We may never know whether it was the quality of the lecture or the prospect of two mandatory continuing legal education credit-hours that kept close to two hundred attendees glued to their seats for two hours without air-conditioning in Boalt Hall’s Booth Auditorium on a very hot October 6. It’s a fair bet that when the Berkeley Center for Law Technology’s 7th Annual Privacy Lecture ended, its attendees took away some compelling insights into government surveillance cases they may be asked to argue.
The lecture was moderated by Paul Schwartz, Jefferson E. Peyser professor of law at the University of California, Berkeley School of Law, and featured Cambridge University’s professor of security engineering, Ross Anderson, who presented highlights from his paper, Privacy vs. Government Surveillance: Where Network Effects Meet Public Choice. Three commentators with practices spanning intelligence risk management, innovation economics and international law were also on board to offer alternate perspectives about Anderson’s work.
Anderson has garnered a fair amount of press lately for offering less-traveled opinions about the fallout from Snowden-based leaks. Representing more than just a chilling narrative of international spy intrigue, Anderson argues that the revelations also offer a rare view about the economics of surveillance, a dynamic he says is a critical driver shaping the future of government surveillance, at both the domestic and international levels. The legal community should take particular note, he adds, because this dynamic will eventually find its way into U.S. courtrooms where the ‘separation of powers’ may be tested.
Those who understand the playbook that vaulted such companies as Google Inc., Microsoft Corp. and Facebook to the pantheon of tech dominance will see very similar tactics at play in the evolving landscape of government surveillance networks. Anderson says that the same forces that create monopolies in the private sector—network effects, technical lock-in and low margins—are also at work in the public sector:
When faced with the choice of aligning themselves with a small “spy network” like Russia or a much larger one, like the U.S., smaller nations will likely opt for the larger one, where the network effect of critical mass comes into play.
Cisco’s domination of the router market created the technical lock-in that forced China, which didn’t want to use U.S. products, to take the more expensive path of using Huawei Technologies Co., a Chinese vendor, to build out the country’s communications infrastructure.
PRISM, the National Security Agency’s mass electronic surveillance data mining project, gets cheap access (low margins) to customer data from such avid collectors as Google and Facebook.
And it is similar economic forces that will likely create “one of the thorniest problems for courts and legislators in the short-to-medium term,” Anderson predicts. Snowden’s findings revealed just how intermingled are the workings of U.S. law enforcement and intelligence agencies. So much so that PRISM, says Anderson, is essentially an “NSA code word for a data feed managed by the FBI.” And it may only be a matter of time, driven by the pressures of economics, that these agencies follow the pattern of information networks, and merge.
Carl Shapiro, Transamerica professor of business strategy at UC-Berkeley, suggested that many barriers still exist to a scenario where such U.S. agencies as law enforcement and intelligence could successfully merge, citing a long tradition of not sharing information. Law enforcement faces other challenges too, said James Aguilina, executive managing director of the intelligence and risk management firm, Stroz Friedberg. “They still need resources and training to deal with digital evidence.”
It’s time to think about establishing a “global due process”, advocated Anupam Chander, director of the California International Law Center, University of California, Davis. “Soon even the countries that now try to sequester user data will be sharing it with everyone else.” It’s a fertile area for future treaties. But whether nations will find and exert the collective will needed to make it happen, Chander says, is anyone’s guess.