Michael Chertoff on the Growing Threats to Our Privacy Today

Hari Sreenivasan sits down with former US Secretary of Homeland Security Michael Chertoff, who authored the USA Patriot Act which led to a massive expansion of government surveillance. He joins the program to discuss growing threats to our privacy today.

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CHRISTIANE AMANPOUR: Michael Chertoff was President George W. Bush’s Homeland Security Secretary. But before that, he made a name for himself coauthoring the USA Patriot Act in the wake of the 9/11 attacks. The act famously and massively expanded government surveillance. It allowed the indefinite detention of immigrants, something which the Supreme Court later struck down. Now, Chertoff is discussing the growing threats to privacy and he sat down with our Hari Sreenivasan. And, yes they did also touch on that border wall.

HARI SREENIVASAN CONTRIBUTOR: Mike Chertoff, let’s start with some things that are in the news now and then kind of abstract up. First, immigration. You were the second head of Homeland Security and served under President Bush. How important is a physical barrier that’s at the center of all this?

MICHAEL CHERTOFF, FORMER U.S. SECRETARY OF HOMELAND SECURITY: It’s a very small piece of what you want. When we were in office, I think we’ve built about 650 miles of barriers along certain areas where the distance between the border and let’s say a major town or higher was fairly short. And therefore, you wouldn’t be able to intercept people if they crossed the border. You could probably build another 50 or so miles and find some useful places forward but it’s only a very small part of what you want. What you really need is technology, border patrol personnel, detention facilities for people who are going to be deported, and it has to be integrated into a system. So the idea that you want a wall is a mischaracterization of what the real requirement is.

SREENIVASAN: Is it worth shutting the government over? Is it worth shutting the government down over?

CHERTOFF: It’s certainly not worth shutting the government over. And in a sense, the disappointing thing is that if you actually got the professionals together, they could map out pretty clearly for you given what they know exactly where you want physical barriers, where you want technology, where you want drones. And that would be an intelligent way to spend the money. Ironically, when there’s complaining about drugs coming into the country, the vast majority of that comes through the ports of entry. So if you had equipment at the ports of entry that would allow you better visibility into what is concealed in an automobile or truck, that would do much more to reduce the implication of drugs than barriers in the middle of the desert. Barriers really discourage a certain kind of casual crosser. It doesn’t discourage someone who is investing large amounts of money to move very valuable drugs. And they have — they want volume and they’re going to basically try to use existing transportation systems to come through ports of entry.

SREENIVASAN: Is it a national emergency?

CHERTOFF: I wouldn’t say it’s a national emergency. I mean obviously, border control is an important federal objective. But actually, the rate of crossing, although it’s fluctuated, over time has generally gone down. What’s really driving it now is largely conditions in parts of Central America where you have not only economic issues but you have gang violence, you have lack of rule of law, and people are fleeing because they’re afraid for their lives. The best way to stop that is to work with the Central American governments to reinstitute the rule of law to build the economy and then people will be happy to stay in their homes.

SREENIVASAN: Another topic that’s been in the news recently — and the Department of Justice just laid out indictments against the Chinese telecom company Huawei. And the United States has also been trying to pressure or leverage countries around the world to not use equipment from this telecom company as basically the world upgrades to 5G. What is it about why is that important?

CHERTOFF: Well, this is actually not new. The issue of Chinese technology as potentially creating an opportunity for the Chinese to commit acts of espionage or even acts of sabotage has been discussed among security people for the last 10 years or so. What we saw just earlier this year was an indictment of Huawei for stealing technological secrets from T-Mobile. If that’s happened in the past, it will continue to happen. But beyond that, I think there’s a concern that you are potentially putting the next generation of critical technology in the hands of a country which may be an adversary in certain respects. And I’m chairman of the Board of Freedom House. We published a report a couple of months ago called “Freedom on the Net”. And in the report, we detail how the Chinese are using the exports of I.T. technology to embed themselves around the world in Asia and Africa. And they’re actually teaching some of the local governments there how to use technology to better control the populace and to suppress free speech. So we’re in a situation now where if you have Chinese companies that are in critical nodes around the world, you’re essentially perhaps enabling the export of authoritarianism to parts of the world that are free.

SREENIVASAN: So how does the West counter that? I mean is there a way that you can get the world to agree on the rules of the road?

