The creating of a new American surveillance state.

Byron Tau: So it set me on a four or five-year reporting journey to try to get to the bottom of how digital advertising in this app economy had created a very large data collection enterprise and how governments were taking advantage of this.

Dave Bitner: Hello everyone and welcome to "Caveat", N2K CyberWire's privacy surveillance law and policy podcast. I'm Dave Bittner, and joining me is my co-host, Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hey, Ben.

Ben Yelin: Hello, Dave.

Dave Bitner: On today's show, Ben discusses Supreme Court oral arguments on a case relating to social media censorship. I've got Congress's potential compromise on Section 702. And later in the show, Ben's conversation with Byron Tau, Author, discussing his book, "MEANS OF CONTROL: How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State". While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. [ Music ] All right, Ben. There's been lots going on this week. You want to start things off for us here?

Ben Yelin: Sure. So I spent time, as I love to do, listening to Supreme Court oral arguments yesterday. And this one is really a doozy of a case, and it's a fascinating case. It is Murthy v. Missouri. Murthy refers to Vivek Murthy, who is the Surgeon General of the United States, and Missouri represents itself, the State of Louisiana, and a bunch of individual plaintiffs. This case revolves around social media censorship, specifically the government's role in censorship. So, a bunch of entities feel that they were censored for their views on social media sites. Most of the allegations concerned Facebook and X/Twitter.

Dave Bitner: Right.

Ben Yelin: That they were posting things on vaccinations, or on Hunter Biden's laptop or whatever, and that content was taken down. The allegation is that the government in some way is responsible for those social media companies taking down that content. So, normally you have First Amendment rights only against the government. A social media site can really do whatever it wants. But there is some case law saying that if the government coerces one of these private companies and forces them to deprive somebody else of their First Amendment rights, that counts as state action for the purposes of the First Amendment.

Dave Bitner: You know, I saw an article yesterday where they were referring to this as jawboning.

Ben Yelin: Yeah, I think jawboning is a good way to describe it. And there was actually another twin case that we're not going to talk about here, that was another jaw-boning case that I think the plaintiffs had a much better argument. Here, I think the argument, as reflected in the oral arguments with the Supreme Court justices, was kind of attenuated and I think particularly weak. So a little bit of history here. The original plaintiffs put together, they kept mentioning this 20,000 or whatever pages of records, claiming that there were these conversations between government officials and representatives of these social media companies. Some of these conversations got a little bit harsh. At one point, President Biden accused social media companies of causing people's death because they weren't policing misinformation on the vaccine. He tried to clean that up saying, Well, it's not the social media companies, it's actually the people disseminating that information. Then there's all these private communications they got their hands on. In one of them, a senior White House official is just berating Facebook and telling them, like, you know, You are responsible for the spread of this misinformation, you're going to have blood on your hands. He was using many expletives. Expletives deleted was certainly in the transcript for some of these conversations.

Dave Bitner: Huh.

Ben Yelin: And so the allegation here is that these conversations prove coercion, or at least prove that the government had a major role in these social media companies taking down communications or censoring certain users.

Dave Bitner: Okay.

Ben Yelin: There are a couple of issues here. The first is the question of standing. So, to show standing, it's a three-part test, and I won't get too much into the legalese, but you have to have an injury in fact. Suffering some type of deprivation of constitutional rights is an injury, so, fine. But then you have to have traceability. So, the government's action has to have actually caused the forfeiture of your constitutional rights. It has to be traceable to the government's action. And then there has to be redressability, so some way for the courts to solve the problem. And those last two elements are very problematic here. For the causation element, there's a big time lag. Even the most compelling evidence that the plaintiffs could put up, there's a big time lag here. So one of the plaintiffs is a user on one of the social media sites who had her content taken down in April of 2023.

Dave Bitner: Okay.

Ben Yelin: But the original communications that her attorneys were able to produce between the social media companies and the government actually took place in 2021. So, it's really impossible to say that the government's communication was responsible for Twitter or Facebook taking down any piece of content. A lot of things can happen within two years, and I think that's very compelling and that would certainly cut against standing. And then redressability is a hard one because all of these people have had their accounts restored, largely because on Twitter, Elon Musk restored all of the offensive accounts that were spreading vaccine information.

Dave Bitner: Okay.

