Caveat 6.24.20
Ep 34 | 6.24.20
Code is law.
Transcript

Maureen Webb: I think a central premise that hackers have embraced is that code is law. Code, more than law, will determine the kinds of societies that we live in and whether they end up resembling democracies at all.

Dave Bittner: Hello, everyone, and welcome to "Caveat," the CyberWire's 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. Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: On this week's show, I've got the story of how the FBI used open-source intelligence to track down an alleged arsonist. Ben describes a facial recognition test that took place at the Rose Bowl and, later in the show, my conversation with Maureen Webb on her forthcoming book, "Coding Democracy: How Hackers are Disrupting Power, Surveillance and Authoritarianism." 

Dave Bittner: 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. 

Dave Bittner: All right, Ben. Before we dig into our stories this week, as is so often the case, moments after you and I put a button on our last show, there was some breaking news (laughter) that updated one of the stories we had. We were talking last time about IBM putting some of their facial recognition technology on hold. What has happened since? 

Ben Yelin: So one thing we mentioned on that episode is that IBM was ahead of the curve. They were the first company to basically put a moratorium on facial recognition technology, at least, you know, the selling of that technology to law enforcement. Turns out that they were just the beginning of a trend. 

Ben Yelin: So after we recorded our episode, Amazon and Microsoft announced similar temporary bans on the use of facial recognition technology. That means that the market to sell facial recognition technology to law enforcement agencies across the country is much smaller than it was a week ago. I think we mentioned on the episode upstart companies like Clearview AI might get a larger market share. But one of the things we surmise in the episode when IBM took this action is that even though Amazon and Microsoft might have been able to get a larger market share, they might cave into the social pressure, given this political moment that we're in. 

Dave Bittner: Right. 

Ben Yelin: And they might want to do the thing that they believe is socially responsible, and that's what they did. So we now have, you know, three of the largest companies in the world, frankly, and, you know, probably a extremely large proportion of the market share for facial recognition technology announcing a one-year moratorium until, in the words of our president, we can figure out what the hell is going on. 

Dave Bittner: (Laughter) He's always so eloquent. So does this also shine a light on the issue that would catch the attention of policymakers to say, hey, if these big companies are putting a pause on this, perhaps this needs our attention? 

Ben Yelin: Absolutely. You know, IBM's original notification about this policy change was to members of Congress, and I think that that's not accidental. I think it's a signal from the tech companies; look - if we're willing to sacrifice our bottom line, potentially, because we realize that this technology is associated with, you know, systemic bias and other negative externalities, then it is incumbent upon Congress or state legislatures to make policy changes. So I think it's a big wakeup call. 

Ben Yelin: You know, oftentimes, we'll see the private sector lead in areas of technology policy. They're more well-situated. They have subject matter expertise that most members of Congress do not have. And, you know, they have to be a little quicker to respond to the dynamics of the market. And so I think, you know, this really might cause Congress to step back, consider, well, if we have Amazon, IBM and Microsoft ceasing use of this technology for a full year, it might be worth it from our perspective to develop some standards and policies. 

Dave Bittner: Right. 

Ben Yelin: So I think that's - that could definitely be something we see going forward. 

Dave Bittner: Yeah. Yeah - certainly interesting developments. Well, let's move on to our stories for this week. Why don't you start things off for us, Ben? 

Ben Yelin: Sure. So back a long time ago, in a month called January - seems like probably ages ago... 

Dave Bittner: (Laughter). 

Ben Yelin: ...We had things that were called large sporting events that took place at large stadiums. It was only several months ago. One of those events was the Rose Bowl. A game between the Oregon Ducks and the Wisconsin Badgers took place in Pasadena, Calif., as it always does, on New Year's Day. What was different about this year's Rose Bowl is that in the FanFest section, a company called VSBLTY - I think that's how it's pronounced. It's the word visibility without any of the vowels. 

Dave Bittner: (Laughter) Right. 

