0:04

Welcome to Doha Debates, where we

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explore an urgent issue from various sides

0:09

and try to find common ground. Get

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ready for a conversation that's well-informed,

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spirited, civil, and respectful.

0:16

Hey there, I'm Joshua Johnson, and I will be your

0:18

moderator for this debate. Today we're

0:21

talking about government surveillance,

0:23

the benefits, and the costs. Now

0:26

this debate took on a whole new dimension in 2013

0:29

because of Edward Snowden, a former

0:31

contractor for the U.S. government's National

0:34

Security Agency. He exposed

0:36

a program that had collected data

0:38

from American phone calls. The

0:40

NSA is supposed to focus on

0:43

foreign intelligence, not on spying

0:45

on the United States. So that raised all

0:47

new questions about government surveillance going

0:50

too far.

0:51

But things have gotten much more sophisticated

0:53

since then.

0:55

Facial recognition technology can identify

0:57

people in photos almost instantly. A

1:00

license plate reader can map out your daily

1:02

movements. And closed-circuit TV

1:04

is more abundant than ever. New York

1:07

now has more than 25,000 cameras monitoring

1:09

its streets. And

1:13

according to Amnesty International, they are

1:15

disproportionately placed in predominantly

1:17

black and brown neighborhoods. Supporters

1:20

of this technology might say these tools are

1:22

necessary to keep everyone safe.

1:25

Terrorism has changed the debate over

1:27

surveillance in very big ways, as

1:29

folks in New York very well know. Opponents

1:32

might raise concerns over privacy and

1:34

human rights abuses. China, for example,

1:36

monitors internet searches and social media

1:39

while expanding its use of facial recognition.

1:42

More liberal democracies are also reckoning

1:44

with mass surveillance. For example, last

1:47

year, Belgium passed a data

1:49

retention law which required internet

1:52

providers and telecommunications companies

1:54

to retain

1:55

user data. The year before

1:57

that, the EU's Court of Justice

1:59

ruled that Belgium's prior data

2:01

retention law violated privacy

2:04

rights. So what is the proper

2:06

role of mass surveillance? How

2:08

do we balance individual privacy

2:11

and collective safety? Let's

2:13

get into all of that with today's guests. Joining

2:15

us from Washington, DC is Jamil Jaffer.

2:18

He is the founder and executive director of

2:20

the National Security Institute at

2:22

George Mason University School of

2:24

Law. Jamil Jaffer, welcome. Good to have you with us. Hey,

2:27

Joshua. Glad to be here. Joining us from San Francisco

2:29

is Cindy Cohen. She's the executive director

2:32

of the Electronic Frontier Foundation,

2:34

a nonprofit organization focused on

2:37

civil liberties in the digital world. Cindy

2:39

Cohen, welcome. Thanks. And as always,

2:41

we have a global listener who will have some questions

2:44

for our panelists a little later in

2:46

the debate. Before we begin, I have

2:48

two ground rules. First,

2:51

no personal attacks. We're here to pick

2:53

apart the issue, not each other. Second,

2:56

every question needs a direct answer.

2:59

It's fine to think out loud, of course, but

3:01

please don't pivot to another topic until

3:04

you've answered the question at hand. And please,

3:07

my personal pet peeve, don't

3:10

answer a question with a question.

3:14

If we're agreed on all that, Cindy Cohen, let

3:16

me start with you. EFF has raised concerns

3:19

for years about mass surveillance and

3:21

the concerns over infringing on human

3:23

rights. Summarize

3:26

for us why those concerns exist.

3:28

Well, whether you're talking about

3:30

in the United States as a matter

3:32

of the Fourth Amendment or the First Amendment,

3:34

or you're talking internationally with regard to freedom

3:36

of expression or the need to have government

3:39

activities be necessary and proportionate

3:42

to the government's goals, mass surveillance

3:44

violates those. It

3:46

flips the ordinary idea that

3:48

you are innocent until proven guilty on

3:51

its head and basically puts all of us

3:53

in a perpetual lineup. The

3:55

government's goal in terms of, let's

3:57

just talk about the National Security mass surveillance.

4:00

is to collect it all first

4:03

and then sort out second what it is they

4:05

actually need. This puts people's

4:07

privacy rights, honestly at the bottom

4:09

of the list of things to do. It also impacts

4:12

freedom of expression in terms

4:14

of kind of a rights-based analysis.