CHERTOFF: Well, I do think there are things we can do, even using a multi- stakeholder approach that are underway right now. For example, I think many of the Western countries do you have a more or less common set of values and could reasonably easily reach agreements on some of the things we’re talking about. And because of the fact that these countries are still collectively by far the most powerful economic actors on the globe, in the end, if we do have an agreed set of values, an agreed approach, I think that can drive the Chinese to accommodate to that as well. I’m on a global commission for stability in cyberspace now which has drawn people from all over the world who are focused on cyber issues to try to come up with some norms that could be globally accepted to have an open Internet, free Internet, and an Internet that is not fragmented but rather is truly global in its activity.

SREENIVASAN: You put out a book recently talking about the data explosion. And you have kind of a simple idea and there are data 1.0, 2.0, 3.0. Break that down for the audience.

CHERTOFF: I wrote the book because I thought people didn’t really understand the manner in which data is being collected and how it is being used now and how it can be used. And it will transform the way we live. So I look back historically. I mean if you look at most of human history, data was basically what you said, what you heard, what was written down, maybe it was published. And we were mainly concerned about protecting our privacy in the sense of our property. There was the expression, you know, every man’s home is his castle. And now it’s anachronistic but this goes back a few hundred years. And the idea was your privacy is about your property. No one can enter to your house without a warrant. When you got photography and telephony, all of a sudden property was not the issue anymore. It was confidentiality. Could I keep my conversations private? Could I keep my image private? And therefore, the law started to change, to recognize we have to move away from the focus on property and now we have to focus on confidentiality. My point now is given the amount of data that is being generated, not only what we voluntarily generate but what is generated about us. And the fact that it is now stored indefinitely, it could be published all over the world. Simply trying to keep things hidden or secret, that ship has sailed. Now, we need to talk about who controls the data. What is your right even when your data is collected to be able to say yes or no to how it’s being used?

SREENIVASAN: So really positioning it as autonomy?

CHERTOFF: Exactly. It’s about freedom and going back to China. And China, they’re now working on what they call a “social credit score” where everything that you do would be compiled and you essentially get a rating as to whether you’re a “good citizen” or a “bad citizen”. And if you’re good, you get preference in all kinds of things like jobs and education. And if not, you could be shut out of things. Now, imagine that in a western society and it might even be the private sector where your ability to get a job or get insurance or find a place to live would be affected by whether an algorithm looks at everything you do, that’s recorded in some form or fashion is data and makes a judgment about whether you’re a desirable or an undesirable person.

SREENIVASAN: I mean isn’t that starting to happen already? If a health insurer had access to my grocery shopping list, they could change my rates. It’s being really healthy and maybe, you know, input equals output and looks like he’s got a gym membership. He’s been logging in five times a week, OK. Let’s — you know, he’s not going to die right away versus bags of M&M’s, lots of Netflix binging, I don’t know.

CHERTOFF: Well, and that’s happening now. I mean even in the time since I published the book about six months ago and now, there are more stories about insurance companies saying we want to see your Fit Bit, how much exercise you’re getting. And they’re also looking at things like exactly what food you eat, did you go to a restaurant, what did you get a restaurant, how is your sleep pattern. Imagine all of this being collected. And pretty soon, your freedom to decide what you want to do would always be subject to a nagging fear that you’re going to be punished. There was a BBC show called “Black Mirror” that was on that actually took this, I’d like to say to an extreme but not that extreme, about a world in which literally everybody is being raided up and down minute by minute and it makes Nineteen Eighty-Four, George Orwell’s dystopian novel, look like a Kindergarten dream.

SREENIVASAN: Look, some of those who can watch this conversation say this is the guy who helped write the Patriot Act. At the time, you were not in that data climate that we’re in today, right? There wasn’t Amazon nearly as powerful and all-knowing as it is. What is the balance between giving the government the opportunity to chase down bad guys, get as much information, prevent attacks, et cetera, and that sense of autonomy that you’re talking about where I still feel like I have some level of control over what I choose to share with especially the body governing me?

CHERTOFF: Well, we were right to be concerned about the government as well as the private sector. What’s interesting is that the government operates under much more constraint than the private sector. The government doesn’t even dream of collecting the volume of information that is collected in the private sector. And before the government uses it, there are all kinds of gates they have to go through, at least in the United States. I mean other countries may be obviously different. So, for example, to collect content of information that’s being e-mailed or being discussed over the telephone, you need a warrant. And now there’s a move afoot I think correctly to require a warrant even for older e-mails, not just for current e-mails. To use the information, you have to go through various kinds of hoops to get permission. So I do think that the government, although you can always argue about what the borders ought to be, does operate under a regime where they are controlled.

