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Q2 - Power, Law, and Civic Life: When Algorithms Govern Your Life with Nathan Wessler, JD · Paths of Curiosity in an AI World

• 0:04
  SPEAKER_00: Welcome to Path of Curiosity in an AI world where we explore the world's careers through the lens of AI.
• 0:14
  SPEAKER_00: Many of you might not know that right now, without a warrant, the government could know everywhere you've been, everyone you call, and everything you search.
• 0:26
  SPEAKER_00: Nathan Wesler went to the Supreme Court.
• 0:33
  SPEAKER_00: Let's get curious.
• 1:22
  SPEAKER_00: Establishing a law enforcement.
• 1:24
  SPEAKER_00: You must get a warrant for accessing your cell phone location history.
• 1:30
  SPEAKER_00: Thank you so much for joining us.
• 1:33
  SPEAKER_01: I'm really pleased to be talking to you.
• 1:35
  SPEAKER_01: Thanks for the invitation.
• 1:38
  SPEAKER_00: Most of our listeners carry a phone everywhere.
• 1:41
  SPEAKER_00: And most of us have no idea that right now, without a warrant, someone could potentially know everywhere we've been, everyone we've called, and what we've searched.
• 1:53
  SPEAKER_00: How close is that to the reality you deal with every day?
• 1:58
  SPEAKER_01: Yeah, so I my job here at the ACLU is to worry about exactly these kinds of problems, privacy in the digital age.
• 2:05
  SPEAKER_01: And I focus mostly on questions around the government trying to access our personal sensitive and private information, whether it's tracking cell phones, getting access to our online information, our emails, our direct messages, to things like searching our electronic devices at the border or using facial recognition technology to identify people and potentially arrest them or track them, uh, and lots lots of other kind of related questions.
• 2:33
  SPEAKER_01: You know, we're in an age now where there is a truly unprecedented amount of information available to the government if they go looking.
• 2:43
  SPEAKER_01: And there's a limited amount that any of us as individuals can do to protect ourselves if we want to still be participants in real life in the digital age.
• 2:53
  SPEAKER_01: There are some things, and we can talk about those, but really we rely on legal protections.
• 2:58
  SPEAKER_01: And a lot of my job is litigating in the courts to try to move toward more robust interpretations of our constitution and of laws to put limits on law enforcement's ability to delve into some of the most private and personal information about us that exists now in digital form.
• 3:17
  SPEAKER_00: So could you share a little bit about what your day looks like?
• 3:22
  SPEAKER_01: Yeah, so I'm a litigator.
• 3:25
  SPEAKER_01: I work mostly on cases in the courts, although I do a lot of other kinds of advocacy too.
• 3:30
  SPEAKER_01: My job is a lot of sitting at my computer, corresponding over email, legal research, writing briefs, reviewing briefs.
• 3:36
  SPEAKER_01: It varies a little day to day, but the ACLU is what we sometimes call an impact litigation organization.
• 3:43
  SPEAKER_01: And so we take a relatively small number of kind of high-impact cases to try to protect people's rights and move judicial interpretation of the law forward to be more protective of our rights.
• 3:56
  SPEAKER_01: We're different from a direct legal services organization that's taking cases of everyone who walks in the door, right?
• 4:02
  SPEAKER_01: A housing rights organization, a criminal defense group.
• 4:05
  SPEAKER_01: Um, we are set up for a smaller number of often more complex cases.
• 4:11
  SPEAKER_01: And so some of my work is developing those cases, developing challenges to what we think are unconstitutional or illegal government practices.
• 4:19
  SPEAKER_01: Some of my work is filing briefs, what are called amicus briefs or friend-of-the-court briefs, in other people's cases, expressing the ACLU's view of how technology and the constitution interact and what the privacy implications are of current government practices and how the court can provide more protections to people against unjustified searches and seizures of our personal information.
• 4:43
  SPEAKER_01: I do a fair amount of work under the Freedom of Information Act and state laws that are similar that give just normal people the ability to ask the government for records about certain topics.
• 4:54
  SPEAKER_01: And sometimes we have to actually go to court to try to force the government to release information about what kinds of surveillance activities it's engaged in, what its policies are, so that advocates and journalists and courts actually know what we need to worry about.
• 5:08
  SPEAKER_01: And then I spend a fair amount of time also talking to reporters and writing and helping educate the public about what the threats are.
• 5:15
  SPEAKER_00: Walk us from where you were as a student and what you thought you'd do all the way to arguing before the Supreme Court.
• 5:25
  SPEAKER_01: Yeah, so when I graduated from college, I kind of knew that law school was maybe one option among many.
• 5:31
  SPEAKER_01: It was interesting, but I I did not know for sure at all that that's where I wanted to end up.
• 5:36
  SPEAKER_01: And I graduated from college in a presidential election year.
• 5:38
  SPEAKER_01: I had a job doing election-related organizing uh from the summer into November.
• 5:44
  SPEAKER_01: And then after that, I got a job after the election, got a job down in Washington, D.C.