4:16

I think there are also serious questions about how effective

4:19

this kind of surveillance can be at scale.

4:22

If you're trying to spy on the entire world,

4:24

you're not gonna do it very well. And

4:27

we see over and over again in

4:29

the context again of the American national security

4:31

infrastructure, they can't do it very well.

4:34

Even the rules that they put in place for themselves,

4:36

which frankly are far too lenient

4:39

for me and for what I think for in

4:41

terms of human rights for people, they can't

4:43

even stick to them. They get in trouble

4:45

over and over again from the very limited

4:48

review that the secret

4:50

FISA court does or the Congress does. So

4:53

I think that it's time for us to acknowledge that

4:55

mass surveillance is not only a problem for

4:57

our rights, but I think there's a real question

4:59

about whether the government, at least

5:01

the US government, but I also think there's a problem internationally

5:04

can even do this at scale in a

5:06

way that is even marginally consistent

5:09

with our values. And I just

5:10

wanna clarify for viewers around the world, FISA,

5:13

the term that Cindy Cohen referred to as

5:15

the Foreign Intelligence Surveillance

5:17

Act. That's an American law that

5:19

requires certain kinds of intelligence to be regulated,

5:22

including being approved by a specific

5:25

judge before they can be enacted.

5:27

Jamil Jaffer, I understand you share some of

5:29

these concerns, but believe that

5:31

surveillance technology can still, broadly speaking,

5:34

be beneficial to society.

5:36

Tell us why. Well, Joshua, I think that's exactly

5:38

right. There are governments in the world that use

5:41

their surveillance capabilities with reckless

5:43

abandon are hugely troubling. Frankly, to be honest

5:45

with you, a lot of those governments are allies

5:47

in Europe who claim to have concerns about privacy

5:49

and the like and tend to be the most voracious

5:52

collectors of intelligence. There are also

5:54

our adversary nations, like China and Russia,

5:56

that sweep up all the communications in countries,

5:59

search it by... keyword and the like, but what we've

6:01

learned about at least American surveillance, as

6:03

it turns out, is that's not how America conducts

6:05

surveillance.

6:06

The national security agency, we now have a

6:08

tremendous amount more information than we

6:10

ever have about American surveillance collection.

6:13

We search for email

6:15

addresses, phone numbers, and the like that

6:17

are specific targeted ones, a

6:19

few hundred thousand of those, and that's

6:21

what our government looks at. I can tell you American

6:24

surveillance under anybody's standards, Cindy's

6:26

or anybody else's, isn't mass surveillance

6:28

as much as Cindy might want it to be, right,

6:30

or might say it is. Like the truth is,

6:32

now that we have all the information, a

6:35

few hundred thousand email addresses and phone numbers across

6:37

the globe being surveilled, chances are

6:39

you're probably not under surveillance by the US government.

6:42

Cindy, go ahead. I mean,

6:43

I just like every single

6:45

time the FISA court has looked at what

6:47

the US government is actually doing, they

6:49

find that the difference between Mr.

6:52

Jaffar's ideal world and what is actually

6:54

happening on the ground is vast. There's

6:57

millions and millions of queries by the FBI alone,

7:00

infecting way more people

7:02

than just who they're supposed

7:03

to. We discovered

7:05

what they called it, Lovins, right? NSA

7:07

officials doing searches on their exes

7:10

to try to find out where they are. So

7:12

the US government is not perfect at this. They're

7:14

not even close to perfect at this. They have

7:16

had to be scaled back over and over and

7:19

over again. And again, I know this is a global audience.

7:21

I think it's really important that we talk about the

7:23

surveillance under executive order 1233 is

7:26

the United States government granting itself

7:30

the ability to spy on the entire world, which

7:32

I think is very inconsistent from international

7:34

law and not necessarily the way the rest

7:36

of the world looks at people who are not

7:39

citizens. But I think that

7:41

the idea that,

7:43

first of all, that only the US government

7:45

would ever be able to do this and that they do it perfectly

7:48

are just not borne out by

7:50

the truth as it trickles out

7:52

of what is an extremely secretive thing.

