Pentagon, DEA and Private Companies Conspiring to Track Everything You Do

Guess what the malware software is really for?

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Yet another report has surfaced describing how tools created by the companies selling software that can damage and hack into people’s computers are being deployed by U.S. security services. While the coverage surrounding this story focuses primarily on federal agencies it’s important to step back for a moment and view the big picture. In particular, looking at who builds, operates, and profits from mass surveillance technology offers insight into the nature of the global panopticon.

A report published by Privacy International as well as an article posted by Vice Motherboard clearly show that both the DEA and the United States Army have long-standing relationships with Hacking Team, an Italian company that’s notorious for selling malware to any number of unsavory characters.

Federal records indicate that the DEA and Army purchased Hacking Team’sRemote Control System (RCS) package. RCS is a rootkit, a software backdoor with lots of bells and whistles. It’s a product that facilitates a covert foothold on infected machines so intruders can quietly make off with sensitive data. The aforementioned sensitive data includes encryption keys. In fact, Hacking Team has an RCS brochure that tells potential customers: “What you need is a way to bypass encryption, collect relevant data out of any device, and keep monitoring your targets wherever they are, even outside your monitoring domain.” Note: Readers interested in nitty-gritty details about RCS can check out the Manuals online.

It’s public knowledge that other federal agencies like the FBI and the CIA have become adept at foiling encryption. Yet this kind of subversion doesn’t necessarily bother high tech luminaries like Bruce Schneier, who believe that spying is “perfectly reasonable” as long as it’s targeted. Ditto that for Ed Snowden. Schneier and Snowden maintain that covert ops, shrouded by layers of official secrecy, are somehow compatible with democracy just so long as they’re narrow in scope.

But here’s the catch: RCS is designed and marketed as a means for mass collection. It violates the targeted surveillance condition. Specifically, a Hacking Team RCS brochure proudly states:

“’Remote Control System’ can monitor from a few and up to hundreds of thousands of targets. The whole system can be managed by a single easy to use interface that simplifies day by day investigation activities.”

Does this sound like a product built for targeted collection?

So there you have it. Subverting encryption en masse compliments of Hacking Team. The fact that there’s an entire industry of companies just like this should give one pause as there are unsettling ramifications regarding the specter of totalitarian control.

Corporate America is Mass Surveillance

Throughout the Snowden affair there’s a theme that recurs. It appeared recently in a foreword written by Glenn Greenwald for Tom Engelhardt’s bookShadow Government:

“I really don’t think there’s any more important battle today than combating the surveillance state [my emphasis]. Ultimately, the thing that matters most is that the rights that we know we have as human beings are rights that we exercise.”

There’s a tendency to frame mass surveillance in terms of the state. As purely a result of government agencies like the CIA and NSA. The narrative preferred by the far right is one which focuses entirely on the government (the so-called “surveillance state”) as the sole culprit, completely ignoring the corporate factions that fundamentally shape political decision making.

American philosopher John Dewey once observed that “power today resides in control of the means of production, exchange, publicity, transportation and communication. Whoever owns them rules the life of the country,” even under the pretense of democratic structuresi.

There are some 1300 billionaires in the United States who can testify to thisfact. As can anyone following the developments around the secretive Trans-Pacific Partnership.

Dewey’s observation provides a conceptual basis for understanding how business interests drive the global surveillance apparatus. Mass surveillance is a corporate endeavor because the people who inevitably drive decisions are the same ones who control the resources. For example, the backbone of the internet itself consists of infrastructure run by Tier 1 providers like Verizon and Level 3 Communications. These companies are in a perfect position to track users and that’s exactly what they do.

Furthermore when spying is conducted it’s usually executed, in one form or another, by business interests. Approximately 70 percent of the national intelligence budget end up being channeled to defense contractors. Never mind that the private sector’s surveillance machinery dwarfs the NSA’s as spying on users is an integral part of high tech’s business model. Internet companies like Google operate their services by selling user information to the data brokers. The data broker industry, for example, generates almost $200 billion a year in revenue. That’s well over twice the entire 2014 U.S.intelligence budget.

From a historical vantage point it’s imperative to realize that high tech companies are essentially the offspring of the defense industry. This holds true even today as companies like Google are heavily linked with the Pentagon. For decades (going back to the days of Crypto AG) the private sector has collaborated heavily with the NSA’s in its campaign of mass subversion: the drive to insert hidden back doors and weaken encryption protocols across the board. Companies have instituted “design changes” that make computers and network devices “exploitable.” It’s also been revealed that companies like Microsoft have secret agreements with U.S. security services to provide information on unpublished vulnerabilities in exchange for special benefits like access to classified intelligence.

In a nutshell: contrary to talking points that depict hi-tech companies as our saviors, they’re more often accomplices if not outright perpetrators of mass surveillance. And you can bet that CEOs will devote significant resources towards public relations campaigns aimed at obscuring this truth.

A parting observation: the current emphasis on Constitutional freedom neglects the other pillar of the Constitution: equality. Concentrating intently on liberty while eschewing the complementary notion of equality leads to the sort of ugly practices that preceded the Civil War. In fact there are those who would argue that society is currently progressing towards something worse, a realityby the way that the financial elite are well aware of. When the public’s collective misery reaches a tipping point, and people begin to mobilize, the digital panopticon of the ruling class will be leveraged to preserve social control. They’ll do what they’ve always done, tirelessly work to maintain power and impose hierarchy.

NOTES:

i The Later Works of John Dewey, 1925-1953, Volume 9: 1933-1934, Essays, Reviews, Miscellany, and A Common Faith, Southern Illinois University Press, 2008, page 76.

 

Bill Blunden is the author of several books, includingThe Rootkit Arsenal” andBehold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex.” He is the lead investigator at Below Gotham Labs.

http://www.alternet.org/news-amp-politics/latest-outrageous-example-pentagon-dea-and-private-companies-conspiring-track?akid=13088.265072.W5QXWE&rd=1&src=newsletter1036073&t=19

Has Google Indexed Your Backup Drive?

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Depending on how you’ve configured the device, your backup drive may have been indexed by Google, making some seriously personal information freely available online to anyone who knows what they’re looking for. Using a few simple Google searches, CSO’s Steve Ragan discovered thousands of personal records and documents online, including sales receipts with credit card information and tax documents with social security numbers. In all cases, the files were exposed because someone used a misconfigured device acting as a personal cloud, or FTP (File Transfer Protocol) was enabled on their router.