• 5:48
  SPEAKER_01: with the ACLU as a field organizer, where I was working closely with our lobbying and advocacy staff on a set of really pressing civil liberties issues coming up in Congress.
• 5:57
  SPEAKER_01: My job is to go out and organize people, normal people, to contact their elected officials on these really key issues around free speech, civil rights, civil liberties, other kinds of violations and of rights.
• 6:12
  SPEAKER_01: And it was really through my couple of years at the ACLU as a field organizer, seeing all these ACLU lawyers in the courts, that I realized like, oh yeah, actually, I want to go to law school.
• 6:21
  SPEAKER_01: That's the set of skills that I really want, and that's the kind of impact I want to want to have.
• 6:26
  SPEAKER_01: Uh so I went off to law school.
• 6:27
  SPEAKER_01: And the, you know, the set of issues that I was really most focused on, even before law school and then through law school, was a whole constellation of really dire civil rights and civil liberties and human rights violations that followed September 11, 2001, of Muslim American and Asian American and South Asian American communities in the United States, the targeted killing and drone strike program that the U.S.
• 6:50
  SPEAKER_01: was running outside the country, uh, indefinite detention at Guantanamo, torture, extraordinary rendition, right?
• 6:57
  SPEAKER_01: Kidnapping people basically and sending them to black site prisons.
• 7:00
  SPEAKER_01: Uh and so the I graduated from law school, I clerked for a judge for a year, and then I came to the ACLU on a one-year fellowship position working on exactly those issues.
• 7:10
  SPEAKER_01: And had there been a permanent job working on those issues after that time limit of fellowship, I probably would have, you know, I certainly would have tried to get it, but there wasn't one available at the time.
• 7:19
  SPEAKER_01: But there was this position in our speech privacy and technology project to work on issues of free speech and privacy in the digital age, something that I thought was both important and really interesting, but didn't have particular experience with.
• 7:32
  SPEAKER_01: But the stars aligned for me, and I got the job, and I just grew into it.
• 7:36
  SPEAKER_01: I don't have a technical background at all, not a computer science degree or engineering.
• 7:40
  SPEAKER_01: I was a political science major in college with a minor in peace and conflict studies.
• 7:45
  SPEAKER_01: So I've learned the technology side of the job as I've gone and developed an expertise around what are, I think, increasingly relevant and pressing questions about how to interpret the Fourth Amendment to our constitution, the part of the Constitution that regulates government searches and seizures, right?
• 8:02
  SPEAKER_01: That tries to protect our privacy, how to apply that in the digital age.
• 8:06
  SPEAKER_00: We'll get to some of your work in a moment.
• 8:08
  SPEAKER_00: But before that, looking back on your journey, what's one thing you wish someone had told you before you committed to a path?
• 8:17
  SPEAKER_01: I think one thing that I have sort of figured out on my own is that it's very hard to plan out the whole of your life, and probably you're not going to be successful in doing that.
• 8:28
  SPEAKER_01: And the best thing that has served me is to make the best decision that I can when that decision's in front of me, right?
• 8:34
  SPEAKER_01: Of course, you know, trying to plan, trying to build experiences that I think are relevant to what I want to do.
• 8:40
  SPEAKER_01: But if this turn in kind of focus of my career taught me anything, it's that sometimes you can't plan it out, and actually you end up in a great place, and you just have to make the the next decision that's in front of you and then see where that leads.
• 8:55
  SPEAKER_00: So before AI-powered surveillance tools existed, how did law enforcement track people?
• 9:01
  SPEAKER_00: And what specifically changed when facial recognition and algorithmic tracking arrived?
• 9:08
  SPEAKER_01: Yeah, so this is really the crux of the work I do is thinking about what were the capabilities that police and the government had before the digital age, and what are the new capabilities that these modern technologies provide, and what impact does that have on our privacy and our really our ability to live in a free society.
• 9:26
  SPEAKER_01: And in really critical ways, the you know, the government has always had a lot of power to do certain kinds of things that the courts have said isn't even regulated by the Constitution, the Fourth Amendment.
• 9:38
  SPEAKER_01: For example, you know, follow somebody, right?
• 9:40
  SPEAKER_01: Put a tail on them.
• 9:41
  SPEAKER_01: You know, you see like old police movies, right, or crime shows where cops are staking at a house in their car and you know, eating pizzas and donuts and sitting behind a newspaper for a long time, and then someone comes out of the driveway and the cops are in an unmarked car and they follow that person for a long time.
• 9:57
  SPEAKER_01: Police have always been able to do that without having to get a warrant or go to a judge, and they still can.
• 10:02
  SPEAKER_01: And that, of course, can be very invasive, right?
• 10:04
  SPEAKER_01: You learn a lot about a person from watching them for a long time.
• 10:06
  SPEAKER_01: Police can go through people's trash without a warrant in many states.
• 10:10
  SPEAKER_01: Um but the real protection has always been that that is labor-intensive.
• 10:15
  SPEAKER_01: It takes time.
• 10:16
  SPEAKER_01: You have to assign officers to it, you have to make choices about which investigations are important enough to do that.
