Podcast Episode: Watching the Watchers Podcast Episode: Watching the Watchers

Imagine being detained by armed agents whenever you returned from traveling outside the country. That’s what life became like for Academy Award-winning filmmaker Laura Poitras, who was placed on a terrorist watch-list after she made a documentary critical of the U.S. invasion and occupation of Iraq. Poitras was detained close to 100 times between 2006 and 2012, and border agents routinely copied her notebooks and threatened to take her electronics.

It was only after Poitras teamed up with EFF to sue the government that she was able to see evidence of the government’s six-year campaign of spying on her. This week on our podcast, Poitras joins EFF’s Cindy Cohn and Danny O’Brien to talk about her continuing work to uncover spying on journalists, and what we can do to fight back against mass surveillance.

Click below to listen to the episode now, or choose your podcast player:

You can also find the MP3 of this episode on the Internet Archive. In this episode, you’ll learn about:

Laura Poitras is a filmmaker, journalist, and artist. Citizenfour, the third installment of her post-9/11 Trilogy, won the 2014 Academy Award for Best Documentary.

Poitras’ reporting on NSA global mass surveillance, based on Edward Snowden’s disclosures, won the George Polk Award for national security journalism, and the 2014 Pulitzer Prize for Public Service, together with The Guardian and Washington Post.

Music for How to Fix the Internet was created for us by Reed Mathis and Nat Keefe of BeatMower.

This podcast is licensed Creative Commons Attribution 4.0 International, and includes the following music licensed Creative Commons Attribution 3.0 Unported by their creators:

Laura Poitras:

It was very aggressive.In one case, they confiscated my computer, and phones, and recording devices. Other cases, they would just threaten to do that. They would say, "This would all be much easier for you if you just give us your passwords and let us look at your electronics." Some cases they would say, "If you don't answer our questions, we'll find our answers on your electronic devices."

So although this was happening as I continued to make work and continued to be stopped every time. I always ask questions. I always took notes, and they were not forthcoming in terms of why. Being watch listed is a process without any recourse, nobody asks for any evidence of why. You can’t mount a defense.

Cindy Cohn:

That's Laura Poitras, and she's our guest today. If her name is familiar, it's because she directed the Oscar winning documentary Citizenfour about the NSA and the whistleblower Edward Snowden.

Danny O’Brien:

Laura watches the watchers. She turns her lens on those who surveil us. She knows firsthand what it feels like to be tracked by the government.

Cindy:

I'm Cindy Cohn, EFF's, Executive Director.

Danny:

I'm Danny O'Brien, special advisor to the Electronic Frontier foundation. On this podcast, we help you understand the web of technology all around us, and explore solutions to build a better digital future. Welcome to How to Fix the Internet.

Cindy:

Well, Laura, thank you so much for coming to talk to us. I'm so looking forward to this conversation.

Laura:

Yeah, it's great to see you, and to talk with you, Cindy. I'm such a huge admirer of EFF's work in protecting our privacy and securing the internet, and keeping it a place for free conversation and exchange of ideas.

Cindy:

Oh, thanks. Well, it's love, love all around here. So you are well known as someone who really likes to turn a lens on the people who are watching us. How did you get interested in this kind of viewpoint of watching the watchers?

Laura:

I think a number of things happened right after 9/11, which one of the major things that the US government did in addition to its occupation of Iraq, and creating a secret prisons and Guantanamo Bay prison and torturing people was surveillance, was mass, global surveillance.

And this was decided in the immediate aftermath of 9/11. And we didn't know that at the time though, it wasn't something that the public was informed about, but it happened behind the scenes. And through my reporting, and over the years, and through the bravery of whistleblowers, we've learned more and more of how it was that the US government used 9/11 as an excuse to use mass surveillance, both internally and illegally against US citizens and then in global collection of communication.

And so it's been going back a long time. My work on looking at America post 9/11 began with a film I made about the US occupation of Iraq, and that I started filming in 2004 and released it two years later. And that film about the occupation became part of a trilogy. And the final part of the trilogy is Citizenfour, which is the film that you reference about Edward Snowden and the NSA.

Cindy:

But as part of this, you had the tables turned on you. Right? You became one of the people being watched at the border. Can you talk a little bit about what that was like?

Laura:

I think we should say here that EFF has been very much a part of my learning about the US targeting. I was placed on a terrorist watch list after I made the film in Iraq. After it was finished, after I'd come home and released the film, I started being detained at airports, at US airports, both flying domestically and internationally.

And when I was detained, it was very aggressive. They provided very little context or information, even though I asked to know why I was being stopped. But it happened every time I boarded a plane or actually every time I returned home to the US, internationally. I would land. And they would ask everybody on the plane to show their passports before they could get off the plane. So this would take oftentimes 30 minutes, 40 minutes after a long flight. And then I would show my passport. And then I'd be escorted by armed agents, and taken into secondary screening, and questioned about my travel.