Ben Yelin: So that cuts against them too. And then there's this question of the merits of the case. So can the government really do what they were doing? The district court threw up an injunction against named government officials, telling them they cannot communicate at all with various social media companies. And the Fifth Circuit Court of Appeals for the most part upheld that ruling, although they narrowed it to a smaller class of government officials who were prohibited from these communications. And then the Supreme Court, before they took up this case on the merits, submitted an injunction against that district court case. I think the argument here is what really counts as coercion? I think we would all understand that if there were an explicit threat, if somebody from the government says to these companies, We will slap a extra tax on you if you don't take actions, or We will remove your Section 230 protection against civil suits. If there's that type of direct threat, then I think you could attribute that to state action. I think you would have an easier time proving that traceability. But none of the 20,000 or whatever pages of documents here has any indication of that type of quid pro quo. Government officials are berating Facebook and they're berating Twitter, but there's no explicit threat. You know, in a couple of places they mention things that potentially could be done to these companies, but it's never like, If you don't comply with my request, we are going to take adverse action against you. That just is not in the record of the case. And what was really interesting to me in oral arguments is that there are two Supreme Court justices on opposite ends of the ideological spectrum, Justices Kavanaugh and Kagan, who both worked in presidential administrations, and both of them were like, Oh yeah, we did this all the time. Like, we would call members of, they didn't say we, but it's like, Government officials call members of the press, the New York Times, and say, Your story sucks, you know.

Dave Bitner: Right, you got it wrong, you blew it.

Ben Yelin: Yeah, don't -- you know, don't put this up, even if there isn't a type of explicit threat. And for things like national security, I mean, there have been times in the past where there really was censorship, where the government was like, You darn well better not post this or there are going to be serious consequences. I think what the attorneys for these plaintiffs were saying is, Well, you know, for those cases it never got to the point of the type of coercion or badgering that we see here. That's what raises it to a level of a First Amendment violation. But taking them at their word, you would have basically a blanket prohibition on the government serving one of its major functions, which is to speak to the public about matters of great public concern, and, you know, the government itself has -- has free speech rights. One of the most interesting parts of the oral argument is Justice Ketanji Brown Jackson put forward this hypothetical, which I think is great. Which is basically there's some social media craze where kids are encouraged to jump off buildings from increasing heights and --

Dave Bitner: Don't give them any ideas.

Ben Yelin: Exactly. Yeah, I know, that's actually what I was thinking at the time. I was like, Oh no, someone's going to try and do this. Her argument was, like, Of course it would be well within the government's right not only to go public and say this is a terrible idea, but in the interest of protecting public safety to go to these companies and say, both publicly and privately, You have a responsibility to take this down. We are -- we're going to badger you on this because it's in the public interest for you to stop this dangerous thing from happening.

Dave Bitner: Right.

Ben Yelin: We have a compelling interest, even if it is an infringement on what would otherwise be constitutionally protected First Amendment speech, we have a compelling interest to shut it down. So, I know I've been going on for a while here. I will say the upshot of the oral argument is that I think these plaintiffs are going to lose and lose badly. The only two justices who were sympathetic to the plaintiffs were Justices Alito and Thomas, who are always the most conservative justices. They seemed ready to accept that this was just government censorship. I'm a little unsure on Justice Neil Gorsuch, but the other six justices, the three liberal justices, and then Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett seemed very hostile to the plaintiff's argument and seemed like they were going to side with the government here. In fact, the tone of the oral arguments, to me and I think to some other scholars, was basically like, I can't believe the Fifth Circuit ruled the way it did and brought us this case. This is a ridiculous case. Of course the government should be able to communicate with private companies without it being considered censorship.

Dave Bitner: Yeah, I mean, we talk about the bully pulpit, and, I mean, that's part of how stuff gets done, right? I mean --

Ben Yelin: Oh yeah. I mean, they mentioned the bully pulpit extensively in this case. That's one of the key roles of the government, is to use their leverage as an authority. Now, you can question how much authority do they have, you know, are they always telling the truth. But at least in theory, the government has access to knowledge that the general public doesn't have. They have experts in disease surveillance.

Dave Bitner: Right.

Ben Yelin: So it's well within their interest to use that leverage of the bully pulpit to say, You know what, this is BS, this is misinformation, and you have a responsibility as a large social media company to take action. It's also notable that, like, the social media companies frequently say no to the government. Even in these secretive communications, there are many times when the government is like, Do this, and Facebook and Twitter or whatever are like, F off, we're just -- we're not going to do it. So that seems to lead evidence that this isn't really coercion. This is a conversation between government officials and Facebook, where the government is encouraging them to do something. Encouragement is not coercion, and I think that's really the lesson of the case here.

Dave Bitner: Help me understand. So for example, like in a libel case, right? The truth is a defense against a libel case, right? To what degree does the truth play into any of the arguments that are being made here?

Ben Yelin: I don't think it plays a big role in the truth. I mean, I think what the conservative justices were saying is -- and what the attorney for the plaintiffs was saying is -- Well, the solution to any inhibitions on speech is more speech. Like, let the government get their message out, let, you know, the random QAnon-loving users on Twitter put their message out, and the public will be able to -- to judge. I think what the rest of the justices were saying, and certainly the attorney for the government was, Yes, we have this bully pulpit and we do have access to information that the public doesn't have. Even if it doesn't turn out to always be truthful, I think we serve a valuable role in bringing an element of knowledge to -- to the conversation.

Dave Bitner: Right.