• 10:21
  SPEAKER_01: It happens in a relatively small number of investigations.
• 10:24
  SPEAKER_01: And there's practical impediments that meant it was very hard to violate lots of people's privacy at scale.
• 10:30
  SPEAKER_01: Of course, there have been terrible abuses of police power throughout this country's history.
• 10:34
  SPEAKER_01: So I'm not trying to minimize that, but it was very hard to do it in a kind of truly dragnet way.
• 10:40
  SPEAKER_01: Now these digital-age technologies mean that police can collect those kinds of details on a person's life and so much more, literally at the press of a button.
• 10:49
  SPEAKER_01: And so the practical impediments and the costs to really invasive surveillance have just dropped precipitously, which means that we now are at the mercy of privacy invasions, unless the law catches up and does things like requiring a warrant from a judge before police can can say, get your historical cell phone location information.
• 11:11
  SPEAKER_01: That was the question at issue in the Supreme Court case that I argued that we might talk more about.
• 11:16
  SPEAKER_01: Or um, you know, questions around what should be the threshold before police can use face recognition technology if they can ever use it.
• 11:23
  SPEAKER_01: And we at the sale, you actually think that that technology is fundamentally dangerous in a way that it just shouldn't be played with by the government.
• 11:30
  SPEAKER_01: But in places where it still is, there are some safeguards that can make it a little less dangerous, although not eliminate the risk.
• 11:36
  SPEAKER_01: But we're living in an age now where there's a volume of information about us that exists online and tied to our electronic devices, particularly our phones, that literally never existed before, right?
• 11:48
  SPEAKER_01: Never before was there a repository that police could get access to that charted everywhere you've gone over time.
• 11:56
  SPEAKER_01: That's our cell phone location history.
• 11:58
  SPEAKER_01: Um never before was there a way police could point a device at you and in a microsecond have it spit back information about who you purportedly are.
• 12:09
  SPEAKER_01: That information might be wrong and technology gets it wrong, but face recognition technology is an incredible new power in the hands of government.
• 12:15
  SPEAKER_01: And there are lots more examples of that.
• 12:17
  SPEAKER_01: And so it's really a fundamentally new set of challenges, not just a question of how efficient are the government, but really a question of how it's able to do things that were categorically impossible before.
• 12:31
  SPEAKER_00: So say I'm a student walking around town.
• 12:34
  SPEAKER_00: Without knowing it, what might be happening to my face, my phone, my location data?
• 12:40
  SPEAKER_01: Yeah, so starting with our phones, so there are a couple different places where our location data lives coming out of our phones, right?
• 12:47
  SPEAKER_01: So one is the cell phone company, the you know, Verizon or AT ⁇ T or one of the other companies.
• 12:53
  SPEAKER_01: Those networks are always talking to the phone through the cell towers, right?
• 12:56
  SPEAKER_01: They have to know where the phone is to route calls and text messages.
• 12:59
  SPEAKER_01: Every time a phone makes or receives a call or sends a received a text message, or makes a data connection for internet browsing, there's a connection with a cell tower.
• 13:08
  SPEAKER_01: And the company is recording information about which cell tower the phone's talking to and what direction from the tower the phone is, and sometimes an estimate of how far the phone is from the tower.
• 13:19
  SPEAKER_01: And the companies keep that for their own reasons, for network diagnostics, for billing, maybe for other reasons.
• 13:25
  SPEAKER_01: But it also is a ledger of where you go over time, right?
• 13:29
  SPEAKER_01: It's it's a location history.
• 13:31
  SPEAKER_01: Uh the Supreme Court in a case called Carpenter versus the United States, that I argued in 2017, held that if the government wants access to that repository of cell phone location data, they have to go to a judge and get a warrant, which was an important, important rule because prior to that the government did not believe they had to get a warrant.
• 13:49
  SPEAKER_01: Um, but that's not the only place that this location data exists because we also, of course, have apps on our smartphones, a lot of apps.
• 13:57
  SPEAKER_01: And if you have location services enabled and you haven't turned off app by app access to the GPS chip, to location services on the phone, many of those apps are collecting your location information.
• 14:10
  SPEAKER_01: And many of them are making money off of it.
• 14:12
  SPEAKER_01: A lot of apps are free, other apps are like relatively inexpensive.
• 14:16
  SPEAKER_01: Those companies are for-profit companies.
• 14:18
  SPEAKER_01: They're making money somehow.
• 14:19
  SPEAKER_01: And part of the way they make money is by monetizing our personal private information, including location data, uh location data that's very accurate, right, based on GPS location from the phone itself.
• 14:29
  SPEAKER_01: And that's often then sold into this huge data broker market.
• 14:34
  SPEAKER_01: And some of the buyers for that information are advertising companies, right, that want to be able to send targeted ads based on where you are and where you go over time and what supermarket you go to, et cetera.
• 14:45
  SPEAKER_01: There are other entities like say insurance companies or others.