Ben Yelin: They had put up surveillance cameras to test facial recognition software to be used for advertising purposes. So the cameras were put on all of the attendees at this FanFest. It was approximately 30,000 points of data that they were able to gather. The cameras would be put atop large digital advertisements. So people would look at the advertisements. The cameras are directly above those advertisements, and the cameras end up getting a really good look at those individuals. They can take pictures. You know, they have the full face in front of them. 

Ben Yelin: And they are able to, you know, use that image for facial recognition purposes. They want to figure out who's looking at these advertisements. What is the person's gender, age? You know, they're also going to check the faces that they observe against criminal databases. Is there anybody on a criminal watchlist who's come to this event? Is this a person who has an outstanding warrant available? So this is pretty extraordinary. I will note - this hasn't been necessarily confirmed, but attendees who were interviewed as part of this article said they did not see any warning in the FanFest area saying, you are being recorded by VSBLTY. You know, your face may be captured for facial recognition purposes... 

Dave Bittner: Right. 

Ben Yelin: ...Et cetera, et cetera. 

Dave Bittner: Help me understand here. I mean, I can see - I don't - no matter what you think about it, I can understand and I can see the capturing of faces for advertising purposes. In other words, if this ad has your attention, then you can presume that this might be something that this person is interested in. So let's grab a shot of their face, file it away. And we know that this person has an interest in whatever it was they were watching the ad for. 

Ben Yelin: Right. It's free market research. 

Dave Bittner: Right, right. But I guess I'm having trouble following the extension of that to, hey; while we're at it, let's send this information to law enforcement. 

Ben Yelin: It's a great question. I mean, the reason it's accessible to law enforcement is that nobody in that crowd has a reasonable expectation of privacy. So if law enforcement were to obtain this data, they would not need a warrant to search it against their criminal databases. Simply by going out in such a public place and revealing yourself at a Rose Bowl FanFest with 30,000 other people, you've lost your expectation of privacy. 

Ben Yelin: Now, that, to me, is sort of a bit of a legal fallacy in this situation. I might have a general idea that there are probably, you know, security cameras set up to make sure that if there's an incident at this FanFest, they're able to capture who did it and what happened. I'm probably not anticipating that there's a company without vowels in its name taking hundreds of pictures and capturing my face, using it to check against criminal databases. I mean, I just think that's not something that's in the mind of a reasonable person who attends this FanFest. And so without putting out a warning, you know, I frankly think it's a little bit unfair to the attendees in terms of their right to privacy. And I think this is sort of an extension of the surveillance state that I think goes beyond the pale. 

Dave Bittner: Yeah. It's interesting to me because, you know, back in my broadcast days, I remember when we would - if we would be set up, you know, shooting a commercial or something like that at a store or a shop or even at a sporting event - something like that, we would put up signage that said, attention. We're making a commercial here today. And, you know, by passing through this area, you acknowledge that you may be captured, and you may be in the movie - you know, that sort of thing. 

Ben Yelin: Right. 

Dave Bittner: And if you don't want to be, either avoid this area or let someone know or something like that. And while I suppose we technically didn't have to do that in a public place, as you say - there's no expectation of privacy - just felt like the right thing to do, the sporting thing to do, if you will. 

Ben Yelin: Absolutely. Good sportsmanship - tell your attendees that they're going to be spied on. 

Dave Bittner: (Laughter). 

Ben Yelin: Yeah. Now, again, it's not confirmed that there weren't, you know, no warnings here. 

Dave Bittner: Right. 

Ben Yelin: But, you know, we talked about transparency as it relates to these subjects repeatedly. The article - and the person who wrote this article - it's from the publication OneZero - reached out to both the Rose Bowl and the company and asked about the use of the surveillance, and both of them declined comment. So, you know, they're being relatively cagey about it. 