7:55

I don't think we disagree at all that some of this stuff

7:57

has to be secret. But

7:59

even in the. context of an American warrant,

8:01

eventually you have to tell

8:04

the defendant that you did a wiretap and

8:06

you have to show them the basis upon which

8:08

you did the wiretap. And again, this is a situation

8:10

in which in the national security context,

8:13

the US government has been very, very bad

8:16

at doing that when they've done it at all. And

8:18

there are serious concerns that lots of people

8:20

have been prosecuted in the United States

8:23

without being given fair notice that

8:25

national security warrants were used at them. And

8:28

in fact, it wasn't happening at all until

8:30

the US government got caught lying to the Supreme

8:32

Court about it and had to kind

8:34

of quickly change course and

8:37

start giving some kind of notice, although

8:39

it wasn't enough. So the level of

8:41

secrecy that the government is demanding

8:44

isn't really about protecting their operational

8:46

things now. I think it's about preventing

8:49

the American people from getting a clear enough view

8:51

of this to be able to exercise their democratic

8:53

rights to decide whether this is what

8:55

they want the government to do and to block

8:57

the court. So I think there's

9:00

a huge piece that

9:02

we could do about blocking some of this opacity

9:05

and making some of this more clear and transparency

9:08

is the best disinfectant before we get to

9:10

the, you know, what are the names of

9:12

the terrorists to their tracking? And

9:14

we see the government over claiming secrecy

9:17

all over the place here.

9:18

I do want to be clear also when we talk about

9:20

surveillance, just so everyone is clear,

9:23

I am talking more about for the

9:25

sake of this debate, the kind of broad

9:27

spectrum sweeping, just

9:30

in case we catch something kind of monitoring,

9:32

as opposed to, you know, this

9:35

person is known to be a criminal,

9:37

we want to get this kind of evidence to for this

9:39

kind of case, we'll talk about that

9:41

a little bit later on. But for the purposes

9:44

of this, we really are talking about kind of sweeping

9:47

broad data collection. That's

9:49

kind of what the focus is of our conversation. Cindy,

9:51

go ahead.

9:51

Yeah, I think it's important that we also clarify terms.

9:54

I think the difference is like, are you at the top of the

9:56

funnel or perhaps at the bottom of the

9:58

funnel to be kind? It's

10:00

different than a wiretap

10:02

where you're tapping into one person

10:05

who you've pre-identified and gotten a warrant.

10:07

In my world, and I think actually in most

10:09

people's world, this top

10:12

of the funnel is mass surveillance.

10:14

And we don't just look at the bottom of the funnel. We look at

10:16

all the people who are impacted because there's a lot

10:18

of trouble that can happen between the top of the funnel

10:21

and the bottom of the funnel. And we care about

10:23

the ability to have a private conversation or

10:25

to do private browsing online. And

10:28

the fact that the government looks at

10:30

it and then maybe decides not to target, maybe

10:33

decides not to keep your communication still means

10:35

that it's not private, right? Because

10:37

there is an initial time when they're taking a look

10:39

and deciding if it's the thing they want to keep or not.

10:42

So to me, and I actually think to most

10:44

people around the world, that is mass surveillance.

10:46

And trying to reframe it as targeted

10:48

surveillance by looking at the bottom of the funnel

10:51

instead of the top of the funnel, I think ends up confusing

10:53

people because they tend to think that the only thing

10:55

that's happening is something akin

10:58

to a traditional wiretap where you go to a judge

11:00

and you make a probable cause showing and you get a very

11:02

specific order that lets you just look

11:04

at the person who you've pre-identified. That's

11:07

targeted surveillance. Mass surveillance

11:09

is when you look at everybody and

11:12

are you fishing with a drift net? Are

11:14

you fishing with a line and a pole? And the kind

11:16

of surveillance that EFF has been suing

11:18

about since, frankly, way before Mr.

11:21

Snowden showed up. He did

11:23

a tremendous service to all of us by presenting

11:26

so much information that the government could no longer

11:28

lie and say it wasn't happening. But

11:31

the drift net fishing is something that

11:33

we think is inconsistent with rights

11:35

and that fishing with a line and a pole, some

11:38

surveillance can happen in the instance

11:40

of a probable cause warrant

11:42

made under the Fourth Amendment with a judge.

11:45

That's targeted surveillance. And the broader stuff

11:47

is mass surveillance. So as long as we can agree

11:49

on terms and we can agree or disagree about

11:51

what we like. But I think we have to start by understanding

11:54

the difference between what

11:57

Professor Jaffar said and what I'm talking about.