• 14:48
  SPEAKER_01: And then there's the government and law enforcement agencies have realized that in the aftermath of the carpenter decision that makes them go to a judge if they want to go to the cell phone company, maybe they can get around that by going and paying money instead of going to a judge.
• 15:01
  SPEAKER_01: And so that's a problem that we're now dealing with.
• 15:03
  SPEAKER_01: And in fact, we've seen at the federal level the Department of Homeland Security, particularly ICE, re-upping its purchase of access to that kind of location information without getting warrants.
• 15:13
  SPEAKER_01: Just this week, the director of the FBI revealed that the FBI is again buying access to that information, something it had stopped doing a couple of years ago.
• 15:21
  SPEAKER_01: Uh and we've seen local law enforcement in places in the country also trying to get that information.
• 15:26
  SPEAKER_01: Um so that's that's location data, but that's not the only kind of location data out there either, right?
• 15:33
  SPEAKER_01: There are automated license plate readers that are set up in most US cities and along many highways that read every license plate that goes by and put it into a huge database that allows police to dip in later and figure out where any or every car went over time.
• 15:48
  SPEAKER_01: And of course, in many communities in the US, you need a car to get around, right?
• 15:52
  SPEAKER_01: People are not riding public transit.
• 15:54
  SPEAKER_01: And so tracking where a car goes tells you a tremendous amount about where a person goes, right?
• 15:59
  SPEAKER_01: Do you, after school, are you stopping off at your social work appointment?
• 16:04
  SPEAKER_01: Or are you going to the ice cream parlor?
• 16:07
  SPEAKER_01: Or are you going to a vanicologist?
• 16:09
  SPEAKER_01: Are you going to a friend?
• 16:10
  SPEAKER_01: Are you sneaking over to a boyfriend's house?
• 16:12
  SPEAKER_01: You know, it's all kinds of things that we would rather probably not be in a government database suddenly are accessible to the government in a way they never were before.
• 16:21
  SPEAKER_01: Then there's face recognition technology, which is dangerous in a number of ways, we think.
• 16:26
  SPEAKER_01: Dangerous both because it often gets it wrong when it's trying to identify people, and it gets it wrong more often for people of color, darker skinned people, as well as young people and women.
• 16:35
  SPEAKER_01: But also, to the extent that sometimes it gets it right, it opens up a tremendously scary capability to track us as we go about our daily lives.
• 16:46
  SPEAKER_01: So we are very concerned that the networks of surveillance cameras that exist in lots of communities across the country could suddenly sort of wake up when they're paired with face recognition technology and become not just a way to record stuff that happens in case someone wants to look later, but be like an active tracking mechanism to identify who we are, where we're going.
• 17:09
  SPEAKER_01: There are a number of retail chains that are already doing this.
• 17:12
  SPEAKER_01: I'm on the East Coast, where Wegman's is an increasingly big chain, and they've revealed that they're using face recognition technology.
• 17:18
  SPEAKER_01: Macy's department stores are using it, RiteAid Pharmacies were using it extensively until the federal government a few years ago made them shut it down for abuses.
• 17:27
  SPEAKER_01: We've seen sports venues using it, places like Madison Square Garden, sports and concert venues.
• 17:34
  SPEAKER_01: And we've started to see it in a broader way in places like New Orleans, where we're starting to see networks of cameras actually out on the streets being linked together with face recognition, which which is tremendously risky in what's supposed to be a free society.
• 17:48
  SPEAKER_00: So we've mentioned briefly how you've argued Carpenter of the United States at the Supreme Court and won.
• 17:55
  SPEAKER_00: What was actually at stake in that case, and what would have happened to every American's privacy if you had lost?
• 18:05
  SPEAKER_01: Yeah, so that that case was a sense about this very particular question of whether the government has to go, and police particularly have to go to a judge first and get a search warrant before getting access to your self-allocation history.
• 18:18
  SPEAKER_01: But the broader implications of what the argument was that the government was making was was even beyond that.
• 18:24
  SPEAKER_01: So the the government's argument was that anytime you interact with a company and your personal information ends up in company hands, you have just lost all of your constitutional protection for that information, all of your Fourth Amendment rights, and the government can get at any time.
• 18:40
  SPEAKER_01: And in fact, there's a pair of cases from the U.S.
• 18:43
  SPEAKER_01: Supreme Court from the 1970s that ruled along those lines for pre-digital records.
• 18:48
  SPEAKER_01: One of them was about banking information, right?
• 18:52
  SPEAKER_01: So if you write paper check or do other things with your bank and the bank keeps a record of that, the Supreme Court said police can go to the bank and get information about your account without going to a judge first and getting a warrant, because the Supreme Court reasons that you chose to use the bank and you should know that they are keeping a record of the stuff.
• 19:08
  SPEAKER_01: And in fact, that's now the bank's business record, right?
• 19:11
  SPEAKER_01: They have to know how much you're depositing and withdrawing from your account.
• 19:15
  SPEAKER_01: And of course they have a record of it, and that's theirs now, not yours.