Ben Yelin: The company doesn't have a large public profile. According to LinkedIn data, it's only a 50-person company. But they have had contracts with some pretty large entities, Mexico City being one of them, and they've used that for criminal surveillance circumstances. So, you know, it's an organization that's kind of below the radar but relatively well-established. And, you know, they're expected to make or were expected to make up to $20 million in profit during this calendar year. So it's a relatively prominent organization. So I think the lack of a sign, the lack of transparency, means that attendees don't have any reasonable option to avoid the FanFest area. 

Ben Yelin: I think the equitable thing to do would have been, you know - there has to be some sort of a gating setup for the FanFest. In front of that gating, say, there are advertisements here that are making use of facial recognition technology. If you do not wish to have your face exposed in that manner, then go get a hot dog and go to your seat. Don't come in. And, you know, that way, at least a person would have fair warning. And because supposedly that was not done in this case, even though the attendees don't really have any legal recourse if their face is matched up against a criminal database and they're arrested, you know, I think they do have an ethical case to make against both the Rose Bowl and this company. So it was definitely something that was sort of very eye-opening. And a lot of digital surveillance kind of reads like it's from "1984." 

Dave Bittner: Yeah. 

Ben Yelin: But this really illustrates that point acutely. 

Dave Bittner: So given that we have this reality that you do not have an expectation of privacy in public places and that is well-established, what would a potential policy solution to something like this look like? 

Ben Yelin: Requiring disclosure would be the first step. That's sort of the easy way to do it - you know, something that said that at least in federal cases, if you're the federal government, a criminal defendant could seek to suppress evidence if they weren't given fair warning about the use of this technology. In the long term, the broader change is to revise this doctrine that when you go out in public, whatever is captured on any form of surveillance - whether it's closed-circuit television, overhead surveillance - that that is fair game for law enforcement use. 

Ben Yelin: As we've talked about, made sense as a doctrine in the past because, you know, if the police catch you doing drugs, you don't really have an expectation of privacy if you're in the middle of the street. The police have limited resources. They are not able to put a cop on every single block. If we have enough companies doing what this VSBLTY company is doing, you know - and they put cameras literally everywhere - your face is going to be recognized in public, really no matter where you go. And so you don't really - unless you are a literal shut-in and decide to stay in your house 24/7 - which I guess we've all been doing for three months anyway, but that's besides the point. 

Dave Bittner: (Laughter) And when we do go out, we wear masks. 

Ben Yelin: Yeah. Exactly. Well, hey, maybe we've killed two birds with one stone there. 

Dave Bittner: Right. Right. 

Ben Yelin: But yeah, I mean, unless, you know, you're going to live in your house, no matter what happens, when you go outside, you are being watched, and whatever happens can be used against you. And, you know, I just think that it's time for multiple branches of government, including the judiciary, to reconsider that doctrinal test. And I think the more we see stories like this, where it's on such a wide scale - I mean, talking about 30,000 people at a FanFest prior to the Rose Bowl, that's a lot of people, you know. It's probably more than pass your average street or store camera every single day in some of the biggest cities in our country. So we're talking about something on a large scale. 

Dave Bittner: Yeah. 

Ben Yelin: And I think it's certainly a cause for concern. 

Dave Bittner: All right. Well (laughter), these stories just keep popping up, don't they? It's interesting to follow. 

Ben Yelin: Yeah. And it's so funny to talk about this after we talk about all of these companies that are reconsidering facial recognition software. I think... 

Dave Bittner: Right. 

Ben Yelin: ...One of the reasons they're reconsidering the use of it is because it's kind of grown so far out of our control. It's been propagated very quickly across the country in the last few years. 

Dave Bittner: All right. Interesting story. Of course, we'll have a link to that in the show notes. My story this week - this comes from Seamus Hughes, who is deputy director of the Program on Extremism at George Washington University, and he posted a fascinating thread on Twitter that we're going to follow along here. Ben, of course, the - enshrined in the First Amendment is the right of citizens to peacefully assemble. 

Ben Yelin: Absolutely. 

Dave Bittner: We've been seeing a lot of that lately with some of the protests we've seen against police violence and so on. And, you know, most of that has been peaceful, but there has been some violence. There has been some damage to private property. And of course, you know, within that right to peacefully assemble, that does not include arson. That does not include the setting on fire of police cars. 