12:00

is pretty significant in terms of what's

12:02

actually happening.

12:03

Well, let me get deeper into that difference. Jamil

12:05

Jaffir, let me come back to you with regard to that

12:07

funnel. And we mentioned Edward Snowden.

12:09

You have said before that the big

12:12

takeaway from this incident was

12:14

that the data collection was done without

12:17

enough public scrutiny around the process

12:19

and the way that it was done. But the NSA

12:21

has a spy agency. Their job is to keep

12:23

secrets. Is it even possible

12:26

to do this with public scrutiny

12:28

to make the funnel a little more like,

12:30

I know I'm getting too deep into this metaphor, but more

12:33

like a colander that is still able to

12:35

do all of this filtering, but

12:37

in a way that is not quite so

12:39

opaque. It feels like the opacity

12:42

of the process is kind of necessary

12:45

for it to work at all,

12:48

and it seems impossible to do

12:50

it really with public

12:52

scrutiny. Well, Joshua, it's

12:54

a great question. I think there is a way to do it. With

12:57

some amount of scrutiny, both public and

12:59

non-public, look, when we're talking

13:01

about who the targets of surveillance are,

13:04

we never reveal that publicly. We don't do that

13:06

in the case of criminal surveillance. Right? When you go

13:08

get a warrant, you go to a federal judge, you're

13:10

a U.S. attorney, and you go get a

13:12

warrant to surveil a criminal

13:15

defendant or a criminal suspect, right?

13:17

You don't tell that criminal defendant

13:19

or suspect that they're under surveillance. You don't

13:21

tell their attorney it happens ex

13:23

parte and in camera behind closed doors,

13:26

just a lawyer for the government, just that federal judge

13:29

approving the warrant. Same thing is true

13:31

in the foreign intelligence surveillance context. Right? We

13:33

get orders for individuals behind

13:35

closed doors with a federal judge. That's

13:38

for individuals in the United States or

13:40

American citizens anywhere around the globe.

13:43

They get an individualized warrant process because they have

13:45

rights under the U.S. Constitution. When it comes

13:47

to foreigners located looking outside the United

13:49

States, that is to say non-Americans, they

13:52

don't have rights under our Constitution. But

13:54

nonetheless, we go through a process to get the surveillance

13:56

overall approved for an entire year and

13:59

an individual. targets get an individualized determination

14:02

within the agencies. And so, you know,

14:04

it turns out it's great now that with Edward Snowden's

14:06

revelations, unlawful, illegal,

14:09

they may have been, that we are able to

14:11

talk about this a lot better. And so it's important to talk

14:13

about, we talk about this idea of mass surveillance,

14:15

it is actually just like a colander. And

14:18

so while it's true that all the water that

14:20

goes through the colander goes through the colander,

14:22

all that gets left behind and that's looked at are

14:24

is that pasta, right? That's in the top of the colander,

14:27

the salad or whatever it is. I knew I carried this

14:29

metaphor too far. I knew I went too far with it. But

14:32

here's the beauty of it, right, Joshua, which

14:34

is that, you know, to Citi's point, we're

14:37

not actually looking at any

14:39

of that water that's going through, what's being looked at

14:41

are those targeted few hundred thousand

14:44

email addresses, phone numbers and the like that

14:46

are under collection. So while we

14:48

put the net in the stream, right, you

14:50

have to dip the net, whatever size the

14:52

net is, whether it's a fishing line or a net, you

14:55

got to put it in the ocean to catch the fish, right?

14:57

That's certainly true. And I guess in some sense,

15:00

you're filtering all the water in the global

15:02

ocean through that net, right? All you're pulling

15:04

out of the water that you actually put

15:06

in the boat, right, or look at are

15:08

those few hundred thousand selectors. So to

15:10

me, even under the under what Cindy

15:13

describes as the average Americans understanding of filtering

15:15

or searching or or the like, that

15:18

is targeted. We're not taking everything

15:20

in the ocean and reviewing it. We're taking the

15:23

information from a few hundred thousand selectors,

15:26

cell phone numbers, email addresses, that's what the government's

15:28

looking at, even in its broadest collection

15:30

program.

15:31

One of the problems of this is that

15:33

the consequences of mass surveillance don't

15:36

land evenly across our society.