Ben Yelin: And restricting us from being able to share that knowledge and being able to communicate with these companies and say, You know, based on the research that we've done at the CDC or based on, you know, other specialized areas of knowledge that we have, we think that this is going to be dangerous. I mean, that's one of the roles that the government has. So, you know, the fact that all of their messaging on vaccines didn't turn out to be 100% accurate, I don't think that plays a big role in this case. I think it's more about the government's unique ability to have access to critical information in a way that the public does not.

Dave Bitner: And to be clear here, I mean, what this case is about is whether the government is allowed any communication at all, right?

Ben Yelin: Right. I mean, the original injunction barred them from any communication. So Vivek Murthy, who was the Surgeon General, was prohibited from speaking, communicating publicly or I guess you could communicate publicly, but was prohibited from communicating directly to these companies. And that's just a major inhibition on the government's role and responsibility to protect public safety. If you really believed that vaccine misinformation was going to cause unnecessary injury and death, or illness and death, which I do think the government legitimately believes that, then you are removing one of the government's key capabilities which is to communicate that to these very, very powerful platforms. And that's why I loved Justice Jackson's hypothetical, because of course if there was this phenomenon on all the social media networks of kids jumping out of buildings, like, we would expect the government to step in and say knock it off, like, you have to do something about this. That seems so central to just what the government does and what its responsibility is.

Dave Bitner: A lot has been made about this because it is so much coming from the right, and I -- is it fair to say the far right?

Ben Yelin: Sure, yeah, I mean, we don't have to throw labels on it, but yes, all of the entities involved here are quite conservative.

Dave Bitner: Yeah, and their concern -- I guess the accusation of censorship, which you and I have talked about not really -- not being -- or demonstrably untrue, I guess is the way that we've framed it, in terms of, you know, being able to get their message out. I guess where I'm trying to frame this is, is there a -- is there a parallel argument from the left that this would apply to that we can imagine?

Ben Yelin: I think you can imagine a scenario potentially where, like, there's some element of left-wing speech where the government is saying, You have to take this down. So the best example I can think of, and this was brought up in the case, is let's say there are pro-Palestinian activists who are saying things that the government believes to be anti-Semitic, whatever it is. Maybe it's --

Dave Bitner: Right.

Ben Yelin: -- they're allowing "From the river to the sea" chants to be posted on TikTok or whatever.

Dave Bitner: Okay.

Ben Yelin: I think it's well within the government's responsibility and well within their power to go to these companies and say, You need to do more to shut down anti-Semitism on these platforms.

Dave Bitner: Yeah.

Ben Yelin: Now, the platforms could come back and say, No, we're not going to do it. We believe in free speech, so leave us alone. The implication from the attorney for the plaintiffs was, Well, you know, the government secretly is trying to coerce them because the government has a lot of tools at its disposal, some of those tools being removing Section 230 protection or imposing penalties, that sort of thing. But without any evidence whatsoever that there's a connection between the recommendation or the request to take down the information and those potential government actions, there's just no -- in the words of, I guess I don't think Bill Clinton said this but there's no there there.

Dave Bitner: Right.

Ben Yelin: If that makes sense.

Dave Bitner: Right.

Ben Yelin: There's just no real nexus between some executive-level official saying swear words to Facebook in an email and, two years later, Facebook taking down a post by some prominent anti-vax account.

Dave Bitner: Right.

Ben Yelin: In fact, as many people were saying during these oral arguments, Facebook and Twitter and every other social media company have their own reasons why they might want to take down that content that have nothing to do with these conversations with government officials. Like, I want to take smut off our platform because I think it's going to cost us users. That's a perfectly reasonable alternative reason that these social media companies would want to remove content --

Dave Bitner: Yeah.

Ben Yelin: -- that's completely separate from them having a conversation with x figure in the executive branch. And it's so hard to trace the action, the action of censorship, to that government communication that, yeah, I just -- I really think the plaintiff's argument is going to fail pretty badly.

Dave Bitner: So what kind of timeline are we on to get a ruling?

Ben Yelin: This is another one that I think is going to be the end of June. So this is late in the Supreme Court session in terms of oral arguments. I think they have another month or so of oral arguments before they start to put together their end-of-the-term decisions. So just like the other case that we talked about a couple of weeks ago, I think this is one we'll see come out at the end of June, and I'm sure we'll talk about it at that point.

Dave Bitner: And suppose they rule the way that you suppose that they will, is that it?

Ben Yelin: I think so. There are a couple of things that could happen. One thing that I think is very likely is the narrowest grounds here will be the fact that these plaintiffs haven't established standing. So that would not require the justices to opine on the merits. If that were the case, then you could see future cases where maybe the plaintiffs find a closer connection between government communications and alleged censorship.

Dave Bitner: Right.

Ben Yelin: So maybe at some point in the future a government official actually does say, Take this down or, you know, we're going to audit -- we're going to have the IRS audit your taxes.