Ben Yelin: It certainly does not. Yeah. 

Dave Bittner: And so what Seamus has highlighted here and has really provided a set of Cliff Notes for is the FBI, with an affidavit that they have submitted where they are alleging that a woman set fire to a couple of police cars during one of these protests. The woman is named Lore-Elisabeth Blumenthal, who is alleged to have done this by the FBI. And what this really tracks is what we call OSINT in the security world. That stands for open-source intelligence. And it's the case of the FBI using publicly available information to try to track down who this person was. And it's a fascinating story. It involves Etsy, tattoos and massages. So there's something for everyone here. 

(LAUGHTER) 

Dave Bittner: It starts out with one of the protests, which was in Philadelphia. And the police force had a couple of - their cars were set on fire. They were burned to the ground, destroyed. And some photos came up of a woman who was holding a flaming piece of wood next to one of the cars. And so the FBI was able to get this photo, which I believe was on Instagram. Yeah, it was Instagram. 

Ben Yelin: Yeah, that's where it first showed up. Yeah. 

Dave Bittner: So to describe this photo, there's a woman. She's in the midst of sort of hurling this flaming piece of wood into a police car. And it's a white woman. She's got a blue T-shirt on that has some text on it, some blue jeans. She's wearing a mask. So the FBI used that as a starting point, and they went around and they gathered more photos from the event from amateur photographers. They were able to find this woman in other photographs from the protests of the day. And they were able to find that she was wearing a T-shirt that said, keep the immigrants; deport the racists - a light blue T-shirt that had that text printed on the front of it. 

Dave Bittner: So they went and started searching around for who sells that T-shirt. And they found someone on Etsy who sells the T-shirt. And then in the meantime, they also started searching for who this person could be. So in the comments of this Etsy account, they found a username. They were able to cross-reference that username with that same person using that same username on other accounts. Through that, they got the name Lore-Elisabeth. They were able to track that down to a LinkedIn profile in the Philadelphia area that also had the name Lore-Elisabeth. This Lore-Elisabeth worked for a company that provides massage therapy services. The massage therapy company had some videos, some promotional videos, on their website, which featured some of their massage therapists. And one of the people in those videos had a tattoo on her arm which matches a tattoo of the woman in the photos from the protest. So we're getting closer and closer here, Ben. 

(LAUGHTER) 

Ben Yelin: Yes. Bring us home, Dave. I mean, this is... 

Dave Bittner: So... 

Ben Yelin: The writers of "Law & Order" are just not even close to being as creative as this real-life story, not even in the same universe. 

Dave Bittner: Just as an aside, there's - in one of the photos from the FBI's submission here, they have a close-up photo of the woman's tattoo from a photograph that was taken there during the day, and it says a magnified and cropped image. And I just imagine - whenever I see something like this, I imagine, you know, Captain Picard sitting on the bridge of the Enterprise saying, you know, onscreen magnify, you know, enhance, right? (Laughter). 

Ben Yelin: Yeah. Magnify. Yeah. 

Dave Bittner: So they match this tattoo to the tattoos in the videos. They subpoena the records from the Etsy store for who purchased this particular shirt. That leads them to, sure enough, a matching name. They get the shipping address of the woman who purchased the shirts. I suppose at that point, they - what? Did they take this to a judge and get a warrant for her arrest? Is that how it works? 

Ben Yelin: That's what happens. And I presume that she's been arrested at this point, although it doesn't say explicitly in this Twitter thread. 

Dave Bittner: Yeah. What do you make of all this, Ben? 

Ben Yelin: It's extraordinary. I mean, the story is just incredible. The fact that all you had to begin with was a photograph. There's nothing particularly identifiable about this person if you look at a photograph from a long distance. It's a woman wearing a mask. You can see what color her shirt is, but that's about it. That they first went to Instagram and found a user who had taken the photo, got permission from that Instagram user to obtain that photo and cross-referenced it to other photos of the protest, were able from that to zoom in and find out two relatively simple, mundane things - the message on her shirt and the tattoo that she had. And just through normal investigative open-source police work, were able within a very short time period - i.e., a single day, basically - get a warrant for this person's arrest. 