• 19:18
  SPEAKER_01: There was a similar ruling from the Supreme Court about phone numbers we dial, where police were trying to figure out if a particular person was making some harassing phone calls.
• 19:28
  SPEAKER_01: So they went to the phone company without a warrant from a judge and got a record of the phone calls that person had made and used it to try to prosecute them.
• 19:36
  SPEAKER_01: And the Supreme Court said, that's okay.
• 19:38
  SPEAKER_01: They didn't need a warrant because everyone should know if you use the phone, you're dialing phone numbers.
• 19:43
  SPEAKER_01: It was on rotary phones at that point, right?
• 19:45
  SPEAKER_01: Those phone numbers have to go through the system at the phone company, they have to keep a record of it to bill you later.
• 19:50
  SPEAKER_01: Should be no surprise that that's like the company's business record now.
• 19:54
  SPEAKER_01: Now, the ACLU didn't think that was the right rule in the 1970s.
• 19:57
  SPEAKER_01: We thought it was under protective of privacy.
• 20:00
  SPEAKER_01: But regardless, that was the rule sort of through the pre-digital age.
• 20:03
  SPEAKER_01: Our argument to the Supreme Court, which a majority of the court agreed with in the Carpenter case, was that that just can't be the rule for certain kinds of highly sensitive digital age information that we basically can't avoid creating and that paints a picture of our lives that is so much more revealing and detailed than anything that came before.
• 20:22
  SPEAKER_01: And cell phone location information is really like the, in some ways, the paradigmatic example of that, right?
• 20:27
  SPEAKER_01: We're not really opting in in any meaningful way, right?
• 20:30
  SPEAKER_01: Like in order to participate in American society in the 2020s and beyond, you need a cell phone uh for family life, for school, for emergencies, for work, for any number of things.
• 20:44
  SPEAKER_01: Once you have a cell phone, unless you put it into airplane mode and make it just like an expensive paperweight, the phone company is going to know where you are.
• 20:51
  SPEAKER_01: They're gathering that location information.
• 20:52
  SPEAKER_01: So you can't avoid that.
• 20:54
  SPEAKER_01: And once that location information exists, it tells everything about you, everywhere you go over time, who you're near, who you're spending time with to by comparing different people's location information.
• 21:04
  SPEAKER_01: That and the Supreme Court reason that that's so so sensitive that it needs the protection of a warrant requirement.
• 21:10
  SPEAKER_01: We should have to go to a judge first.
• 21:12
  SPEAKER_01: Um, so that's important for location information, but it's also important because, of course, there are lots of other kinds of really sensitive stuff that lives on the servers or companies now, the contents of all of our emails or our text messages, you know, in in ages past, right, in previous generations, your correspondence like lived in your desk drawer, maybe, right?
• 21:34
  SPEAKER_01: You would have copies of letters that you had like in your house.
• 21:37
  SPEAKER_01: And of course, the government wants to come in your house.
• 21:39
  SPEAKER_01: We've always known that they have to go get a warrant.
• 21:41
  SPEAKER_01: But now we're in an age where all of your correspondence is actually sitting on a server of a company you don't control, and without legal protection, it's incredibly vulnerable.
• 21:50
  SPEAKER_01: Medical information from apps that we have that are measuring all kinds of things about our bodies heart rate, fertility status, numbers of other things.
• 22:00
  SPEAKER_01: Other kinds of sensitive communications are photos that we store online, family photos, intimate photos, etcetera.
• 22:06
  SPEAKER_01: All of that stuff, if we had lost the carpenter case, would potentially have been open to the government demanding access without going to a judge first, and that would have been very dangerous for privacy.
• 22:17
  SPEAKER_00: So we've also mentioned a little bit about facial recognition and how it can often get it wrong.
• 22:23
  SPEAKER_00: There's also proof that it gets it wrong more often on faces of color.
• 22:28
  SPEAKER_00: What does that mean in practice when police are using these tools to make arrests?
• 22:35
  SPEAKER_01: Yeah, so this is technology that is now widely used in American policing.
• 22:39
  SPEAKER_01: So face recognition technology is uh it's a form of an algorithm, sometimes called an AI algorithm, although hard to know what AI really means in any of these contexts.
• 22:48
  SPEAKER_01: It is designed to be able to ingest a photo of somebody's face who the government or the user doesn't know the identity of, and try to find potential matches in some matching database.
• 22:59
  SPEAKER_01: When police are using it, often they are trying to compare the input photo of the suspect that they're trying to identify to a database of mugshots, right, arrest photos, or sometimes state driver's license to state ID photos, or sometimes even bigger databases of photos that are taken from the internet.
• 23:18
  SPEAKER_01: Uh face recognition algorithms don't, the makers of them don't even purport that they can get it right all the time, right?
• 23:26
  SPEAKER_01: They're sort of a best guess, an algorithmic best guess about who in that database, which of the faces in that database, seem most similar to the face that's trying to be identified, the input photo.
• 23:37
  SPEAKER_01: So no matter what, this technology sometimes is going to get it wrong for various reasons that I can talk about.