Welcome to ‘Libertarian Island': Inside the Frightening Economic Dreams of Silicon Valley’s Super Rich

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Ayn Rand, Peter Thiel, Rand Paul (Credit: AP/Reuters/Fred Prouser/Charles Dharapak/Photo montage by Salon)

The idea that we are all in it together is foreign to the tech billionaires.

In the clever science fiction video game Bioshock, an Objectivist business magnate named Andrew Ryan (recognize those initials?) creates an underwater city, where the world’s elite members can flourish free from the controls of government. It is a utopian village that Ayn Rand and her hero John Galt would surely approve of, but unfortunately it ends up becoming a dystopian nightmare after class distinctions form (what a shocker) and technological innovation gets out of hand. It was a hell of a video game, for those of you into that kind of thing.

But I don’t bring up Bioshock to talk about video games. I bring it up because there is currently a similar movement happening in real life, and it is being funded by another rather eccentric businessman, the Paypal billionaire Peter Thiel. As some may already know, Thiel has teamed up with the grandson of libertarian icon Milton Friedman, Patri Friedman, to try and develop a “seastead,” or a permanent and autonomous dwelling at sea. Friedman formed the “Seasteading Institute” in 2008, and Thiel has donated more than a million dollars to fund its creation.

It is all very utopian, to say the least. But on the website, they claim a floating city could be just years away. The real trick is finding a proper location to build this twenty-first century atlantis. Currently, they are attempting to find a host nation that will allow the floating city somewhat close to land, for the calm waters and ability to easily travel to and from the seastead.

The project has been coined “libertarian island,” and it reveals a building movement within Silicon Valley; a sort of free market techno-capitalist faction that seems to come right out of Ayn Rand’s imagination. And as with all utopian ideologies, it is very appealing, especially when you live in a land where everything seems possible, with the proper technological advancements.

Tech billionaires like Thiel, Travis Kalanick and Marc Andressen, are leading the libertarian revolution in the land of computers, and it is not a surprising place for this laissez faire ideology to flourish. Silicon Valley is generally considered to have a laid back Californian culture, but behind all of the polite cordialities, there rests a necessary cutthroat attitude. A perfect example of this was Steve Jobs, who was so revered by the community, and much of the world, yet almost psychopathically merciless. The recent anti-trust case against the big tech companies like Google, Apple, and Intel, who colluded not to recruit each others employees, has even lead to speculation as to whether Jobs should be in jail today, if he were still alive.

So while Silicon Valley is no doubt a socially progressive place (i.e. gay marriage), if one looks past social beliefs, there is as much ruthlessness as you’d expect in any capitalist industry. Look at the offshore tax avoidance, the despicable overseas working conditions, the outright violations of privacy and illegal behavior. There is a very real arrogance within Silicon Valley that seems to care little about rules and regulations.

Libertarianism preaches a night-watchmen government that stays out of businesses way, and allows private industries to regulate themselves. It is a utopian ideology, as was communism, that has an almost religious-like faith in the free market, and an absolute distrust of any government. It is a perfect philosophy for a large corporation, like Apple, Google or Facebook. If we lived in an ideal libertarian society, these companies would not have to avoid taxes, because they would be non-existent, and they wouldn’t have to worry about annoying restrictions on privacy. In a libertarian society, these companies could regulate their own actions, and surely Google, with their famous “Don’t be evil” slogan, believes in corporate altruism.

In the Valley, innovation and entrepreneurship is everything, so a blind faith in the market is hardly shocking. And last year one of the leading libertarians, Rand Paul, flew out to San Francisco to speak at the Lincoln Labs Reboot Conference, held to “create and support a community of like-minded individuals who desire to advance liberty in the public square with the use of technology.” Paul said at the conference, “use your ingenuity, use your big head to think of solutions the marketplace can figure out, that the idiots and trolls in Washington will never come up with,” surely earning laughs and pats on the back.

Rand Paul has had one on one meetings with Mark Zuckerberg, and the floating island billionaire himself, Peter Thiel. The founder and CEO of Uber, Travis Kalanick is another noted libertarian, who used to have the cover of Ayn Rand’s “The Fountainhead” as his twitter icon. Kalanick runs Uber just as a devoted follower of Ayn Rand would, continuously fighting regulators and living by what writer Paul Carr has called the “cult of disruption.” Carr nicely summarizes the philosophy of this cult: “In a digitally connected age, there’s absolutely no need for public carriage laws (or hotel laws, or food safety laws, or… or…) because the market will quickly move to drive out bad actors. If an Uber driver behaves badly, his low star rating will soon push him out of business.”

So basically, with the internet, regulation has become nothing more than a outdated relic of the past, and today consumers truly have the power to make corporations behave by speaking out on social media, or providing negative ratings on Yelp, or filing a petition on Change.com, etc. It is the same old libertarian argument wrapped up in a new millennial cloak, that corporations will act ethically because if they don’t, consumers will go elsewhere.

As usual, it leaves out important realities that don’t sit well with the self-regulation myth. These realities include the irrationality and apathy of consumers, the lack of information available to consumers, and the overall secretive nature of corporations. The problem with self-regulation is that, consumers do not know what goes on at a corporation behind closed doors, so how would they force a company to act ethically if they are not aware of their misdeeds. Had the government not gone after Google for privacy violations, users would have never known. Google and other tech companies have a constant crave for innovation over everything, and bypass things like privacy when they get in its way. Would they control themselves had the government not stepped in?

Another important truth is that many consumers usually continue willfully using products, even if a company has done something that is contrary to their moral beliefs. It is a sort of hypocritical selfishness where one puts comfort or convenience over ethics. Just look at Apple: everyone is aware of the appalling factory conditions and the tax avoidance, but that doesn’t stop many people from buying the latest iPhone.

When looking at other industries, like oil and gas, the myth of self-regulation is even more comical. The famous oil billionaire Koch brothers, who are also fanatic libertarians,  have knowingly avoided regulations, and have hurt people in the process. During the nineties, they were particularly careless, and the bottom line influenced every decision. When pipelines were in bad shape, they would determine whether fixing them or leaving them, and possibly paying off a lawsuit in the future, was more profitable. In 1996, a pipeline that had been given the second treatment leaked butane into the air, and killed two teenagers who ignited it with the spark of their car ignition.