Ben Yelin: The story here is that we all have a very large digital footprint. It's larger than we can possibly imagine, whether you are buying something on Etsy. What is it, Poshmark that she used? I had never heard of that. Do you know what that is? 

Dave Bittner: Yeah, I think it's another online store. 

Ben Yelin: Yeah. So that's where they cross-referenced her username from a comment section, which led them to a LinkedIn profile, which led them to the website of the massage parlor where she works. This is all information that is publicly available. The only subpoena they had to obtain was from Etsy to get the address to where they shipped this - the shirt. And they were probably able to obtain this subpoena because they had reasonable suspicion that this was a criminal suspect based on all the open-source information that they had obtained from other sources. 

Dave Bittner: Yeah. 

Ben Yelin: So there is a lesson in all of this besides, you know, the fact that this is just an incredible series of events... 

Dave Bittner: Right. 

Ben Yelin: ...And a fascinating, entertaining story. People need to realize how large their digital footprint is. You know, it builds up over time in a bunch of different places. And at some point, if you want to avoid a situation like this, even if you don't think you're going to be setting cars on fire... 

(LAUGHTER) 

Ben Yelin: But, you know, if you think you're going to be involved in maybe a politically contentious protest, you should think about minimizing your digital footprint. It's about going into LinkedIn and changing your privacy settings so that you're not available in a public search, doing the same thing on sites like Etsy and Poshmark. It's about not having anything identifiable on your organization's website that would identify an employee, such as a tattoo. 

Ben Yelin: This can be a very time-consuming process, but unless you don't do it, it means that, this day and age, if you commit a crime in public, even if you've concealed yourself with a mask or something else, there's so much information out there that you are probably going to get caught, eventually. I'd say it's pretty unlikely that it would be as fast as the law enforcement was able to... 

Dave Bittner: Right (laughter). Right. 

Ben Yelin: ...Put together in these circumstances. 

Dave Bittner: Right. 

Ben Yelin: But you're going to get caught. So it's just - this is just the ultimate story about how large our digital footprint is. 

Dave Bittner: Yeah. And to me, it's that no matter how careful you've been with these sorts of things, chances are you're not as anonymous as you think you are. 

Ben Yelin: You certainly are not. I mean, part of it is that there's such a plethora of not only social media but just - you know, every website we do online shopping, we probably forget that we've used a lot of these services. So, you know, if I decided I wanted to scrub my digital footprint tomorrow, I'd start with the social networks I use the most, like Facebook and Twitter, maybe LinkedIn. But would I get really granular and go down to that Jimmy John's profile I created so I could, you know, save up for a free sandwich? Probably not. 

Dave Bittner: (Laughter) Right. Right. 

Ben Yelin: But they have information about me as well. 

Dave Bittner: Right. 

Ben Yelin: It's just - you put together such a vast profile of yourself without even really thinking about it or being conscious about it. And it's just amazing to see somebody - in this case, an FBI agent - kind of put the pieces of the puzzle all together. 

Dave Bittner: Yeah. 

Ben Yelin: Yeah, it's really extraordinary. 

Dave Bittner: Really interesting story. We'll have a link to that from Seamus Hughes. Again, he's the deputy director of the Program on Extremism at George Washington University. We'll have to try to get him on the show. Seems like - interesting guy we'd probably like to talk to. 

Ben Yelin: Absolutely. 

Dave Bittner: Yeah. 

Ben Yelin: Yeah, if you're listening to this, please, please come on "Caveat." 

Dave Bittner: (Laughter). 

Ben Yelin: And should we give a shoutout to our friend of the show who made us aware of this story? 