• 23:44
  SPEAKER_01: But what test after test after test has shown is that it actually gets it wrong more often with darker skinned people, people of color, as well as with women and younger people and much older people.
• 23:57
  SPEAKER_01: And that's for a few reasons.
• 23:58
  SPEAKER_01: It has some to do with the way the databases that train the algorithms are structured, like who what faces are used to train these algorithms before they're actually ready for use.
• 24:08
  SPEAKER_01: It has something to do with the color, contrast, and brightness settings of digital photography and the ways in which that represents lighter skin and darker skin faces.
• 24:18
  SPEAKER_01: And there may be other factors in the technology that we actually don't understand yet, can't account for.
• 24:22
  SPEAKER_01: But what that means is in really high risk, high impact uses like policing, when the technology gets it wrong, you have this obvious risk that police are going to take action against the wrong person.
• 24:37
  SPEAKER_01: And we have now seen that at least a dozen times across the country where police actually arrest somebody who had nothing to do with the crime under investigation, a wrongful arrest of an innocent person because police rely on an incorrect result from this technology.
• 24:52
  SPEAKER_01: But that terrible effect on someone's life, right?
• 24:55
  SPEAKER_01: People's lives are really turned upside down when they're arrested, right?
• 24:58
  SPEAKER_01: Taken away from family, can't go to their job, lose livelihood.
• 25:02
  SPEAKER_01: There was recent reporting about a woman who was held in in jail for six months on a charge she had nothing to do with and literally lost her house and her job because she was in jail.
• 25:10
  SPEAKER_01: But those impacts don't fall equally, right?
• 25:13
  SPEAKER_01: Everybody is at risk, but the people who are at most risk are people of color, black people.
• 25:19
  SPEAKER_01: And it's no surprise that the strong majority of the cases we know about where this has happened, in fact, have involved wrongful arrest of black people.
• 25:26
  SPEAKER_01: That's a disparity that should be intolerable in this country, but it's also a disparity that builds on top of a long history of racism and inequity in the policing system.
• 25:36
  SPEAKER_01: And so it's it's in some senses yet another thumb on the scale of inequity that puts people from certain communities at much greater risk of harm.
• 25:49
  SPEAKER_00: So what might be one of the biggest misconceptions people have about surveillance?
• 25:54
  SPEAKER_00: What do people get completely wrong about who is watching them and why it actually matters?
• 26:01
  SPEAKER_01: You know, something that I and colleagues who do this work hear a lot is people asking, well, you know, if if I haven't done anything wrong, what do I have to hide?
• 26:09
  SPEAKER_01: You know, like this is really surely this is just being used to find the bad guys.
• 26:13
  SPEAKER_01: What do I have to hide?
• 26:14
  SPEAKER_01: And I think there are a couple ways to answer that question.
• 26:19
  SPEAKER_01: One way is we all have something to hide.
• 26:21
  SPEAKER_01: Like the premise is just obviously silly.
• 26:24
  SPEAKER_01: That doesn't mean we've all committed a felony, although many of us have broken the law, right?
• 26:29
  SPEAKER_01: There are so many laws that we can break, whether it's you know minor traffic infractions, whether it's jaywalking, crossing the street, you know, with a with a red signal.
• 26:38
  SPEAKER_01: There are lots of you know financial regulations that are very easy to run afoul of, even though you don't mean to.
• 26:46
  SPEAKER_01: So sometimes you actually have broken the law.
• 26:48
  SPEAKER_01: But but beyond that, we all have parts of our lives that we want to be private.
• 26:54
  SPEAKER_01: And different people draw those lines in different places.
• 26:56
  SPEAKER_01: You know, some people decide that they want to post a ton of stuff on social media about some very intimate things, but I guarantee you they're not posting everything.
• 27:07
  SPEAKER_01: Even even folks who have a huge social media presence are making contextual decisions about what they actually want to keep private and what they don't.
• 27:15
  SPEAKER_01: And then there are many of us who are not posting everything online, who are making really fine-grained decisions about what we want to share with who.
• 27:22
  SPEAKER_01: And we should not really, I think, be very comfortable with the idea that a government agent can get access to any and all of that at their whim, on a mere suspicion, without good reason, for no real suspicion at all, to harass, to just dig just in case.
• 27:37
  SPEAKER_01: We in order to just kind of maintain basic human dignity and the ability to interact with each other in a free society, we all need to be able to retreat to a place of privacy for some details about ourselves that we don't want to broadcast.
• 27:51
  SPEAKER_01: If that's not convincing, and for some people, it isn't.
• 27:54
  SPEAKER_01: I think there's just a there's an even more fundamental decision we as a society have to make about what kind of society we want to live in.
• 28:02
  SPEAKER_01: Uh and part of that is recognizing that the harms of surveillance and the focus of surveillance also doesn't fall evenly.
• 28:10
  SPEAKER_01: And part of the reason that privacy protections are important, strong legal privacy protections, is that they protect the most vulnerable members of society, right?