SREENIVASAN: There have been so many examples where even if those permission systems have existed, there’s been such a lack of transparency that it shakes our foundational trust in the government, saying, hey, if the NSA has this program, whether they were authorized to do it or not, it seems pretty shady and it’s just one more thing I have to worry about

CHERTOFF: Well, I agree with you. I mean I think transparency would be important. And one of the mistakes I think the government made was for a period of time, for example, the court opinions, the courts and supervisors surveillance were kept classified. After Snowden did his release of classified information, the government started to declassify the opinions. I think what was put out, A, was not particularly damaging to national security. But for the first time, people could see, wow, the judges are really digging into this and they could see the reasoning of the court. And frankly, I think the government would have been better served had they put that out before any of the Snowden business happened. And so I agree, I think a lesson for the government is there is a cost involved in secrecy and you always have to ask yourself is this secrecy really necessary or would we actually get more value by at least, in a generalized way, making public what we’re doing and what the rules are.

SREENIVASAN: A core question here is the Fourth Amendment, right? What is unreasonable search and seizure in this new era that we’re going into? If my heart rate information and my sleep habits sitting in the servers of a third party, do I have control of that information? And who should be able to transact that?

CHERTOFF: I think that’s exactly the issue we’re facing now. We’re creating so many different kinds of data. We need to understand who governs it and what are the rules that apply to the issue of access. And that’s already beginning to change. I’ll give you an example. Years ago — many years ago, a doctrine of border searchers was promulgated by the Supreme Court. When you cross the U.S. border and come into the U.S., the border officials are able to search anything you’re carried with you because you have a limit to what you can import into the U.S. And that was applied to laptops and other repositories of data because you were bringing it into the country. Now, very recently, the issue was originally what do you do, for example, with a smartphone which is connected to the cloud? So if you are able to open up the phone and search the phone, you’re not only getting what’s on the phone that’s being brought into the country. You’re getting what may already be sitting in Amazon servers somewhere in the United States. It would be as if I searched you when you came into the country, took your house key, and then went to your house and searched your house. I think the rule has to be different there. And the Supreme Court has already begun to signal that they are revisiting the rules, for example, about searches to take account of the sheer volume of material that is now available on a phone or a laptop.

SREENIVASAN: Finally, I want to ask also about upcoming elections. There’s kind of two levels. Are state systems in the United States secure enough?

CHERTOFF: Two levels to this in the sense that there’s the infrastructure. That is the voting machines, the voter registration rolls, the tabulation. I think it’s very uneven. Congress is trying to get more money to the States. The Department of Homeland Security is working with some of the states to upgrade their security of the infrastructure. And there are some things that I’ve been involved with the Commission on Election Integrity where we’re trying to promote that. The larger issue though is what they call “Information operations”. It’s used by foreign governments like the Russians or even frankly by people in our own country of tools that are designed to manipulate public opinion and create disunity and even suppress voting by propagating false stories or magnifying or exaggerating disturbing stories, all in order to play with emotions. There are some things you can do to mitigate that particularly when you have a foreign government involved. But again, some of this is going to require the hard work of educating people about how to be critical thinkers. And this is about to get more challenging because we’re now on the verge of what they call “Deep fakes” which is the ability to create audio and video that is completely fabricated but that makes it seem like a real person is saying something. And if that starts to get used against candidates, for example, you’re going to really have stress on the notion of determining what the truth is.

SREENIVASAN: What happens to our profession?

CHERTOFF: Well, a big piece of this is actually going to put an onus on journalism. How do you measure and detect whether something is false? How do you make sure you don’t get caught up in the —

SREENIVASAN: Someone else’s agenda?

CHERTOFF: Right, the competition for clicks which actually drives the behavior that you’re trying to fight against. And you know reinjecting an element of professionalism and judgment in the way editorial decisions are made I think is a really important part of preserving our democracy.

SREENIVASAN: Michael Chertoff, thanks so much.

CHERTOFF: Good to be on.

About This Episode EXPAND

Christiane Amanpour speaks with Dee Margo, the mayor of El Paso, TX, to discuss the reality of a border wall; and Mary Bauer & Ed Lavandera about the humanitarian crisis caused by child separations at the border. Hari Sreenivasan speaks with former U.S. Secretary of Homeland Security Michael Chertoff about the growing threat to our privacy today.