Dave Bittner: Yeah, absolutely. Our thanks to Liz Wharton. She's @lawyerliz on Twitter. She's been a guest on our show and quite often sends us interesting things that she thinks might be interesting to us and our audience. And in this case, that surely was the case. So thanks to Liz Wharton for sending this over to us. 

Ben Yelin: Absolutely. Thank you, Liz. 

Dave Bittner: Well, it's time to move on to our Listener on the Line. 

(SOUNDBITE OF DIALING PHONE) 

Dave Bittner: An email that we got - a bit of follow-up, I suppose. And this comes from a listener who is from New Zealand. And he says, a couple of questions based on the show that I just listened to. With reference to time limits, sunset for provisions, weren't those enacted under the Patriot Act limited to short term, and they've just been extended each time it comes up with little discussion, until the last few months at least? This listener goes on to write, the U.K. has had a similar problem, even with a change of government. Those in opposition had complained about the provisions and then kept them anyway when they got into power. For qualified immunity, is it possible to carry out a test case now to get a decision recorded that would then cover the use of stingrays? Quite a few questions here, Ben. What do you think? 

Ben Yelin: Yeah. First of all, great to have listeners from New Zealand. And congratulations to this listener and his country eliminating the coronavirus in that country. 

Dave Bittner: (Laughter) Yes, leading the charge. Yeah. 

Ben Yelin: Yeah, I wish we were as lucky. 

Dave Bittner: Right. 

Ben Yelin: So great questions. As it relates to sunset provisions for the Patriot Act, the original Patriot Act and every successive reauthorization did have a sunset provision in it. The listener is right that these were reauthorized without much thought the first few times the program was reauthorized. I think, recently, especially after the Edward Snowden disclosures, there's been sort of more oversight, more skepticism about the surveillance state. And so Patriot Act reauthorizations have been a little bit more contentious. We saw it in 2015. That led to the passage of the USA Freedom Act. And, again, here, this year, we are still without an extension of some provisions of the USA Patriot Act because Congress has yet to agree on a reauthorization. 

Ben Yelin: But the listener is absolutely right that it was sort of pro forma after the act first passed. I think the first reauthorization was in 2006. And there was some debate, but it was never in doubt that the bill would be reauthorized. We were still in the shadow of 9/11 at that point. 

Ben Yelin: The point he makes about parties in opposition getting into power and not curbing surveillance practices or other pervasive government actions is a great one. We see this all the time. Opposition parties are always the ones that rail against whatever the government is doing. But once you obtain power and you understand the full breadth of your own tools, you're going to want to use those tools. And there are a lot of career people in intelligence agencies who stay at those agencies regardless of which party is in power, and they may have the ear of the incoming administration and will try and convince them of the importance of some of these surveillance and national security tools. So that point is taken as well. 

Ben Yelin: In terms of carrying out a test case, you could certainly see that happening. You know, for a test case, you do have to have a live case and controversy. So if you're the ACLU, you want to find an ideal plaintiff who actually was arrested and prosecuted on the basis of stingray technology and a case that you think you could win. Sometimes that's going to be a long nationwide search. You know, maybe you'll try a bunch of different cases with a bunch of different plaintiffs with the hope that you'll win in a federal district court somewhere and, eventually, the case will make it through the federal court system. So all great questions. And thank you for writing in. 

Dave Bittner: All right. And of course, we'd love to hear from you. We have a call-in number. It's 410-618-3720. You can call and leave your question there. You can also send us an audio file, and we will use that on the air. And of course, you can always write to us. It's caveat@thecyberwire.com. 

Dave Bittner: Ben, I recently had the pleasure of speaking with Maureen Webb. She is the author of the book "Coding Democracy: How Hackers are Disrupting Power, Surveillance, and Authoritarianism." Really interesting conversation. Here's my talk with Maureen Webb. 