Dave Bitner: Right.

Ben Yelin: In that case, we won't have a definitive ruling on the merits of how far is too far in terms of those communications.

Dave Bitner: Yeah.

Ben Yelin: But I do think in this particular case, the -- establishing that it was the government communication that caused the alleged censorship is so attenuated that they might just throw out the case on those standing grounds. Which still means the plaintiffs lose, but it does potentially preserve a future argument and a date -- in a case with just different facts at hand.

Dave Bitner: Well, but you also have to imagine that this case getting as far as it has, anybody in government who's going to be communicating with anyone in this sort of way is going to be very careful about how they frame things.

Ben Yelin: Yeah, you have to talk more like a mob boss, right? So you have to be very implicit and always assume somebody is wiretapping you.

Dave Bitner: Right. Right.

Ben Yelin: Just say, You know, I wouldn't do it. I wouldn't keep that information up there. I'd hate to see what would happen to your --

Dave Bitner: Nice social media platform you got there.

Ben Yelin: Yeah, it would be a shame if something happened to it. I think we'll see more of those. Next time we go through a discovery process, there might be, you know, less explicit language and more implicit, You know, I think it would be a bad idea to keep that -- to keep that up there.

Dave Bitner: All right, well, that's interesting. We will have a link to that in the show notes, and of course we will keep an eye on that as it plays out. My story this week comes from the folks over at The Record and their coverage of a potential compromise on Section 702. Ben, real quick, 702 is?

Ben Yelin: Section 702 of the FISA Amendments Act of 2008 is the program that allows for the government to warrantlessly collect online communications of non-US persons reasonably believed to be outside of the United States directly from the communications companies. And then of course the big controversy about it is what's called incidental collection. So when US persons are communicating with overseas targets, US persons communications get wrapped up in this. They go into a giant searchable database and that's where the constitutional problems arise.

Dave Bitner: Yeah. So what we have here is that Senators Dick Durbin, Democrat from Illinois, and Mike Lee, Republican from Utah, have introduced bipartisan legislation that they hope is a compromise when it comes to Section 702. As you and I have talked about, 702 has been really mired in deadlock with Congress over the past several months.

Ben Yelin: Yeah, so it was set to expire in December. They reauthorized it for five years at the very beginning of 2018. So they reauthorized it through the end of the calendar year 2023. There are basically two viewpoints here, and it doesn't fall neatly along partisan lines which is interesting. So kind of the pro-security side, which one might derisively refer to as kind of the establishment position.

Dave Bitner: Okay.

Ben Yelin: The one the intelligence community supports is reauthorize the program without any requirement that the government obtain a warrant from a FISA court to search in the Section 702 database. The other side, represented by civil libertarians on both sides of the political spectrum, far right and far left generally, want there to be a requirement for a warrant to search these communications. So, there was a major impasse. We've had bills introduced in congressional committees that go one way or another on this question, and they haven't been able to come to an agreement to get the bill either to the House or the Senate floor. So, they did what Congress does best, they punted the issue till April of this year.

Dave Bitner: Right.

Ben Yelin: So they have a month to resolve it, and then there's this other interesting element here, that the way Section 702 works is that it has to be authorized annually. So the government puts together an application to the FISA court saying here's how this program works, here's what we're doing to ensure the protection of civil liberties, we are asking for one year of authorization. That is due around now, I think end of March beginning of April, and that authorization lasts for a whole year. So, there's some thinking that even if this does not get extended, the statutory authority doesn't get extended in April, they'll still be able to do the collection for another year, which might buy Congress more time to come up with a solution.

Dave Bitner: Well, so this bill tries to stand on that nice edge by allowing intelligence agencies to search the 702 database for Americans' communications, but it requires a warrant for accessing the content with -- with a few exceptions.

Ben Yelin: Yeah. I like this, because we're very clear in the law -- I wouldn't say very clear, but we have a good idea in this sort of what counts as content and what counts as noncontent.

Dave Bitner: Okay.

Ben Yelin: So content is, you know, what's on the inside of the envelope, and apply that to the digital field. That's the body of an email, or the actual text in a social media post, or somebody recorded your video chat over, you know, Google or whatever.

Dave Bitner: Yeah.

Ben Yelin: That's the content. And then there's the noncontent, or metadata. So that's when the email was sent, when it was received, the address that sent the email, the address that received it, that sort of thing.

Dave Bitner: Right.

Ben Yelin: Now, civil libertarians and people who work from the Electronic Frontier Foundation have been making an argument for years that noncontent is actually kind of content. Because when you put it all together, you can really get a good idea of somebody's private life, even if you never see the content of their communication. So --

Dave Bitner: Right.

Ben Yelin: -- the fact that I know you called a suspected terrorist and had a 30-minute conversation, that tells me a lot about you, even if I never heard the content of that conversation.

Dave Bitner: Right.