Even if the consumers were completely rational and had access to all information, would it really be worth it to wait for companies to abide? For example, many libertarians argue that legislation that made seat belts and airbags mandatory in all vehicles was pointless, because the free market would have eventually brought them anyways. But even if this were true, how long would it take, and how many lives could this inaction have caused?

The most damning evidence against the myth of self regulation may very well be history. Before government regulatory agencies like the FDA came around, the safety of workers and consumers were both constantly at stake, as muckrakers like Upton Sinclair described so vividly. More recently, the lack of regulation in the financial industry, particularly in derivatives, contributed to one of the worst economic crises in history, and hurt many people in the process.

Libertarians are uninterested in these realities, and believe that all government intervention is useless and stifles innovation, and it is the “cult of innovation” that makes the libertarian philosophy particularly popular in the technology obsessed Silicon Valley. In the their world, innovation is more important than privacy or safety, and the best and brightest should not have to play by the rules.

While overall, Silicon Valley still supports the Democrats over Republicans, it would not be surprising to see a shift in the coming years. The libertarian philosophy is very attractive to those who worship technology and entrepreneurship, which is nearly all of the techies. And with millions of potential campaign dollars coming out of the valley, it could very well be a problematic territory for liberals in the future.

 

http://www.alternet.org/news-amp-politics/welcome-libertarian-island-inside-frightening-economic-dreams-silicon-valleys?akid=12898.265072._0WWy9&rd=1&src=newsletter1033376&t=9

Big Data Is Watching You

The hidden price of Google, Twitter and Facebook.

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BY JOANNA SCUTTS

Your decision to click—and even the amount of time you spend reading or watching—is a piece of data for which the advertiser will pay good money.

What are we prepared to give up in the name of convenience? ThroughoutJacob Silverman’s capacious study of the world we’re in and the world we’re making—or rather, allowing tech companies to make for us—it’s demonstrated repeatedly that billions of us are happy to surrender our privacy to save a few keystrokes. Why not log in to that other website with your Facebook or Twitter or Google ID? Why not use your real identity and photograph, with a record of your movements, all across the web? You have it on Google’s word that they’re not “evil”; what could be the harm?

Silverman’s new book, Terms of Service: Social Media and the Price of Constant Connection, does a thorough, if sometimes long-winded, job of explaining what the harm is and what it could become. He begins with an analysis of the philosophy, variously termed “techno-utopianism” or “cyber-libertarianism,” that drives the major social media companies. The ideology should be familiar in essence, if not in name—we’ve been soaking in it for the past decade. Media theorists, long before the advent of Facebook, were calling it “the Californian ideology.” It’s what happens when youthful rebelliousness and a countercultural, anti-authoritarian spirit meets gobs of cash and untrammeled power. It’s the myth—tirelessly peddled by optimistic tech, business and culture reporters and embraced by the customers who line up for new gadgets—that a corporation that calls its headquarters a “campus” and equips its offices with slides, snacks and free daycare is something other than a capitalist entity, with motives other than profit.

To be fair, the big tech companies—Google and Facebook are the stars here, with Twitter, Tumblr and LinkedIn singing backup—do have goals beyond their bottom line. They want to do the kinds of things that beauty-pageant contestants want to do: cure diseases, end terrorism, go to the moon. They share a disdain for government—Mark Zuckerberg is committed to the idea of “companies over countries”—but also share a zeal for surveillance.

For Silverman, the harm of social media is both specific and philosophical. It turns journalism into a clickbait race, for instance, but it also radically changes our concepts of privacy and identity. He considers the fate of those who are chewed up and spat out by the Internet’s nano-fame cycle (nobody gets 15 minutes anymore), whose embarrassing or self-aggrandizing antics, captured on video, do the rounds and attract a quick, overwhelming torrent of derision or rage. But while we might shrug our shoulders at the fate of an Antoine Dodson or a Taylor Chapman (respectively a viral hero and villain), Silverman argues that we should be aware of the numbing and alienating consequences of the viral instinct. Not only does it frequently make clowns of those who are seriously disadvantaged, and destroy reputations and careers, it also molds the larger media world in its own image. Hate-watching a two-minute video of a reality show contestant’s racist rant is a sign that you’ll give attention to this kind of content—and the site that hosts the video, beholden to its advertisers, traffics in your attention, not your intelligence or humanity.

Headlines have always been composed to grab attention, but now they can gather intelligence too. Your decision to click—and even the amount of time you spend reading or watching—is a piece of data for which the advertiser will pay good money. As Silverman describes it, the urge to gather endless data about all of us—from our spending habits to the pace of our heartbeats—is a huge, lucrative industry, driven by the fantasy that correlation is causation, that because you did X activity, you’ll buy Y product.

It may be foolhardy to make predictions about the fast-evolving tech world, but Silverman offers some chilling evidence that the world of “big data” is beginning to affect the choices available to us. Some healthcare companies will lower your premiums if you use a fitness-tracking app (and share that data, of course). Data about what you eat and buy is increasingly being used like your credit score, to determine if you are worthy of that job, that car or that home.

So what? A good citizen who eats her greens and pays her bills has nothing to fear! And if she worries that some misstep—glancing at an unsavory website, running a red light, suffering a computer hack—will damage her, she can just pay protection money to one of several companies that exist to safeguard their clients’ online reputations. Silverman has no solution to these linked problems, of course, since there is far too much money driving this brave new world and far too little government will to resist. Mass surveillance is the present and the future. But if information—meaning data points—is corporate power, then knowledge and critical thinking may be citizen power.

Silverman is too cautious and self-conscious a thinker to inspire a revolution. Instead, he advocates a kind of lowlevel “social-media rebellion”—messing with, rather than rejecting, the digitally networked world in which we live. Putting up a cartoon monkey as your online avatar might not feel like much of a blow to the Facebook assault on privacy, but it’s an annoyance to the booming facial- recognition industry—and perhaps a few million determined annoyances can disrupt the techno-utopia in favor of the common good.

Joanna Scutts is a freelance writer based in Queens, NY, and a board member of the National Book Critics Circle. Her book reviews and essays have appeared in the Washington Post, the New Yorker Online, The Nation, The Wall Street Journal and several other publications. You can follow her on Twitter @life_savour.

 

http://inthesetimes.com/article/17734/big-data-is-watching-you

Surveillance Valley: Why Google Is Eager to Align Itself With America’s Military Industrial Complex

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Is it wise for us to hand over the contents of our private lives to private companies?