15:39

It tends pretty much consistently

15:41

every time we've looked at it to disproportionately

15:43

affect marginalized people, people who already

15:46

have a hard time having their voices heard or

15:48

their needs considered or to be

15:51

treated fairly by law enforcement. You

15:53

know, facial recognition has had several

15:55

incidents of mistaken identity.

15:58

All of those are

15:59

people. of color.

16:01

So it's not just that it's bad,

16:03

it's that it's bad in a way that essentially

16:06

hypercharges the discrimination that we're

16:08

already trying to fight in our society.

16:10

Let me ask you, Cindy, a little bit further about, and

16:12

ask both of you actually about, some of the the

16:15

principles underlying this, just to kind

16:17

of pull us away from specifically

16:20

US or Western law and

16:23

mores necessarily. I understand

16:26

that you know everyone's gonna view this slightly differently, different

16:28

countries have slightly different kinds of rules in terms

16:30

of free speech and privacy and the proper

16:32

rule of government and so on.

16:34

I think that the core arguments

16:37

include that the

16:40

adversaries of insert

16:42

government here don't care

16:44

about our lives, let alone our liberties,

16:47

and that there is a reasonable

16:50

realm in which it can be acceptable

16:52

to subject

16:54

people, you know, even in more

16:57

covert ways, to more

16:59

surveillance as a way of

17:01

catching adversaries we're not prepared for, of

17:04

preventing things before they happen, that it would

17:06

be better to apologize to you later,

17:08

hey Josh, sorry we

17:10

went through your Facebook history through

17:12

all the sites that you're a member of, we

17:14

caught this person but this happened, sorry

17:17

it happened but we saved some lives, that that

17:20

would be preferable to, hey

17:22

Joshua I'm sorry we didn't go through

17:24

your Facebook history to catch this person

17:27

who ended up detonating a bomb

17:29

that killed your parents, you know what I'm saying, like

17:31

that is the real world rationale

17:34

behind some of the people who are within

17:36

these intelligence apparatuses and

17:39

it's persuade, like if

17:41

you can save mom's life and dad's

17:43

life by kind of going through my

17:45

posts on Instagram, I can understand

17:48

why someone might say that's a reasonable sacrifice, I

17:50

know you don't but I want you to explain why

17:52

that's not a reasonable sacrifice.

17:54

I mean let's just start with we're not living in an

17:56

episode of 24 right, like

17:59

I think that that the argument that mass surveillance

18:01

works in this way is a product

18:04

of wishful thinking and, frankly,

18:09

too much TV. It

18:12

doesn't work like that. And again, I think that

18:14

right now the people of Israel are discovering

18:16

that the mass surveillance that they embraced

18:19

and did didn't work

18:21

in the way that they had hoped it would work.

18:23

And that is a tragedy and a horror, but I think

18:25

it does require us to think seriously about

18:28

whether mass surveillance is actually working

18:30

in the real world the way that it works when

18:32

Keith or Sutherland has a script that tells

18:34

him how this kind of things works. So

18:37

I think there is a serious question about

18:40

whether it works in the way that you're talking about.

18:42

And the fact that you can dream up a scenario

18:44

in which your mother was saved is not the same

18:46

thing as real intelligence and real

18:48

thinking about what works and what doesn't work, especially

18:51

again at scale, right? We're

18:53

not talking about individual, we're

18:55

not talking about systems of individual

18:57

investigations here. We're talking about

19:00

the massive top of the funnel

19:02

to the bottom of the funnel kind of idea, as

19:04

opposed to I've got evidence that there

19:06

might be somebody in who you're

19:09

communicating with who is a spy and

19:12

I want an individual warrant to go after

19:14

that. We're not talking about that. We're talking about a different

19:16

kind of surveillance with a different kind

19:18

of proposition. So I think I just wanna

19:20

be really clear about that because often we get these

19:23

targeted stories, real targeted

19:25

stories as a justification for something that isn't

19:27

actually targeted at all.

19:30

And I think the second thing is that, so I don't

19:32

think it is work, but more importantly, we have to decide

19:34

what kind of society we live in, right?

19:36

If it makes you safer to have everybody

19:39

who you're afraid of in jail, we

19:41

still don't do that as a society, right?