Maureen Webb: You know, one thing that hackers are doing is they are trying to teach the rest of us, really, a new digital-era civics. Many of us are unaware of the technical issues that are determining so much of how our societies work now. And I think a central premise that hackers have embraced is that code is law. Code, more than law, will determine the kinds of societies that we live in and whether they end up resembling democracies at all. Things like privacy and transparency, data self-determination, net neutrality, common space production and free software - these really are almost the new organizing principles of a digital-era democracy, almost like the Enlightenment era principles of fraternity, liberty and equality from the 18th century. But many of us who are concerned with democratic constitutionalism are unaware of these issues, and this is the kind of experimentation that progressive hackers are undertaking. 

Maureen Webb: They are trying to build a new, decentralized web that is neutral by design. They're trying to secure privacy and transparency for the ordinary user through a plethora of privacy tools and business models and through a plethora of leaking platforms - not just WikiLeaks, but there's been a real explosion of these leaking platforms around the world - that will hold governments and oligarchs accountable, trying to defend free software, developing the GPL licenses that guarantee that free software remains free, and also more technically complex experiments where they're looking at peer-to-peer technology and blockchain to really do a whole bunch of things that I think would fundamentally change our political economy if they come to fruition. 

Dave Bittner: I'm reminded of some things I've heard scientists say when it comes to political discourse, which is that it comes to pass, more often than not, I suppose, that they're not so good at explaining things, that that is not their core competency. Yes, we've had our explainers. We've had our Carl Sagans. We've had our Bill Nye the Science Guys. We have our, you know, Neil deGrasse Tysons. But those are sort of few and far between. And I wonder, does that apply to the hackers as well? How do they maximize their effectiveness in spreading the word about their efforts? 

Maureen Webb: I think that's an excellent point. I think that's very much true. First of all, they're trying to overcome - you know, hacking, as a word, embraces a whole range of activities from the clearly dangerous and nihilistic to the very altruistic and everything in between. So they're fighting sort of a semantic battle. And the same with free software - the idea of free software as opposed to open software or closed software is fairly confusing until you delve into it. They also have the trouble of creating interfaces which are usable for the ordinary user. And until they do that, they really are not going to be able to make an impact because users simply are not geeky enough to take the time to try to utilize hacker experiments unless there is a good user interface. 

Maureen Webb: But, yeah, more than that, these are complex technical and social issues, and I think that the public service that I try to provide as a - both as someone who understands the constitutional and social theory but also has a foot in the world of the technology, understands the civil liberties, someone who can tell their story in a compelling and accessible way. And what's really important for users is not necessarily becoming geeks themselves but understanding what's at stake so that societies can shift their resources and their attention to the kinds of experiments that are going to update, to upgrade our democracies and ensure their survival into the next century. 

Dave Bittner: You know, it strikes me that people who are in power like to keep that power, and I think of some of the traditional ways that the business of politics is done - through lobbying, with money. And I wonder - the people who have the power, how are they resisting these efforts from the hackers to - you know, these new upstarts, you know, to make their way into this established system? 

Maureen Webb: Of course, those that have power hold onto it, and those that challenge it are severely punished until they're able to somehow shift that power relationship. And so if you look at the history of social movements, you have martyrs. You have terrible costs for people that challenge the status quo at the beginning. And ultimately, a kind of consensus builds until the powerful have to concede. And I think, you know, at the dawning of the digital age, you're going to have very severe punishments for farmers who hack their tractors in order to be able to fix them - to get around the digital rights management code in their tractors, for security researchers that try to hack into black boxes of code to determine whether they're doing what they promised or whether they're just inserting malware into ordinary users' computers, to the whistleblowers that hack into databases. We've seen that they're being severely punished right now. And one of the things that I deal with in the book is I talk about the value and the risks of transgressive acts and how civil disobedience, which has a long tradition in American democracy, and other acts of resistance and defiance are very important to move society to new ways of thinking. And I think, you know, during this pandemic period where everything seems to be falling down around us, people might be more sensitive to that history, to that idea that we have these moments of great social insight or great leaps forward in the way we organize our societies when there are experiments and ideas lying around and when social movements have been pushing power structures. Then they can sometimes, suddenly, fall and the new order can come into being or can be embraced. 