The following is an excerpt from Yasha Levine’s ongoing investigative project,Surveillance Valley, which you can help support on KickStarter.

Oakland, California: On February 18, 2014, several hundred privacy, labor, civil rights activists packed Oakland’s city hall.

It was a rowdy crowd, and there was a heavy police presence. The people were there to protest the construction of a citywide surveillance center that would turn a firehouse in downtown Oakland into a high-tech intelligence hub straight out of Mission Impossible — a federally funded project that linking up real time audio and video feeds from thousands of sensors across the city into one high-tech control hub, where analysts could pipe the data through face recognition software and enrich its intelligence with data coming in from local, state and federal government and law enforcement agencies.

Residents’ anger at the fusion surveillance center was intensified by a set of internal documents showing that city officials were more interested in using the surveillance center monitor political protests rather than fighting crime: keeping tabs on activists, monitoring non-violent political protests and tracking union organizing that might shut down the Port of Oakland. It was an incendiary find — especially in Oakland, a city with a large marginalized black population, a strong union presence and a long, ugly history of police brutality aimed at minority groups and political activists.

But buried deep in the thousands of pages of planning documents was another disturbing detail. Emails that showed Google — the largest and most powerful corporation in Silicon Valley — was among several other defense contractors vying for a piece of Oakland’s $11 million surveillance contract.

What was Google doing there? What could a company known for superior search and cute doodles offer a controversial surveillance center?

Turns out, a lot.

Most people still think that Google is one of the good guys on the Internet, that it’s a goofy company that aims only to provide the best and coolest tools on the web — from search, to cool maps to endless email space to amazing mobile maps and a powerful replacement for Microsoft Office.

But the free Google services and apps that we interact with on a daily basis aren’t the company’s main product. They are the harvesting machines that dig up and process the stuff that Google really sells: for-profit intelligence.

Google isn’t a traditional Internet service company. It isn’t even an advertising company. Google is a whole new type of beast that runs on a  totally new type of tech business model.

Google is a global for-profit surveillance corporation — a company that tries to funnel as much user activity in the real and online world through its services in order to track, analyze, and profile us: It tracks as much of our daily lives as possible: who we are, what we do, what we like, where we go, who we talk to, what we think about, what we’re interested in. All those things are seized, packaged, commodified, and sold on the market.

It’s an amazingly profitable activity that takes bits and pieces and the most intimate detritus of our private lives — something that never really had any commercial value and turns it into billions of pure profit. It’s like turning rocks and gravel into gold. And it nets Google nearly $20 billion in annual profits.

At this point, most of the business comes from matching the right ad to the right pair of eyeballs at jus the right time.  But who knows how the massive database Google’s compiling on all of us will be used in the future?

What kind of intel does Google compile on us? The company is very secretive about that info. But here are a few data points that could go into its user profiles, gleaned from two patents Google filed a decade ago, prior to launching its Gmail service:

  • Concepts and topics discussed in email, as well as email attachments
  • The content of websites that users have visited
  • Demographic information—including income, sex, race, marital status
  • Geographic information
  • Psychographic information—personality type, values, attitudes, interests
  • Previous searches users have made
  • Information about documents users viewed and edited
  • Browsing activity
  • Previous purchases

If Google’s creepy for-profit surveillance for you, then there are Google’s deep ties to the NSA and the U.S. military-surveillance complex.

Googles ties to military-intelligence industrial complex go back to 1990s, when Sergey Brin and Larry Page were still run of the mill computer science PhD students at Stanford. Their research into web search and indexing, which they spun off into a private company in 1998, was part of a Stanford project partially funded by DARPA, a research and development appendage to the DoD. The two nerdy inventors even gave the DoD’s research arm a shout out in a 1998 paper that outlined Google’s search and indexing methodology.

Computer science research is frequently funded with military and defense money, of course. But Google’s ties to the military-intelligence world didn’t end after they Brin and Page privatized their research and moved their startup operation off campus. If anything, the relationship deepened and got more intimate after they left Stanford.

Google’s intel and military contracting started with custom search contracts with the CIA and NSA in the early 2000s (the CIA even had a customized Google’s logo on its Google-powered intranet search page) and hit a much more series phase in 2004, with Google’s acquisition of a tiny and unknown 3-D mapping startup called Keyhole.

Google purchased the company in 2004 for an undisclosed sum and immediately folded the company’s mapping technology into what later became known as Google Earth. The acquisition would have gone unnoticed if it wasn’t for one tiny detail: Keyhole was part owned by the CIA and NSA.

A year before Google bought the company, it had received a substantial investment from In-Q-Tel, the venture capital fund run by the CIA on behalf of the military and intelligence community. The exact amount that In-Q-Tel invested into Keyhole is classified, but its new spook backers didn’t sit idle — they became intimately involvement in running the company. This was no secret. The CIA publicly discussed its hands-on approach, bragging in its promotional materials that the agency “worked closely with other Intelligence Community organizations to tailor Keyhole’s systems to meet their needs.” And the CIA guys worked fast: Just a few weeks after In-Q-Tel invested in Keyhole, an NGA official bragged that its technology was already being deployed by the Pentagon to prepare U.S. forces for the invasion of Iraq.

This close collaboration between Keyhole/Google Earth and the U.S. National Security State continues today.

Over the years, Google’s reach expanded to include just about every major intel and law enforcement agency in the United States. Today, Google technology enhance the surveillance capabilities of the  NSA, FBI, CIA, DEA, NGA, the U.S Navy and Army, and just about every wing of the DoD.

If you take a look at the roster of Google’s DC office — Google Federal — you’ll see the list jammed with names of former spooks, high-level intelligence officials and assorted revolving door military contractors: US Army, Air Force Intelligence, Central Intelligence Agency, Director of National Intelligence, USAID, SAIC, Lockheed.

Take the CV of Michele R. Weslander Quaid, Google’s Chief Technology Officer of Public Sector and “Innovation Evangelist.”

After the 9/11 terrorist attacks, Weslander Quaid felt a patriotic duty to help fight the War on Terror. So she quit her private sector job at a CIA contractor called Scitor Corporation and joined the official world of US government intelligence. She quickly rose through the ranks, serving in executive positions at the National Geospatial-Intelligence Agency (sister agency to the NSA), National Reconnaissance Office and at the Office of the Director of National Intelligence. She toured combat zones in both Iraq and Afghanistan in order to see the tech needs of the military first-hand. All throughout her intel career, she championed a “startup” mentality and the benefits of cloud-based services. Which made her a perfect candidate to head up Google’s federal contractor-lobbying operation…

In the past few years, Google has aggressively intensified its campaign to grab a bigger slice of the insanely lucrative military-intelligence contracting market.