19:43

We make the people who are trying to keep

19:45

us safe consistent with our values

19:48

and abandoning our values because the people

19:50

on the other side don't have values. I mean,

19:52

that's just a race to the bottom in terms

19:54

of people's rights and liberties

19:57

and privacy. And as I mentioned,

19:59

this is gonna. disproportionately

20:01

affect marginalized people, not

20:03

people who already have power in society.

20:05

That's just how this works. So I

20:08

don't think that this preposition, I think that this

20:10

preposition is largely, it's

20:12

informed by a lot of fantasy and

20:15

that we need to put the intelligence

20:17

community to its real paces. What we see

20:20

in the debate right now in the United States about renewing

20:22

section 702 is cherry-picked

20:24

examples run past the

20:27

public without a broader view of what is

20:29

this costing us? How often are they wrong?

20:31

What is the cost of these kinds

20:34

of things? And you really shouldn't let the

20:36

people who want the power to continue to have

20:38

the power to decide to tell you which

20:41

of their stories are successes and which of their stories

20:43

are not.

20:44

All right, now let's go to our global listener and

20:46

get another question about mass

20:48

surveillance. We are pleased to welcome

20:51

Isra Fazulay. She's a journalism student

20:53

at Northwestern University in Qatar. And

20:55

her studies have included corporate surveillance

20:58

and she has a question about that for you. Jamil

21:01

Jaffer, Isra, welcome. What's on your mind?

21:03

Thank you so much for having me. So

21:05

I wanted to ask you Jamil in your opinion,

21:08

are there specific legal frameworks or oversights

21:11

that can be put in place or that have

21:13

been put in place to prevent

21:15

potential abuse of mass surveillance programs

21:17

used by private companies or

21:19

entities such as social media platforms?

21:22

A very simple example is algorithms, ensuring

21:24

that citizens privacy rights are safeguarded

21:27

while addressing security concerns effectively.

21:30

It's a great question and a really important one, Isra.

21:32

You know, the general framework, at least in the United

21:34

States, when it comes to the collection

21:37

of information by private parties is

21:39

individuals can either consent to or

21:42

not consent to the collection

21:44

of information. I think the challenge with social

21:46

media companies more often than not is that when

21:48

you and I sign up for Facebook

21:51

or you do a Google search or sign up

21:53

for Gmail or the like, we

21:55

consent to them reviewing our

21:57

data, right? Now they have privacy policies.

22:00

and did these long forms and nobody reads them, right? We all just scroll

22:02

through, yes, yes, yes. We click go, right?

22:04

Because we want access to Gmail, we want access

22:06

to Facebook or Instagram or whatever, but

22:08

we are voluntarily giving our information

22:11

to these companies. You know, there's this old saw that

22:13

says, if you don't know what

22:15

the product is that somebody's selling you, it's because

22:17

you're the product. Right? And what these

22:19

companies do and the way they make money, right, is they collect

22:21

our information, they learn about us, and they

22:23

sell that information to other people or they send us advertising,

22:26

right? I mean, how do we know this, right? Oftentimes,

22:28

at least back in the day, when you read, you'd

22:30

read a Gmail between you and somebody else

22:32

in email that came on Gmail, between you and a friend,

22:35

you'd start getting ads about that Gmail. We're

22:37

talking about a vacation in Puerto Rico, and

22:39

you start getting ads about Puerto Rico. We

22:41

all knew that was happening. We didn't, some people didn't

22:43

like it, some people liked it, but we all kept using

22:45

Gmail, right? We could go to a lot

22:48

of other more privacy protective services

22:50

that don't do that. We're making a conscious choice, and

22:52

in America at least, the rule is,

22:55

if you consent, that's your choice,

22:57

right? There are frameworks in Europe,

23:00

you have the General Data Protection

23:02

Regulations, GDPR, that have

23:04

provided a layer of what

23:06

the Europeans call privacy rights on top of

23:08

it. I'd ask you to really dig into that and

23:11

see whether there are real privacy rights actually being effectuated.

23:13

I don't think there are to be candid with you, and frankly,

23:15

the way the Europeans have used it, it's been a cudgel

23:18

against American companies. It hasn't really

23:20

protected the privacy of Europeans. All of us have

23:22

to click through all sorts of banner ads on our webpages,

23:25

but we all say yes anyway, we all consent

23:27

nine times out of 10. I happen to reject a lot of them, but

23:30

I still end up going to that webpage, they still collect

23:32

some of my information because it's necessary, right?

