the
Washington Post
, the
Guardian
, and the
New Yorker
.

In a perfect world, which is to say in a world that doesn’t exist, just laws would make these tools obsolete. But in the only world we have, they have never been more necessary. A change in the law is infinitely more difficult to achieve than a change in a technological standard, and as long as legal innovation lags behind technological innovation institutions will seek to abuse that disparity in the furtherance of their interests. It falls to independent, open-source hardware and software developers to close that gap by providing the vital civil liberties protections that the law may be unable, or unwilling, to guarantee.

In my current situation, I’m constantly reminded of the fact that the law is country-specific, whereas technology is not. Every nation has its own legal code but the same computer code. Technology crosses borders and carries almost every passport. As the years go by, it has become increasingly apparent to me that legislatively reforming the surveillance regime of the country of my birth won’t necessarily help a journalist or dissident in the country of my exile, but an encrypted smartphone might.

I
NTERNATIONALLY
,
THE DISCLOSURES
helped to revive debates about surveillance in places with long histories of abuses. The countries whose citizenries were most opposed to American mass surveillance were those whose governments had most cooperated with it, from the Five Eyes nations (especially the UK, whose GCHQ remains the NSA’s primary partner) to nations of the European Union. Germany, which has done much to reckon with its
Nazi and Communist past, provides the primary example of this disjunction. Its citizens and legislators were appalled to learn that the NSA was surveilling German communications and had even targeted Chancellor Angela Merkel’s smartphone. At the same time, the BND, Germany’s premier intelligence agency, had collaborated with the NSA in numerous operations, even carrying out certain proxy surveillance initiatives that the NSA was unable or unwilling to undertake on its own.

Nearly every country in the world found itself in a similar bind: its citizens outraged, its government complicit. Any elected government that relies on surveillance to maintain control of a citizenry that regards surveillance as anathema to democracy has effectively ceased to be a democracy. Such cognitive dissonance on a geopolitical scale has helped to bring individual privacy concerns back into the international dialogue within the context of human rights.

For the first time since the end of World War II, liberal democratic governments throughout the world were discussing privacy as the natural, inborn right of every man, woman, and child. In doing so they were harking back to the 1948 UN Universal Declaration of Human Rights, whose Article 12 states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Like all UN declarations, this aspirational document was never enforceable, but it had been intended to inculcate a new basis for transnational civil liberties in a world that had just survived nuclear atrocities and attempted genocides and was facing an unprecedented surfeit of refugees and the stateless.

The EU, still under the sway of this postwar universalist idealism, now became the first transnational body to put these principles into practice, establishing a new directive that seeks to standardize whistleblower protections across its member states, along with a standardized legal framework for privacy protection. In 2016, the EU Parliament passed the General Data Protection Regulation (GDPR), the most significant effort yet made to forestall the incur
sions of technological hegemony—which the EU tends to regard, not unfairly, as an extension of American hegemony.

The GDPR treats the citizens of the European Union, whom it calls “natural persons,” as also being “data subjects”—that is, people who generate personally identifiable data. In the US, data is usually regarded as the property of whoever collects it. But the EU posits data as the property of the person it represents, which allows it to treat our data subjecthood as deserving of civil liberties protections.

The GDPR is undoubtedly a major legal advance, but even its transnationalism is too parochial: the Internet is global. Our natural personhood will never be legally synonymous with our data subjecthood, not least because the former lives in one place at a time while the latter lives in many places simultaneously.

Today, no matter who you are, or where you are, bodily, physically, you are also elsewhere, abroad—multiple selves wandering along the signal paths, with no country to call your own, and yet beholden to the laws of every country through which you pass. The records of a life lived in Geneva dwell in the Beltway. The photos of a wedding in Tokyo are on a honeymoon in Sydney. The videos of a funeral in Varanasi are up on Apple’s iCloud, which is partially located in my home state of North Carolina and partially scattered across the partner servers of Amazon, Google, Microsoft, and Oracle, throughout the EU, UK, South Korea, Singapore, Taiwan, and China.

Our data wanders far and wide. Our data wanders endlessly.

We start generating this data before we are born, when technologies detect us in utero, and our data will continue to proliferate even after we die. Of course, our consciously created memories, the records that we choose to keep, comprise just a sliver of the information that has been wrung out of our lives—most of it unconsciously, or without our consent—by business and government surveillance. We are the first people in the history of the planet for whom this is true, the first people to be burdened with data immortality, the fact that our collected records might have an eternal
existence. This is why we have a special duty. We must ensure that these records of our pasts can’t be turned against us, or turned against our children.

Today, the liberty that we call privacy is being championed by a new generation. Not yet born on 9/11, they have spent their entire lives under the omnipresent specter of this surveillance. These young people who have known no other world have dedicated themselves to imagining one, and it’s their political creativity and technological ingenuity that give me hope.