It’s been targeting big and juicy federal agencies — the U.S. Naval Academysigned up for Google Apps, the U.S. Army tapped Google Apps for a pilot program involving 50,000 DoD personnel, Idaho’s nuclear labwent Google, the U.S. Department of the Interior switched to Gmail, and the U.S. Coast Guard Academy went with Google, too. Google even entered into a partnership with the NGA, a sister agency to NSA to launch its very own spy satellite called GeoEye-1 — a spy satellite that it would share with the U.S. military intelligence apparatus.

In some cases, Google sells its wares to government intel agencies directly — like it did with the NSA and NGA. It’s also been taking the role of subcontractor: selling its tech by partnering with established military contractors and privatized surveillance firms like SAIC, Lockheed and smaller boutique outfits like the Blackwater-connected merc outfit called Blackbird.

In short: Google’s showing itself willing to do just about anything it can to more effectively hitch itself to America’s military-intelligence-industrial complex.

Google has also been hard-selling its intel technology to smaller local and state government agencies as well — which is why Google was trying to bid on a police surveillance center in Oakland, California.

A company that monopolizes huge swaths of the Internet, makes billions by surveilling and profiling its users and is very deliberately angling to become the Lockheed-Martin of the Internet Age?

Should we be so trusting towards Google? And is it so wise for us to hand over the contents of our private lives — without demanding any control or oversight or care?

Excerpted from Yasha Levine’s ongoing investigative project, Surveillance Valley, which you can help support on KickStarter.

Google has captured your mind

Searches reveal who we are and how we think. True intellectual privacy requires safeguarding these records

Google has captured your mind
(Credit: Kuzma via iStock/Salon)

The Justice Department’s subpoena was straightforward enough. It directed Google to disclose to the U.S. government every search query that had been entered into its search engine for a two-month period, and to disclose every Internet address that could be accessed from the search engine. Google refused to comply. And so on Wednesday January 18, 2006, the Department of Justice filed a court motion in California, seeking an order that would force Google to comply with a similar request—a random sample of a million URLs from its search engine database, along with the text of every “search string entered onto Google’s search engine over a one-week period.” The Justice Department was interested in how many Internet users were looking for pornography, and it thought that analyzing the search queries of ordinary Internet users was the best way to figure this out. Google, which had a 45-percent market share at the time, was not the only search engine to receive the subpoena. The Justice Department also requested search records from AOL, Yahoo!, and Microsoft. Only Google declined the initial request and opposed it, which is the only reason we are aware that the secret request was ever made in the first place.

The government’s request for massive amounts of search history from ordinary users requires some explanation. It has to do with the federal government’s interest in online pornography, which has a long history, at least in Internet time. In 1995 Time Magazine ran its famous “Cyberporn” cover, depicting a shocked young boy staring into a computer monitor, his eyes wide, his mouth agape, and his skin illuminated by the eerie glow of the screen. The cover was part of a national panic about online pornography, to which Congress responded by passing the federal Communications Decency Act (CDA) the following year. This infamous law prevented all websites from publishing “patently offensive” content without first verifying the age and identity of its readers, and the sending of indecent communications to anyone under eighteen. It tried to transform the Internet into a public space that was always fit for children by default.


The CDA prompted massive protests (and litigation) charging the government with censorship. The Supreme Court agreed in the landmark case of Reno v. ACLU (1997), which struck down the CDA’s decency provisions. In his opinion for the Court, Justice John Paul Stevens explained that regulating the content of Internet expression is no different from regulating the content of newspapers.The case is arguably the most significant free speech decision over the past half century since it expanded the full protection of the First Amendment to Internet expression, rather than treating the Internet like television or radio, whose content may be regulated more extensively. In language that might sound dated, Justice Stevens announced a principle that has endured: “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” The Internet, in other words, was now an essential forum for free speech.

In the aftermath of Reno, Congress gave up on policing Internet indecency, but continued to focus on child protection. In 1998 it passed the Children’s Online Protection Act, also known as COPA. COPA punished those who engaged in web communications made “for commercial purposes” that were accessible and “harmful to minors” with a $50,000 fine and prison terms of up to six months. After extensive litigation, the Supreme Court in Ashcroft v. ACLU (2004) upheld a preliminary injunction preventing the government from enforcing the law. The Court reasoned that the government hadn’t proved that an outright ban of “harmful to minors” material was necessary. It suggested that Congress could have instead required the use of blocking or filtering software, which would have had less of an impact on free speech than a ban, and it remanded the case for further proceedings. Back in the lower court, the government wanted to create a study showing that filtering would be ineffective, which is why it wanted the search queries from Google and the other search engine companies in 2006.

Judge James Ware ruled on the subpoena on March 17, 2006, and denied most of the government’s demands. He granted the release of only 5 percent of the requested randomly selected anonymous search results and none of the actual search queries. Much of the reason for approving only a tiny sample of the de-identified search requests had to do with privacy. Google had not made a direct privacy argument, on the grounds that de-identified search queries were not “personal information,” but it argued that disclosure of the records would expose its trade secrets and harm its goodwill from users who believed that their searches were confidential. Judge Ware accepted this oddly phrased privacy claim, and added one of his own that Google had missed. The judge explained that Google users have a privacy interest in the confidentiality of their searches because a user’s identity could be reconstructed from their queries and because disclosure of such queries could lead to embarrassment (searches for, e.g., pornography or abortions) or criminal liability (searches for, e.g., “bomb placement white house”). He also placed the list of disclosed website addresses under a protective order to safeguard Google’s trade secrets.