• 28:21
  SPEAKER_01: We have seen across American history over and over that government abuses run most quickly against some of the most vulnerable.
• 28:30
  SPEAKER_01: That could be political dissidents in a moment of great kind of political conflict and disagreement.
• 28:36
  SPEAKER_01: It can be certainly members of communities of color and other communities that don't have as much political power or are subject to discrimination, uh, whether that is sexual minorities, lack or Latinx communities, certainly immigrants, members of immigrant communities, intellectuals who are pushing a new interpretation of something that someone in power thinks is dangerous, consumer advocates who are who are pushing against corporate abuses, you name it, those are the kinds of folks who are going to be subject to the worst surveillance.
• 29:06
  SPEAKER_01: And even if somebody thinks they have nothing to hide, I think we should be living in a society where the government can't just decide for itself who it wants to dig into the most sensitive details of.
• 29:21
  SPEAKER_01: One of the most galling parts of government abuses during the civil rights movement was the illegal surveillance of Martin Luther King Jr.
• 29:30
  SPEAKER_01: by the federal government, by the FBI, in order to try to be able to blackmail and embarrass him, right?
• 29:35
  SPEAKER_01: Finding embarrassing personal details of his life that the government had no business knowing, but that the government thought they could leverage to make him shut up and stop his advocacy.
• 29:45
  SPEAKER_01: A really galling thing to have to contend with.
• 29:48
  SPEAKER_00: Those are some hard truths.
• 29:50
  SPEAKER_00: So looking at the next 10 to 20 years in the future, what does the world look like for students just starting out if nothing changes?
• 29:59
  SPEAKER_00: And what could change if the right laws get built?
• 30:03
  SPEAKER_01: Yeah, so you know, technology, it's sort of a truism to say technology is always changing.
• 30:08
  SPEAKER_01: The nature of the threats to privacy and the capabilities of technology are going to keep evolving over time.
• 30:15
  SPEAKER_01: The nightmare scenario is that we as a society just let ourselves kind of sleepwalk into a situation where every part of our lives is digitally registered and tracked and is available at kind of no no cost and with no safeguards to every corporation and government agent who wants to tap into it.
• 30:37
  SPEAKER_01: Um that is not the future that we need to walk into.
• 30:41
  SPEAKER_01: And there's a lot of work going on now to avoid that future.
• 30:45
  SPEAKER_01: We can do a few, you know, a few things to avoid that future.
• 30:49
  SPEAKER_01: One, of course, is to make our voices heard to lawmakers and the people setting policy, whether that's sending emails and letters, right, showing up at forums, or even working, you know, building coalitions at the local level, or even in our in schools, right, to advocate for policies that protect us, right?
• 31:08
  SPEAKER_01: For example, ban on use of face recognition technology in schools.
• 31:12
  SPEAKER_01: It's something we've started to see in school districts across the country as these companies that make the technology try to convince schools that this is the newest best way to keep us safe, quote unquote safe, without really explaining, connecting the dots between, you know, surveilling every student in the school and how that will keep us safe.
• 31:29
  SPEAKER_01: But there are now school districts that have decided, after city councils or school boards or state legislatures have considered it, that they're not going to get into that business, right?
• 31:38
  SPEAKER_01: Because it's both unnecessary and it actually puts students at risk because, in part of the way this technology misidentifies people, misidentifies black and brown students particularly, and subjects people to just pervasive tracking that that's really corrosive.
• 31:53
  SPEAKER_01: Uh so we can make a difference.
• 31:55
  SPEAKER_01: We can also vote with our dollars, and sometimes there are choices to be made between different companies out there that are offering similar technology, some of which may have better privacy protections than others.
• 32:06
  SPEAKER_01: When I send text messages to people, I try to use an app called Signal as much as I can.
• 32:12
  SPEAKER_01: Signal is a free messaging app that has really good privacy protections.
• 32:16
  SPEAKER_01: It's encrypted end-to-end, which means that anybody who's able to kind of intercept that message in the middle isn't going to be able to read it.
• 32:24
  SPEAKER_01: And it's a nonprofit that is really committed to saving as little information in its servers as possible about people who are using it and what our messages look like back and forth.
• 32:33
  SPEAKER_01: And so if the government goes to signal to seek information, there's very little that they can turn over because they just don't have it by design.
• 32:41
  SPEAKER_01: So thinking about making as smart decisions as we can about what technologies we use is also important.
• 32:46
  SPEAKER_01: And that hopefully will kind of move the needle on what protections companies build in.
• 32:51
  SPEAKER_01: Of course, that's easier said than done, also in an age when a very small number of technology companies are offering the products that we want to be on, right?
• 33:00
  SPEAKER_01: The Facebooks and the Meta, Googles and X, etc.
• 33:03
  SPEAKER_01: They have these huge user bases, which makes it very hard to go to another company.
• 33:08
  SPEAKER_01: But we should be demanding better protections from them too.
• 33:12
  SPEAKER_00: For our listeners who are deciding right now what to study, what would you tell a student who wants to work on privacy and civil liberties?