Ben Yelin: So, you know, I think having this content, noncontent distinction works as a compromise. I think it might displease some absolutists who believe that even that type of collection would be a violation of civil liberties.

Dave Bitner: It seems to me like this would slow things down a little bit, which you can make an argument in either direction for or against, but also get another set of eyes on it. So, you know, presumably your intelligence person is going through and looking through the metadata and says, Aha, look at this. You know, Ben Yelin had a 30-minute conversation with Vladimir Putin last week. Well, that's interesting.

Ben Yelin: I'm not Tucker Carlson.

Dave Bitner: Yes, that's for sure. So, then you have that information to go make your case in front of a judge.

Ben Yelin: Right, it would be in front of a FISA court judge, and so they have experience in dealing with ex parte communications and secretive applications and all that stuff, which is good. Yeah, I do think that's an important layer of protection here. As you said, there are some exceptions related to cyber criminals, or I think if somebody is the victim of, like, say a cyberattack or something like that, then you could go after the content of those communications.

Dave Bitner: Yeah.

Ben Yelin: Because we have had instances where members of Congress have been victims, so they're going to want to write it into the law that you don't have to go through a cumbersome warrant process in those circumstances. But yeah, I think that is a good added level of protection. I think it could end up being a really sensible compromise that allows Section 702 to be extended. I mean, I know we mention this every time, but the intelligence community will come in front of Congress as frequently as it has to, and they will assure Congress that this is the crown jewel of our intelligence apparatus.

Dave Bitner: Yeah.

Ben Yelin: Do not mess with Section 702. This is stopping terrorist attacks. This is stopping cyberattacks.

Dave Bitner: I was -- I was interviewing someone, oh, about a week ago, who was, you know, a high-level cybersecurity person at the FBI. And they, well, what I will say is very craftily dropped into the conversation, made sure that the conversation included their reliance on Section 702, how important it was to them.

Ben Yelin: Yeah, I mean, I think it makes the contours of this debate, it just raises the stakes a little bit. There have been other programs where -- and actually you'll hear this in my interview with Byron Tau later in this episode, but there have been other surveillance programs where there was a big fight about whether to reauthorize it and eventually it just expired because it just wasn't really worth it for the intelligence community to fight on it. That was called detail records. They're basically like, eh, you know, it would be nice for us to have that authority. It's not the end of the world if that authority expires. That is not the case with 702.

Dave Bitner: Yeah.

Ben Yelin: They will fight tooth and nail for it. Every administration, Republican or Democrat, has done the same thing. They've gone to Congress and said, You need to reauthorize Section 702. So, I think that context is very important here.

Dave Bitner: What do you suppose the odds are that a compromise like this makes it through?

Ben Yelin: It's really hard to handicap, because I think the absolutists on either side of this equation have the numbers to stop this. And you might get a coalition of super civil libertarian people saying, you know, I want -- why give me half a loaf when I can have the whole loaf and require warrants for content and noncontent collection. And then you might have national security hawks saying, This is overly cumbersome, this is going to hamstring our intelligence community. So they probably have enough -- they probably have sufficient numbers in the House and the Senate if they wanted to kill it -- to kill it. And then the other thing is I think the fact that you're going to have this annual one-year reauthorization of 702 buys them a little more time, which might be good, but it might be bad in the sense that there's going to be less desperation to come up with a solution.

Dave Bitner: Right.

Ben Yelin: Because you are going to have Section 702 operational at least until April of 2025.

Dave Bitner: Yeah. All right. Well, interesting stuff. And of course we would love to hear from you. If there's something you would like us to discuss on the show, you can email us. It's caveat at n2k.com. [ Music ] Ben, you have the interviewing duties this week, and you had a really interesting conversation here with Byron Tau. He is author of the book, "MEANS OF CONTROL: How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State". Here's Ben's conversation with Byron Tau.

Byron Tau: So, essentially at some point in 2018, I got a fairly interesting tip about the Pentagon purchasing large amounts of movement data from phones and -- at the time it was just phones, but I would later come to realize that a lot of this data also comes off of cars. And so it set me on a four or five-year reporting journey to try to get to the bottom of how digital advertising in this app economy had created a very large data collection enterprise, and how governments were taking advantage of this. And, you know, I think -- I was motivated as a journalist because I think a lot of this was hidden. It wasn't exactly secret or classified, but it wasn't something either government agencies, advertisers, data brokers, or contractors really wanted to talk about. And I do think in a democracy, it's important for people as both voters and consumers to understand how their technology works and what their government is doing with it.

Ben Yelin: One of the things I found interesting about the book is beyond the information you convey, you talk a lot about the process. And I was wondering if you could get into that. What kind of resistance you encountered from these government agencies, from private companies, and your ways of sort of working through that resistance?