Two facets of Judge Ware’s short opinion in the “Search Subpoena Case” are noteworthy. First, the judge was quite correct that even search requests that have had their user’s identities removed are not anonymous, as it is surprisingly easy to re-identify this kind of data. The queries we enter into search engines like Google often unwittingly reveal our identities. Most commonly, we search our own names, out of vanity, curiosity, or to discover if there are false or embarrassing facts or images of us online. But other parts of our searches can reveal our identities as well. A few months after the Search Subpoena Case, AOL made public twenty million search queries from 650,000 users of its search engine users. AOL was hoping this disclosure would help researchers and had replaced its users’ names with numerical IDs to protect their privacy. But two New York Times reporters showed just how easy it could be to re-identify them. They tracked down AOL user number 4417749 and identified her as Thelma Arnold, a sixty-two-year old widow in Lilburn, Georgia. Thelma had made hundreds of searches including “numb fingers,” “60 single men,” and “dog that urinates on everything.” The New York Times reporters used old-fashioned investigative techniques, but modern sophisticated computer science tools make re-identification of such information even easier. One such technique allowed computer scientists to re-identify users in the Netflix movie-watching database, which that company made public to researchers in 2006.

The second interesting facet of the Search Subpoena Case is its theory of privacy. Google won because the disclosure threatened its trade secrets (a commercial privacy, of sorts) and its business goodwill (which relied on its users believing that their searches were private). Judge Ware suggested that a more direct kind of user privacy was at stake, but was not specific beyond some generalized fear of embarrassment (echoing the old theory of tort privacy) or criminal prosecution (evoking the “reasonable expectation of privacy” theme from criminal law). Most people no doubt have an intuitive sense that their Internet searches are “private,” but neither our intuitions nor the Search Subpoena Case tell us why. This is a common problem in discussions of privacy. We often use the word “privacy” without being clear about what we mean or why it matters. We can do better.

Internet searches implicate our intellectual privacy. We use tools like Google Search to make sense of the world, and intellectual privacy is needed when we are making sense of the world. Our curiosity is essential, and it should be unfettered. As I’ll show in this chapter, search queries implicate a special kind of intellectual privacy, which is the freedom of thought.

Freedom of thought and belief is the core of our intellectual privacy. This freedom is the defining characteristic of a free society and our most cherished civil liberty. This right encompasses the range of thoughts and beliefs that a person might hold or develop, dealing with matters that are trivial and important, secular and profane. And it protects the individual’s thoughts from scrutiny or coercion by anyone, whether a government official or a private actor such as an employer, a friend, or a spouse. At the level of law, if there is any constitutional right that is absolute, it is this one, which is the precondition for other political and religious rights guaranteed by the Western tradition. Yet curiously, although freedom of thought is widely regarded as our most important civil liberty, it has not been protected in our law as much as other rights, in part because it has been very difficult for the state or others to monitor thoughts and beliefs even if they wanted to.

Freedom of Thought and Intellectual Privacy

In 1913 the eminent Anglo-Irish historian J. B. Bury published A History of Freedom of Thought, in which he surveyed the importance of freedom of thought in the Western tradition, from the ancient Greeks to the twentieth century. According to Bury, the conclusion that individuals should have an absolute right to their beliefs free of state or other forms of coercion “is the most important ever reached by men.” Bury was not the only scholar to have observed that freedom of thought (or belief, or conscience) is at the core of Western civil liberties. Recognitions of this sort are commonplace and have been made by many of our greatest minds. René Descartes’s maxim, “I think, therefore I am,” identifies the power of individual thought at the core of our existence. John Milton praised in Areopagitica “the liberty to know, to utter, and to argue freely according to conscience, above all [other] liberties.”

In the nineteenth century, John Stuart Mill developed a broad notion of freedom of thought as an essential element of his theory of human liberty, which comprised “the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.” In Mill’s view, free thought was inextricably linked to and mutually dependent upon free speech, with the two concepts being a part of a broader idea of political liberty. Moreover, Mill recognized that private parties as well as the state could chill free expression and thought.

Law in Britain and America has embraced the central importance of free thought as the civil liberty on which all others depend. But it was not always so. People who cannot think for themselves, after all, are incapable of self-government. In the Middle Ages, the crime of “constructive treason” outlawed “imagining the death of the king” as a crime that was punishable by death. Thomas Jefferson later reflected that this crime “had drawn the Blood of the best and honestest Men in the Kingdom.” The impulse for political uniformity was related to the impulse for religious uniformity, whose story is one of martyrdom and burnings of the stake. As Supreme Court Justice William O. Douglas put it in 1963:

While kings were fearful of treason, theologians were bent on stamping out heresy. . . . The Reformation is associated with Martin Luther. But prior to him it broke out many times only to be crushed. When in time the Protestants gained control, they tried to crush the Catholics; and when the Catholics gained the upper hand, they ferreted out the Protestants. Many devices were used. Heretical books were destroyed and heretics were burned at the stake or banished. The rack, the thumbscrew, the wheel on which men were stretched, these were part of the paraphernalia.

Thankfully, the excesses of such a dangerous government power were recognized over the centuries, and thought crimes were abolished. Thus, William Blackstone’s influential Commentaries stressed the importance of the common law protection for the freedom of thought and inquiry, even under a system that allowed subsequent punishment for seditious and other kinds of dangerous speech. Blackstone explained that:

Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.

Even during a time when English law allowed civil and criminal punishment for many kinds of speech that would be protected today, including blasphemy, obscenity, seditious libel, and vocal criticism of the government, jurists recognized the importance of free thought and gave it special, separate protection in both the legal and cultural traditions.

The poisons metaphor Blackstone used, for example, was adapted from Jonathan Swift’s Gulliver’s Travels, from a line that the King of Brobdingnag delivers to Gulliver. Blackstone’s treatment of freedom of thought was itself adopted by Joseph Story in his own Commentaries, the leading American treatise on constitutional law in the early Republic. Thomas Jefferson and James Madison also embraced freedom of thought. Jefferson’s famous Virginia Statute for Religious Freedom enshrined religious liberty around the declaration that “Almighty God hath created the mind free,” and James Madison forcefully called for freedom of thought and conscience in his Memorial and Remonstrance Against Religious Assessments.

Freedom of thought thus came to be protected directly as a prohibition on state coercion of truth or belief. It was one of a handful of rights protected by the original Constitution even before the ratification of the Bill of Rights. Article VI provides that “state and federal legislators, as well as officers of the United States, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” This provision, known as the “religious test clause,” ensured that religious orthodoxy could not be imposed as a requirement for governance, a further protection of the freedom of thought (or, in this case, its closely related cousin, the freedom of conscience). The Constitution also gives special protection against the crime of treason, by defining it to exclude thought crimes and providing special evidentiary protections:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

By eliminating religious tests and by defining the crime of treason as one of guilty actions rather than merely guilty minds, the Constitution was thus steadfastly part of the tradition giving exceptional protection to the freedom of thought.