• 33:22
  SPEAKER_00: What careers exist now that didn't exist 10 years ago because of AI?
• 33:27
  SPEAKER_00: And what do you think will change in the next 10 to 20 years?
• 33:34
  SPEAKER_01: Yeah, so I obviously think that like the the law is a fascinating field, and there are opportunities to pursue a law degree and try to get involved that way as a litigator or a policy advocate.
• 33:46
  SPEAKER_01: There are other ways to, you know, be a an organizer or a political activist around these issues that don't require a law degree or even any advanced degree.
• 33:55
  SPEAKER_01: That's one path.
• 33:56
  SPEAKER_01: There are also then technologists and computer scientists who are working on these questions from a technical side and also doing advocacy.
• 34:04
  SPEAKER_01: Sometimes there are technical ways to build in privacy protections that secure us from a whole bunch of threats, right?
• 34:10
  SPEAKER_01: So it's it's not just surveillance, but it's also things like hacking and data breaches.
• 34:14
  SPEAKER_01: And sometimes the same technological solutions can protect us across the board.
• 34:19
  SPEAKER_01: I was talking about signal and end-to-end encrypted messages before.
• 34:22
  SPEAKER_01: That's useful to protect against surveillance, whether it's from the US government or some other government around the world, but it's also useful to help protect against some extortionist or hacker or someone else who's trying to steal a message to impersonate you or to coerce you into paying them in Bitcoin or whatever it is.
• 34:40
  SPEAKER_01: Those same protections protect security too.
• 34:44
  SPEAKER_01: And there are many really smart people with computer science degrees and engineering backgrounds who are working on those protections at a technical level.
• 34:54
  SPEAKER_01: It's hard to know what the world of technology is going to look like in 20 years.
• 34:58
  SPEAKER_01: We're in a moment now where everybody is talking about AI in very serious and and often very scary ways.
• 35:04
  SPEAKER_01: And it's hard to know whether all the things that people call AI are really going to ever do the things that they are trumpeted to do.
• 35:14
  SPEAKER_01: Some of them may and some of them may not.
• 35:16
  SPEAKER_01: How disruptive these technologies are going to be to our careers, to our to privacy, to our lives in general is, I think, very hard to predict.
• 35:25
  SPEAKER_01: And I think it's critical that a lot of people, just us ordinary people, are making our voices heard on the urgency of being prepared for whatever those futures look like now through stronger privacy laws, uh, through security requirements, and other kinds of legal and policy protections that can hopefully try to anticipate some of the things that might come to pass and avoid the worst possible futures.
• 35:52
  SPEAKER_00: What's an unexpected skill that's been crucial to your work at the ACLU?
• 35:57
  SPEAKER_00: Something that would genuinely surprise people who picture what a civil liberties attorney does.
• 36:14
  SPEAKER_01: Most of my work is legal research, it's writing, it's talking to people.
• 36:20
  SPEAKER_01: So for me, a good skill is that I can basically keep my butt in a chair for hours at a time and just like keep reading, right?
• 36:28
  SPEAKER_01: Reading a lot.
• 36:29
  SPEAKER_01: And sometimes, more often than not, it's very interesting.
• 36:32
  SPEAKER_01: Sometimes it's really not very interesting, but you kind of have to get through it to do the work.
• 36:36
  SPEAKER_01: What's interesting in the larger scope of things, certainly, right?
• 36:38
  SPEAKER_01: These technologies are always changing.
• 36:40
  SPEAKER_01: But I think the ability to try to filter out some of the distraction, which is increasingly hard because of these technologies, and be able to sort of focus in for long periods of time is is pretty crucial in getting the work done.
• 36:53
  SPEAKER_00: So before we wrap up, are there any books, podcasts, or other media you would suggest for students?
• 37:03
  SPEAKER_01: Yeah, so one great resource is a blog on the ACLU's website that we call Free Future, that's maintained by a colleague of mine named Jay Stanley, includes posts weekly or more about a whole wide range of issues of privacy in the digital age.
• 37:17
  SPEAKER_01: Policy questions, technology questions.
• 37:19
  SPEAKER_01: It's really fascinating reading and really gets at some of the most pressing, cutting edge questions that are coming down the pike.
• 37:26
  SPEAKER_01: So I would encourage folks to start there.
• 37:30
  SPEAKER_00: Well, thank you so much for joining us today on Paths of Curiosity.
• 37:35
  SPEAKER_01: Thank you so much.
• 37:36
  SPEAKER_01: Really enjoyed talking to you.
• 37:40
  SPEAKER_00: So next time you walk out of the door with your phone, think about what you share today and ask yourself who might be watching and whether they should need a warrant to do it.
• 37:52
  SPEAKER_00: Like always, you can find more episodes and free resources at paths of curiosity.com.
• 37:59
  SPEAKER_00: Everything is free, no account needed.
• 38:03
  SPEAKER_00: This has been Paths of Curiosity in an AI world.
• 38:06
  SPEAKER_00: Explore careers through the lens of AI.
• 38:09
  SPEAKER_00: Until then, stay curious.