23:34

So I think GDPR in large part has

23:36

been a total nothing burger, and the only thing it's

23:38

really done is given Europe a tool to hit American

23:41

companies over the head and not really successfully

23:43

protect anybody's privacy, but there

23:45

are these regimes that have propped up, but

23:48

by and large in the US, our view is if you consent,

23:50

it's

23:51

your choice. Israel, let me come back to

23:53

you and just get your reaction to that, and

23:55

then Cindy, I'll bring you back in. Israel?

23:56

Yeah, that was very insightful, Jamil. I

23:59

am studying. journalism I have a

24:01

minor in strategic communications where

24:03

we learn a lot about the PR and marketing

24:05

agencies and Something that

24:07

those agencies use their favor is a third

24:10

party that is part of you know

24:12

Kind of getting this information or research from

24:14

from social media or let's say that the

24:16

hearing Mechanisms of what people

24:19

you know are looking for and

24:21

in that sense are people consenting

24:23

to that Do you think that people know about

24:26

this really like when they are consenting to the

24:28

social media uses?

24:29

Yeah, it's a great question It's hard to

24:31

know whether people actually know what they're consenting to and

24:33

that may be part of the problem is people are

24:36

saying yes But they don't know what they're saying Yes, too now

24:38

it turns out that in a lot of these circumstances you are

24:41

consenting to these people that collected in the

24:43

first instance the Facebook's the Google's the Instagram's

24:45

whatever your consent you then selling it

24:47

to a third party that then aggregates it

24:49

from multiple different sources and Essentially

24:52

can create a dossier on you, right? You know

24:54

you look at services like Lexus and

24:56

choice point I'm in the light they have

24:58

information for a variety of sources all collected

25:01

Usually as far as I know with consent and

25:03

they're combining the data and then providing it to other

25:05

people right now You'll hear people say well, you

25:08

know, that's not fair That's not appropriate and you could put

25:10

constraints on those companies if you wanted to write But

25:12

recognize that changes a business model and

25:14

recognize that most people are saying yes to those things

25:16

now If we don't if we want to inform

25:19

people better give them more information about what's

25:21

being collected and why it's being collected Right

25:23

the Europeans have tried to do that with GDPR I

25:25

do worry that we're creating a lot of roadblocks

25:28

and not really creating effective solutions

25:30

Actually help people protect their own privacy

25:33

not informing them effectively They're feel-good

25:35

measures and then they don't really do anything

25:37

effective on the back end

25:38

Cindy. How do you see it?

25:40

I don't know that they disagree very much.

25:42

I think well, I think I do about consent I

25:44

think it does violence to the definition of consent

25:46

to say that people consent given how little people Understand

25:49

and how badly written those terms

25:51

of service are I mean when you know I went to law

25:53

school consent men and meetings at the mind where you

25:55

sit down and you both know what you're agreeing to And

25:57

you sign on these are these are one-sided

26:00

contracts, not written in your favor,

26:03

very unclear about what's happening. And I think

26:05

you're right to talk about the data brokers, right,

26:08

not the people who collect it in the first place, but the people

26:10

behind it who are shadowy and less able

26:12

to spot who are doing a lot. Now

26:14

we just passed a data broker bill in California

26:17

right now. We also have a comprehensive, we

26:19

have a privacy law. We'll see EFF

26:22

has supported a much stronger kind

26:24

of privacy law than the one in California,

26:27

the one in the EU and even one nationally,

26:29

kind of working in a slightly different way than

26:31

just giving people a whole lot more

26:34

click-throughs, but more actually limiting

26:36

some of the pieces of the surveillance

26:39

business model. You know, the

26:41

kinds of algorithmic decision-making

26:44

that is based upon tracking every single thing you

26:46

do and then trying to predict what you're going to do

26:48

next requires a lot more data than

26:51

just, you know, I'm searching for

26:53

shoes on my favorite search engine and an ad

26:55

for shoes comes up. So the difference between

26:57

contextual advertising, which is the

27:00

shoe example I gave you, and the kind of predictive

27:02

advertising is a difference

27:05

that we could decide that we don't like that

27:07

business model, that it causes more harm

27:09

than is good. It doesn't kill, it's not

27:12

gonna, I don't think it's gonna kill the internet.