Nevertheless, even when governments could not directly coerce the uniformity of beliefs, a person’s thoughts remained relevant to both law and social control. A person’s thoughts could reveal political or religious disloyalty, or they could be relevant to a defendant’s mental state in committing a crime or other legal wrong. And while thoughts could not be revealed directly, they could be discovered by indirect means. For example, thoughts could be inferred either from a person’s testimony or confessions, or by access to their papers and diaries. But both the English common law and the American Bill of Rights came to protect against these intrusions into the freedom of the mind as well.

The most direct way to obtain knowledge about a person’s thoughts would be to haul him before a magistrate as a witness and ask him under penalty of law. The English ecclesiastical courts used the “oath ex officio” for precisely this purpose. But as historian Leonard Levy has explained, this practice came under assault in Britain as invading the freedom of thought and belief. As the eminent jurist Lord Coke later declared, “no free man should be compelled to answer for his secret thoughts and opinions.” The practice of the oath was ultimately abolished in England in the cases of John Lilburne and John Entick, men who were political dissidents rather than religious heretics.

In the new United States, the Fifth Amendment guarantee that “No person . . . shall be compelled in any criminal case to be a witness against himself ” can also be seen as a resounding rejection of this sort of practice in favor of the freedom of thought. Law of course evolves, and current Fifth Amendment doctrine focuses on the consequences of a confession rather than on mental privacy, but the origins of the Fifth Amendment are part of a broad commitment to freedom of thought that runs through our law. The late criminal law scholar William Stuntz has shown that this tradition was not merely a procedural protection for all, but a substantive limitation on the power of the state to force its enemies to reveal their unpopular or heretical thoughts. As he put the point colorfully, “[i]t is no coincidence that the privilege’s origins read like a catalogue of religious and political persecution.”

Another way to obtain a person’s thoughts would be by reading their diaries or other papers. Consider the Fourth Amendment, which protects a person from unreasonable searches and seizures by the police:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Today we think about the Fourth Amendment as providing protection for the home and the person chiefly against unreasonable searches for contraband like guns or drugs. But the Fourth Amendment’s origins come not from drug cases but as a bulwark against intellectual surveillance by the state. In the eighteenth century, the English Crown had sought to quash political and religious dissent through the use of “general warrants,” legal documents that gave agents of the Crown the authority to search the homes of suspected dissidents for incriminating papers.

Perhaps the most infamous dissident of the time was John Wilkes. Wilkes was a progressive critic of Crown policy and a political rogue whose public tribulations, wit, and famed personal ugliness made him a celebrity throughout the English-speaking world. Wilkes was the editor of a progressive newspaper, the North Briton, a member of Parliament, and an outspoken critic of government policy. He was deeply critical of the 1763 Treaty of Paris ending the Seven Years War with France, a conflict known in North America as the French and Indian War. Wilkes’s damning articles angered King George, who ordered the arrest of Wilkes and his co-publishers of the North Briton, authorizing general warrants to search their papers for evidence of treason and sedition. The government ransacked numerous private homes and printers’ shops, scrutinizing personal papers for any signs of incriminating evidence. In all, forty-nine people were arrested, and Wilkes himself was charged with seditious libel, prompting a long and inconclusive legal battle of suits and countersuits.

By taking a stand against the king and intrusive searches, Wilkes became a cause célèbre among Britons at home and in the colonies. This was particularly true for many American colonists, whose own objections to British tax policy following the Treaty of Paris culminated in the American Revolution. The rebellious colonists drew from the Wilkes case the importance of political dissent as well as the need to protect dissenting citizens from unreasonable (and politically motivated) searches and seizures.

The Fourth Amendment was intended to address this problem by inscribing legal protection for “persons, houses, papers, and effects” into the Bill of Rights. A government that could not search the homes and read the papers of its citizens would be less able to engage in intellectual tyranny and enforce intellectual orthodoxy. In a pre-electronic world, the Fourth Amendment kept out the state, while trespass and other property laws kept private parties out of our homes, paper, and effects.

The Fourth and Fifth Amendments thus protect the freedom of thought at their core. As Stuntz explains, the early English cases estab- lishing these principles were “classic First Amendment cases in a system with no First Amendment.” Even in a legal regime without protection for dissidents who expressed unpopular political or religious opinions, the English system protected those dissidents in their private beliefs, as well as the papers and other documents that might reveal those beliefs.

In American law, an even stronger protection for freedom of thought can be found in the First Amendment. Although the First Amendment text speaks of free speech, press, and assembly, the freedom of thought is unquestionably at the core of these guarantees, and courts and scholars have consistently recognized this fact. In fact, the freedom of thought and belief is the closest thing to an absolute right guaranteed by the Constitution. The Supreme Court first recognized it in the 1878 Mormon polygamy case of Reynolds v. United States, which ruled that although law could regulate religiously inspired actions such as polygamy, it was powerless to control “mere religious belief and opinions.” Freedom of thought in secular matters was identified by Justices Holmes and Brandeis as part of their dissenting tradition in free speech cases in the 1910s and 1920s. Holmes declared crisply in United States v. Schwimmer that “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” And in his dissent in the Fourth Amendment wiretapping case of Olmstead v. United States, Brandeis argued that the framers of the Constitution “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” Brandeis’s dissent in Olmstead adapted his theory of tort privacy into federal constitutional law around the principle of freedom of thought.

Freedom of thought became permanently enshrined in constitutional law during a series of mid-twentieth century cases that charted the contours of the modern First Amendment. In Palko v. Connecticut, Justice Cardozo characterized freedom of thought as “the matrix, the indispensable condition, of nearly every other form of freedom.” And in a series of cases involving Jehovah’s Witnesses, the Court developed a theory of the First Amendment under which the rights of free thought, speech, press, and exercise of religion were placed in a “preferred position.” Freedom of thought was central to this new theory of the First Amendment, exemplified by Justice Jackson’s opinion in West Virginia State Board of Education v. Barnette, which invalidated a state regulation requiring that public school children salute the flag each morning. Jackson declared that:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. . . .