Byron Tau: Yeah, so a lot of these programs are run by contractors who are fairly obscure. A lot of them are in the DC area, but not all of them. A lot of them, you know, put NDAs in place or consider their data sources and their contracts with governments trade secrets. And so it is a very difficult world to penetrate. On the government side, you know, you have government entities that are concerned that if adversaries knew what kind of data they were acquiring, these people would change their behavior, and so they're also equally reluctant to talk about it. So, it wasn't anything most reporters don't do. I mean, it was a lot of cold emailing, cold calling, a lot of trawling LinkedIn, but, you know, over time, if you spend enough time on something, if you spend enough effort on it, you know, often you can get something of a picture. And so I eventually was able to find people inside government and out that were willing to cooperate. And in addition, you know, there are a lot of people in civil society that research surveillance or, you know, there are groups like the ACLU and the EFF, which file lots of FOIA requests and were able to help me with documents. And so, you know, when it came down to it, I was able to hopefully piece together at least part of this world, which I think, as I said, both the contractors, the data brokers, and the government agencies were tremendously eager to talk about.

Ben Yelin: Let's get into this world a little bit that you're describing. I think a lot of the origin story of this world started after 9/11, and that's something that you touch on in the book. And I'm wondering if you can kind of start there and then just from a big picture sense, how has it changed over the past 20 years?

Byron Tau: Sure. So I think 9/11 really represented a change for a lot of intelligence agencies because prior to that, during the Cold War their adversary was the nation state. And after 9/11, all of a sudden they had to dive down to the level of individuals and try to separate out people who were behaving suspiciously from just ordinary people all over the world. And so government agencies became very interested in corporate data around that time. There's a famous FBI chronology of the 9/11 attacks, which basically tells the story through transactions and other corporate records showing, you know, when people rented hotel rooms or cars or mailboxes or gym memberships, and how that all led up to the 9/11 attacks. So there was this tremendous interest in corporate data after 9/11 that culminated in, you know, experimental programs like the Total Information Awareness Program, which, you know, caused this civil liberties outcry on Capitol Hill in 2003 and was eventually defunded. But that kind of research never really stopped. Governments never really ceased being interested in large-scale data sets that corporations had. And so, you know, I trace the evolution of interest in this data from the Total Information Awareness Program through interest in acquiring large amounts of social media data as, you know, the threat from threats like ISIS and other terrorist groups as they moved on to the social web. Governments became very interested in acquiring that kind of data, all the way through when mobile phones and advertising data that showcased the location of mobile devices became available from brokers. Governments also took advantage of that. And finally I describe the modern world of kind of connected IoT devices, and Bluetooth headphones, and car tires, and toll transponders. All that creates this web of wireless data and there are these strange data brokers, some of whom are linked to the government, that are out there vacuuming up that kind of data and government agencies that are experimenting with it and trying to integrate it into their intelligence products. So, the book is really a 20, 25-year look at this government appetite for corporate data and data brokers that sprung up to cater to that appetite.

Ben Yelin: And I think just so our listeners are clear, like, this is perfectly legal. Government agencies can purchase this data and right now there's nothing stopping them. Is that your general understanding?

Byron Tau: That's right. When the government engages in an above-the-board commercial transaction for data that is available in the private market, by and large lawyers in the United States have blessed these kinds of programs. Now, I do think, you know, this is a bit of the frontiers of law, and I don't think courts are fully done grappling with it. But as of right now, as of our current understanding of the Fourth Amendment and related privacy laws, that if these data sets are available out there in the marketplace and a vendor is willing to sell them and they by and large been collected legally or at least quasi legally, then there's really no barrier to a government agency purchasing them.

Ben Yelin: And I know there's been some legislation, there's like this Stop Purchasing Our Data Act or something along those lines that's popped up in the House and Senate. But what kind of strikes me is that we've come from this point that you talk about in the aftermath of TIA and Congress defunding that program, to the contemporary era where we haven't even gotten that close to passing a federal data privacy law. What do you think accounts for that and why is there this sort of inertia on this subject in Congress?

Byron Tau: I think there's two reasons. One is that in the immediate aftermath of 9/11, there was definitely an impetus to try to do as much as possible to protect the United States. And that may have involved, you know, some trade-offs between privacy and civil liberties. The second thing, I think, is that Congress was very reluctant to legislate in the area of privacy because the Internet was seen as this new and wide-open information space and that, you know, government didn't want to get in the way of innovation or stifle young companies before they could really fully understand the effects of the network and of the internet on society. And so because of both of those things, I think Congress has moved very, very slowly on online and digital privacy to the point where it's essentially -- it's essentially something of a wild west still. You know, there are obviously some rules and laws. The FTC has emerged as a rather aggressive data privacy enforcer. There are lots of laws about children's data. But by and large, when it comes to adults' data on the internet and that is collected digitally, there really just aren't that many rules or laws on the books that would restrain much of this data collection.