Maureen Webb: I think that it's really important that hackers are experimenting right now, and they're experimenting at - you know, with some really mind-blowing things. But if their ideas or one of their experiments somehow takes hold or triggers emergence effects, it could change the whole political economy. It could change how work is valued, how value is traded and exchanged, whether these giant monopoly - digital monopolies continue to exist and suck the oxygen out of our local and working economies. So I think it's a fascinating time right now. And hackers are going to be a key catalyst in whatever happens. 

Dave Bittner: From your perspective as a constitutional scholar, do you have concerns? Are there things that you're tracking here, things that you learned that make you raise your eyebrows and say, this particular direction might not end well, history tells us this could be a bumpy ride? 

Maureen Webb: Oh, for sure, it's going to be a bumpy ride (laughter). We've got, like, a century or two ahead of us that's going to be a wild ride. I've got to acknowledge, of course, that there's a lot of truly heinous hacking going on at the moment, both between states and among criminal elements. I know that your program deals with a lot of the technical aspects. I'm sure you have many security researchers and consultants in your audience, in your dedicated fan base. So they would know about this. You know, hackers can hack critical infrastructure. 

Dave Bittner: Right. 

Maureen Webb: We all know the stereotype and the bad things that hackers can do. And also, there's legitimate questions around, for example, the activities of an organization like WikiLeaks, the kind of leaking that is responsible or irresponsible in terms of protecting individuals or allowing institutions to have some ability to operate without complete transparency because complete transparency makes diplomacy, for example, difficult. 

Maureen Webb: There's a lot to be worked out in the next century - not only the technological advances; there will have to be technological innovations to make peer-to-peer and blockchain work in a way that serves society. But there also need to be theoretical innovations because I don't think anybody has fully theorized what a new political economy could be, an economy that's not based on an industrial model, an industrial-based mode of production. You know, and that's the other fascinating thing, is that when you have code, code can be developed almost at zero cost. 

Dave Bittner: Right. 

Maureen Webb: So what does that mean for society? Why are we allowing all of the value and all of the exchange power to be captured by a few players when the code itself can be reproduced at zero cost? This is, in some ways, the end of the theory of capitalism. 

Dave Bittner: All right. Ben, interesting conversation, huh? 

Ben Yelin: Yeah. I said this to you before we started recording, but it's really one of the most fascinating interviews I think we've done on this podcast. I mean, she's very insightful, and I think she's really opened my mind to sort of the democratizing aspect of hacking. I think it was particularly interesting to listen to in this current geopolitical moment, where we're seeing vast societal changes as the result of disruptive action. What's happening now is large-scale political protests. You know, sometimes they've turned violent, but oftentimes they're not violent at all. But they are sort of creative destruction. In the words of Representative John Lewis, you're making good trouble. 

Ben Yelin: And that's sort of the point she was making about hackers. Some of the most profound, important change in our society is when people take action that may or may not be illegal but that's uncomfortable for people in power, but it's nevertheless very important to maintain our democratic system. So, you know, I think this is certainly food for thought. It's a different perspective on, you know, people who have chose this as a hobby or a career path that there really is a moral to hacking in certain circumstances, as it comes to democracy. 

Dave Bittner: Yeah. 

Ben Yelin: So very much appreciate the interview. And, you know, I think it's certainly food for thought. 

Dave Bittner: Yeah, absolutely. Our thanks to Maureen Webb for joining us. Again, the book is titled "Coding Democracy: How Hackers are Disrupting Power, Surveillance, and Authoritarianism." 

Dave Bittner: That is our show, and we want to thank all of you for listening. The "Caveat" podcast is proudly produced in Maryland at the startup studios of DataTribe, where they're co-building the next generation of cybersecurity teams and technologies. Our coordinating producers are Kelsea Bond and Jennifer Eiben. Our executive editor is Peter Kilpe. I'm Dave Bittner. 

Ben Yelin: And I'm Ben Yelin. 

Dave Bittner: Thanks for listening.