[The flag-salute statute] transcends constitutional limitations on [legislative] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Modern cases continue to reflect this legacy. The Court has repeatedly declared that the constitutional guarantee of freedom of thought is at the foundation of what it means to have a free society. In particular, freedom of thought has been invoked as a principal justification for preventing punishment based upon possessing or reading dangerous media. Thus, the government cannot punish a person for merely possessing unpopular or dangerous books or images based upon their content. As Alexander Meiklejohn put it succinctly, the First Amendment protects, first and foremost, “the thinking process of the community.”

Freedom of thought thus remains, as it has for centuries, the foundation of the Anglo-American tradition of civil liberties. It is also the core of intellectual privacy.

“The New Home of Mind”

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.” So began “A Declaration of Independence of Cyberspace,” a 1996 manifesto responding to the Communications Decency Act and other attempts by government to regulate the online world and stamp out indecency. The Declaration’s author was John Perry Barlow, a founder of the influential Electronic Frontier Foundation and a former lyricist for the Grateful Dead. Barlow argued that “[c]yberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.” This definition of the Internet as a realm of pure thought was quickly followed by an affirmation of the importance of the freedom of thought. Barlow insisted that in Cyberspace “anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” The Declaration concluded on the same theme: “We will spread ourselves across the Planet so that no one can arrest our thoughts. We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.”

In his Declaration, Barlow joined a tradition of many (including many of the most important thinkers and creators of the digital world) who have expressed the idea that networked computing can be a place of “thought itself.” As early as 1960, the great computing visionary J. C. R. Licklider imagined that “in not too many years, human brains and computing machines will be coupled together very tightly, and that the resulting partnership will think as no human brain has ever thought.” Tim Berners-Lee, the architect of the World Wide Web, envisioned his creation as one that would bring “the workings of society closer to the workings of our minds.”

Barlow’s utopian demand that governments leave the electronic realm alone was only partially successful. The Communications Decency Act was, as we have seen, struck down by the Supreme Court, but today many laws regulate the Internet, such as the U.S. Digital Millenium Copyright Act6and the EU Data Retention Directive. The Internet has become more (and less) than Barlow’s utopian vision—a place of business as well as of thinking. But Barlow’s description of the Internet as a world of the mind remains resonant today.

It is undeniable that today millions of people use computers as aids to their thinking. In the digital age, computers are an essential and intertwined supplement to our thoughts and our memories. Discussing Licklider’s prophesy from half a century ago, legal scholar Tim Wu notes that virtually every computer “program we use is a type of thinking aid—whether the task is to remember things (an address book), to organize prose (a word processor), or to keep track of friends (social network software).” These technologies have become not just aids to thought but also part of the thinking process itself. In the past, we invented paper and books, and then sound and video recordings to preserve knowledge and make it easier for us as individuals and societies to remember information. Digital technologies have made remembering even easier, by providing cheap storage, inexpensive retrieval, and global reach. Consider the Kindle, a cheap electronic reader that can hold 1,100 books, or even cheaper external hard drives that can hold hundreds of hours of high-definition video in a box the size of a paperback novel.

Even the words we use to describe our digital products and experiences reflect our understanding that computers and cyberspace are devices and places of the mind. IBM has famously called its laptops “ThinkPads,” and many of us use “smartphones.” Other technologies have been named in ways that affirm their status as tools of the mind—notebooks, ultrabooks, tablets, and browsers. Apple Computer produces iPads and MacBooks and has long sold its products under the slogan, “Think Different.” Google historian John Battelle has famously termed Google’s search records to be a “database of intentions.” Google’s own slogan for its web browser Chrome is “browse the web as fast as you think,” revealing how web browsing itself is not just a form of reading, but a kind of thinking itself. My point here is not just that common usage or marketing slogans connect Internet use to thinking, but a more important one: Our use of these words reflects a reality. We are increasingly using digital technologies not just as aids to our memories but also as an essential part of the ways we think.

Search engines in particular bear a special connection to the processes of thought. How many of us have asked a factual question among friends, only for smartphones to appear as our friends race to see who can look up the answer the fastest? In private, we use search engines to learn about the world. If you have a moment, pull up your own search history on your phone, tablet, or computer, and recall your past queries. It usually makes for interesting reading—a history of your thoughts and wonderings.

But the ease with which we can pull up such a transcript reveals another fundamental feature of digital technologies—they are designed to create records of their use. Think again about the profile a search engine like Google has for you. A transcript of search queries and links followed is a close approximation to a transcript of the operation of your mind. In the logs of search engine companies are vast repositories of intellectual wonderings, questions asked, and mental whims followed. Similar logs exist for Internet service providers and other new technology companies. And the data contained in such logs is eagerly sought by government and private entities interested in monitoring intellectual activity, whether for behavioral advertising, crime and terrorism prevention, and possibly other, more sinister purposes.

Searching Is Thinking

With these two points in mind—the importance of freedom of thought and the idea of the Internet as a place where thought occurs—we can now return to the Google Search Subpoena with which this chapter opened. Judge Ware’s opinion revealed an intuitive understanding that the disclosure of search records was threatening to privacy, but was not clear about what kind of privacy was involved or why it matters.

Intellectual privacy, in particular the freedom of thought, supplies the answer to this problem. We use search engines to learn about and make sense of the world, to answer our questions, and as aids to our thinking. Searching, then, in a very real sense is a kind of thinking. And we have a long tradition of protecting the privacy and confidentiality of our thoughts from the scrutiny of others. It is precisely because of the importance of search records to human thought that the Justice Department wanted to access the records. But if our search records were more public, we wouldn’t merely be exposed to embarrassment like Thelma Arnold of Lilburn, Georgia. We would be less likely to search for unpopular or deviant or dangerous topics. Yet in a free society, we need to be able to think freely about any ideas, no matter how dangerous or unpopular. If we care about freedom of thought—and our political institutions are built on the assumption that we do—we should care about the privacy of electronic records that reveal our thoughts. Search records illustrate the point well, but this idea is not just limited to that one important technology. My argument about freedom of thought in the digital age is this: Any technology that we use in our thinking implicates our intellectual privacy, and if we want to preserve our ability to think fearlessly, free of monitoring, interference, or repercussion, we should embody these technologies with a meaningful measure of intellectual privacy.

Excerpted from “Intellectual Privacy: Rethinking Civil Liberties in the Digital Age” by Neil Richards. Published by Oxford University Press. Copyright 2015 by Neil Richards. Reprinted with permission of the publisher. All rights reserved.

Neil Richards is a Professor of Law at Washington University, where he teaches and writes about privacy, free speech, and the digital revolution.