Ben Yelin: So, trying to get into the mind of the average person who's not familiar with some of the legal nitty gritty here. If I'm somebody who enjoys the fruits of applications, and I like, you know, pressing the agree on the EULA so that Jimmy Johns knows my location and can find me the nearest sandwich shop, I guess my question is, What's in it for that person? Why should that person care about what you've documented in this book?

Byron Tau: You know, it's a good question. I guess the thing I would say is that this is a social, society-wide conversation that needs to be had. It's true that the average, ordinary person who's clicking, you know, I accept, and yes, you can have my location to these apps probably doesn't have a tremendous amount to worry about from their government. But, you know, it certainly is changing the social dynamics and the power balance in society when there's so much more information and a lot of it is in the hands of the state. You know, I think in the United States we do traditionally limit the power of government by limiting the information government has. We, you know, put a warrant requirement on getting a lot of information about us. You know, police can't just do bulk surveillance on the whole population. And I think we do that because we as a society are skeptical of government and we want to limit the powers and the intrusion of government into the affairs of ordinary people. And, you know, certainly this data has been used by local police departments to solve crimes, to track people around without their knowledge. It has even been used by journalists or private investigators. I tell the story in the book about a Catholic news agency that essentially outs a Catholic priest for using the app Grindr, and that data was purchased commercially. So, this can actually have real consequences to people who don't necessarily know the kinds of data they're broadcasting to the world, and what parties may access it for what reasons.

Ben Yelin: And with that in mind, I know you devoted the last chapter of your book to kind of the micro practical steps that people can take to protect their data, if they're convinced at the scope of this problem. So I'm wondering if you can get into that a little bit, and just kind of the steps that people can take to secure their data.

Byron Tau: Sure, so I generally advocate for trying to control as much of your data as possible. If you're going to put it in the cloud, try to put it in an encrypted environment. And over the years, I think even the big tech companies, especially I'd note Apple, has made it particularly easy to do that. So you can turn on advanced data protection in your iCloud account, and then you essentially have taken back a lot of control of your data. There's also obviously privacy-preserving communications channels like Signal, like Tutanota, like ProtonMail and many others, WhatsApp and Apple's iMessage, that will offer you pretty good privacy for your communications. Obviously, it's not perfect, you still can be hacked, but it is taking back a measure of control over your data. In terms of sort of combating the surveillance capitalism business model, I would encourage people to be very careful of what apps they put on their phones, what apps they grant access to their address book, to their photo roll, to their location, because, you know, the end user license agreement might give those companies a lot of leeway to do stuff with that data. And, you know, finally, I would just be willing to pay more, right? Because this entire world has sprung up because app developers can't rely on the public to pay a few dollars for an app or a few dollars a month for a consumer service. And, you know, coding an app is not free. It takes talented developers, it takes renting server space, it takes hiring a lawyer to draw up the terms of service or a privacy policy. And so when app developers can't rely on money from the public for their work, that's kind of when they turn towards monetizing their users. And so I think, you know, if people are interested in more privacy or in changing the balance of power between the tech companies and them, they really should be a little bit more willing to pay a few dollars a month in order to get some sort of a service rather than having the app monetize them or take advantage of their data.

Ben Yelin: I guess my skeptical view, and I'm wondering if you agree with this, is once people are presented with this trade-off, they have something that's very real and tangible to them, which is the benefit of a free service and the benefit of things like location tracking, versus, I think the things you talk about in your book, which are compelling to me, but they're sort of abstract. I mean, how do you go about making that case, given that trade-off? What would you say to a person? I know this is kind of an extension of the question I asked, but I'm just trying to get at that tension a little bit.

Byron Tau: Yeah, I mean, I think it's a reasonable question. You know, I guess I'm not trying to convince anyone of anything, really. I'm just trying to describe the world as it exists, and, you know, hopefully give consumers a lot more information about really what is happening at the highest levels, at the social, at the society-wide level with their data. I do think, you know, there is an increasing awareness about data privacy issues. I think the Dobbs decision, which overturned Roe v. Wade, was certainly a moment when a lot of people, potentially women who live in states where abortion was suddenly illegal and who could conceive of potentially a possibility of having to travel to another state, I think for them, that was maybe the first time that data privacy and data security came up. Or, you know, there are other instances, you know, as I said, there's a number of anecdotes about Grindr in the book. And there are people, there are LGBTQ Americans who are not necessarily out with their coworkers or their family, and that might potentially want to know the risks of some of these apps. Or, you know, I think we've increasingly seen transnational repression from countries like China or Russia. You know, if you have family in those countries or you're a dissident who's escaped that situation, you may genuinely be concerned and want to take precautions. And so, you know, I do think it's my job as a journalist to try to give policy makers, civil society, and ultimately the reading public as much information as I can to help them make choices about who they vote for, what technologies they buy, and what the policies and rules of our society should be.