27:14

The marginal difference in terms of ad

27:16

revenue between these two kinds of advertising

27:19

has been demonstrated by actually some forks at George

27:21

Mason and elsewhere to be pretty small,

27:24

but we would gather a lot more of our privacy

27:26

back, a lot more of the skeevy, nasty

27:28

things that are happening in the data broker worlds would

27:30

go away if we just drew that line. And I think

27:33

we can draw that line. So that's one of the things that

27:35

EFF has advocated for. There

27:37

are a bunch of proposals for how to regain our

27:39

privacy, but I think that we've

27:41

let this fiction that people are consenting

27:44

to things that are really not what

27:46

people would do if they had real choices. And

27:49

we're interpreting the fact that people feel

27:51

like they don't have very many and very good choices

27:53

as consent to the world as it is for far

27:56

too long. And it's time to actually

27:58

change course. And the good news is, We have

28:00

lots of ideas about how to do that.

28:02

Let's wrap up today's discussion with a few more areas

28:04

where our two panelists hear

28:07

some agreement. And I've already heard a few points

28:09

of agreement between the two of you. It seems like

28:11

a lot of, at least the bulk of what you

28:13

disagree on is about kind of

28:15

the way that these surveillance

28:19

or the oversight or

28:21

law enforcement tools are implemented,

28:24

but there are a lot of overlaps, at least in terms

28:26

of some of what I've heard you both say. Cindy,

28:28

let me stick with you as we wind down. Where

28:31

do you hear some areas of agreement

28:34

on this issue?

28:34

Well, I mean, I think that we agree that American

28:37

values, actually international human rights values

28:39

are important and they can't be tossed aside

28:41

because of the things of today and

28:43

I really appreciate that. That is something that

28:46

I think people in government and people like

28:49

me who are often trying to hold them to account

28:51

always can agree on, that rule

28:53

of law is important, rules are important,

28:56

and that the fact that

28:57

the people who we might be trying to fight

29:00

don't have values, there's no reason for us

29:02

to put them on the shelf. So I think that's an

29:05

area where there's broad agreement. And then

29:07

once we have that, then we can begin

29:09

to talk about what

29:10

the rules ought to be. And Jamil

29:12

Jaffer, before we go, areas where we

29:14

have some agreement or overlap.

29:16

Yeah, look, I think Cindy and I agree on

29:19

that you have to look at both the top of the funnel

29:21

and the bottom of the funnel to understand what

29:23

is it that funnel is doing, right? I think we

29:25

just disagree about what the top of it looks like. Is it

29:27

the whole ocean that you're dipping the net in or

29:29

is it just the fish that are going through the net and that

29:31

are getting caught in the net that we're talking about? I think

29:34

it's that simple a distinction, but I think we agree

29:36

that you've got to understand both of those things

29:39

and share a commonality of viewpoints on

29:41

that. And I think at the end of the day, what really

29:43

matters here, right? Is that the

29:45

rule of law matters and operating

29:48

under the rule a lot. Whether you think the rule of law

29:50

is perfect or not, that's

29:52

a debate that we can have, but we can only have those

29:55

in societies under constructs

29:57

where people believe the rule of law and believe.

30:00

separation of powers and those things are actually implemented

30:02

in a serious and effective way and I think we both agree on

30:05

that as well.

30:06

Jamil Jaffer and Cindy Cohn, I

30:08

appreciate you both being here for

30:10

a terrific debate. We have worked our way through funnels

30:12

and colanders and nets and pipes.

30:14

We've gone through the whole hardware store today but

30:17

I think that there have been some really worthwhile

30:20

points in terms of the values

30:22

that we hold or we say we hold and

30:24

how we enact those values within the

30:26

sense of a rule of law of

30:29

human rights and I think you've helped us really

30:31

dig into some of those fine points very

30:33

very clearly. Thank you both for a great debate

30:36

and to our global listener, Israf Fezoulai, best

30:38

of luck to you at Northwestern and thank you also

30:40

for making time for us. Doha Debates

30:42

is a production of Qatar Foundation. Our podcast

30:45

is produced by FP Studios and Doha

30:48

Debates. Our producers include Ashley

30:50

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30:52

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30:55

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30:57

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31:31

I'm Joshua Johnson. Thanks for listening.