Ben Yelin: Well, you did a great job doing it. I learned so much from the book. I was wondering if I could, while I have you, get answers to a couple of questions on contemporary issues. The first is that I know Congress is in this debate about whether and how to reauthorize Section 702 of the Foreign Intelligence Surveillance Amendments Act. I'm wondering if you have any thoughts or predictions on how that's going to go, what the dividing lines are, and how you see that program progressing over the next several years.

Byron Tau: Yeah, it's a great question. I mean, I do think there is overwhelming bipartisan support for that program in some way, shape, or form. The big debate is about, you know, whether government agencies should get a warrant to search through the data that they've already collected for information about Americans. And I do see that being a major sticking point. Both sides seem to be pretty dug in. A lot of the, you know, kind of the debate around what actually the government is doing with these queries and how often it queries this database and how many Americans are in it. A lot of that is really shrouded in mystery, so it's hard for journalists, it's hard for civil society, and it's hard for the public to really even understand what the heck the government is talking about and how often this situation comes about. But I do think that that is -- that is a major debate and I could, you know, I think it will get renewed, but who knows, right? Like, we have seen intelligence authorities lapse in -- in -- when there are impasses over what to do, and I'm thinking primarily of the 2 -- Section 215 business records provision.

Ben Yelin: Right, we're going on four years since the USA Freedom Act was supposed to be reauthorized, right as the pandemic was starting and then just never happened.

Byron Tau: Right, and I don't think anyone intended for that to really lapse, but it did, and now it's gone. And so, you know, you could potentially see Congress get mired in this debate and not see a resolution. And I do think potentially the authority could lapse for a time, or maybe for a long time.

Ben Yelin: And then the last thing, I know this might be slightly outside the scope of your book, but I do think it's related, is just this week the House of Representatives overwhelmingly passed a bill that would require ByteDance to -- or I guess it would require TikTok to be purchased from US investors lest it lose its spot on our application stores. I'm wondering if you have any thoughts on that and your perspective on that piece of legislation?

Byron Tau: Yeah, you know, I've done a lot of reporting around TikTok and, you know, in doing this book, I did get a fair amount of access to intelligence community officials, mostly formers, but I kept asking, you know, what's the real example of TikTok being used either for propaganda or for data privacy sort of violations of trust from its users, and I never really got a great answer. So, I do think a lot of the problems with TikTok are still hypothetical. However, I do understand the concern from national security officials that, you know, potentially if there's a shooting war in the South China Sea and all of a sudden a tweak gets made to the algorithm and, you know, tens if not hundreds of millions of Americans start seeing sort of pro-Beijing content, that is a real concern. And so I do think Congress is in a difficult spot. It's obviously a very popular app, especially among the younger demographic. It doesn't set the greatest precedent for sort of freedom and open information in the world if you have, you know, the US banning foreign apps. So it does put Congress and national security officials in a difficult spot. I think a lot of lawmakers are really hoping that they can use this bill as leverage to force ByteDance to sell it and that the app stays with an American or Western owner. But who knows? Again, there are all these unintended consequences when you legislate like this, and it's entirely possible that the app disappears from app stores amid disagreements between Beijing and ByteDance about who to sell it to and under what circumstances.

Ben Yelin: Well, I suppose we shall see how that develops. Byron Tau, thank you so much for joining us. The book is out now, "MEANS OF CONTROL: How the Hidden Alliance of Tech and Government is Creating a New American Surveillance State". I've been a longtime follower of yours and I'm really glad I got to sit down and talk with you today.

Byron Tau: Thanks so much for having me. [ Music ]

Dave Bitner: Interesting conversation, Ben. I think the thing that really struck me is this notion of why should we all care, right? I think there's a sense of resignation, you know, when it comes to these endless EULAs, and, you know, it's that, Oh, well, I've got nothing to hide and They've already got everything, so.

Ben Yelin: And it all feels so abstract. It's like, Oh, it's great, some Wall Street Journal guy is talking about the dangers of a surveillance state, but how does that really affect me?

Dave Bitner: Right.

Ben Yelin: I think his answers were very persuasive in that regard in this interview, especially when he was talking about things like freedom of choice and other scenarios where our fundamental rights are at stake if the government is helping to foster this mass surveillance apparatus.

Dave Bitner: Yeah. No, it's really fascinating. Again, our thanks to Byron Tau for joining us. We do appreciate him taking the time The book is "MEANS OF CONTROL: How the Hidden Alliance of Tech and Government is Creating a New American Surveillance State". Do check that out. [ Music ] That is our show. We want to thank all of you for listening. A quick reminder that N2K strategic workforce intelligence optimizes the value of your biggest investment - your people. We make you smarter about your team, while making your team smarter. Learn more at N2K. com. Our executive producer is Jennifer Eiben. This show is mixed by Tre Hester. Our executive editor is Peter Kilpe. I'm Dave Bittner.

Ben Yelin: And I'm Ben Yelin.

Dave Bitner: Thanks for listening. [ Music ]