And I say that also, I think it's important to note that as extreme as it was, which was very extreme to be detained all the time every time I flew, particularly when I was doing journalistic work and they were threatening to take my electronics. They would copy my notebooks. As bad it was for me, I was in the privileged category of being a US citizen, and being a journalist.

I say that just to say that as extreme as it is for me, it's much more extreme for people of different nationalities, ethnicities, religions, et cetera.

Danny:

Did you ever meet anyone else who was going through this same experience of being, as you say, not absolutely targeted, but obviously having to go through a rigmarole every time they went through the border?

Laura:

Sure. There's a lot. I mean, if you are in secondary screening, I'd often start up conversations with people and they would say that it happened to them all the time. Often, rarely were there US citizens in secondary screening. Usually, it was people from other countries. Oftentimes, people would say that they're human rights workers, and it happens to them every time.

You can't find out anything of why it's happening to you. You can't present any evidence to stop it. And it continued from 2006 and then they stopped detaining me in 2012. So for six years, I was probably detained in airports close to 100 times.

Danny:

Wow.

Laura:

This is part where we're watching the watchers. I've gotten to learn a lot more about their watch listing through my reporting and got, and I've had the ability to expose some of it through whistleblowers, such as Edward Snowden. And so when he released documents to myself and other journalists, one of the, of course, first things that I searched for it in the NSA archive was watch listing. And then there you see it. Reading an NSA agents talking about, "Here we are, we've started our new watch listing program. This is how it works. We've created this in the post 9/11 era to protect the Homeland.

And this is how you nominate people." And so watch listing as a verb. And so, seeing those documents and then being able to report on them and release on them. Other whistleblowers have come forward, so now the government can't deny that it has a watch listing program, but its still, many people are caught up in it.

Cindy:

It took years of litigation, not only in your case but in a couple other cases we were trackingand some others that we were tracking before the government even admitted they had a list and then they defended having the list.It was a great honor to get to do the FOIA case for you. And we found some things out. So you want to talk about that a little bit?

Laura:

Yeah, sure.I was thrilled when I got my first FBI files, even though they were heavily redacted because it was evidence. Here it is, oh my God. They really were, they were watching me. We learned through the FOIA that there was a grand jury investigation, and that grand jury investigation included requests for my personal data from multiple organizations, which is all, they are all redacted. But we can assume that is all of the internet providers, probably any bank, any financial institutions that I did business with.

All of these records were obtained by the government. And this would've been in 2007. So this is many years before Edward Snowden contacted me. Many years. And in the aftermath of making the film about the occupation of Iraq.

And so the investigation, so it was a high level, counter terrorism investigation run out of the New York office. They sent FBI agents to my film screenings and reported back what I said. They collected massive amounts of all of my personal data. And I think one thing that's I think relevant is to say that this kind of classification, so I was on a terrorist watch list and clearly I was doing journalism.

I'm a filmmaker. This is what I do. And this kind of using of creating categories to define people so that they can be separated from their rights, basically, and we see this in the case of Julian Assange and Wikileaks, when they classified them as a hostile intelligence agency. We're seeing it now with civil society groups in Palestine, the six groups that have recently been reclassified as terrorist groups.

I mean, these are directly to silence, to open people for all kinds of investigation, potentially prosecution. Obviously, full surveillance. They considered me a terrorist, and all I was doing was making films.

Cindy:

The National Security folks, they don't get any points for letting somebody off the list. They only get points for putting people on the list. I points. I don't mean that literally. I just mean that their endeavor is about trying to put as many people into that category as they can. Backing people out of it is something that they didn't appear to even have a real process to do before the litigation happened.

And the list just got longer and longer. They only got caught, honestly, for some of the things that they did. I think you're a good example of somebody who didn't look like what the American people thought a terrorist should look like. I think at one point, one of the Kennedys ended up on one of the lists.

And so that made some news. But it really does show that you need people who are watching the watchers, and you need checks and balances around this thing. One of the things that I think I sometimes wonder, if Mr. Snowden hadn't come along and you hadn't gotten the Oscar, would we have been able to get you off of these lists?

Laura:

I think it's true. There was a long time where I thought it was very likely I'd be indicted and/or never be able to return to the United States. I mean, when I started reporting on the NSA and when Snowden came forward, I just thought this is okay. And the evidence supports that. I mean, we have, there's the recent reporting from Yahoo news that focuses on the CIA's war against Wiki Leaks.

But in that it reports that the CIA also were advocating to label myself and Glen Greenwald as information brokers, that we're not journalists, we're information brokers. And that therefore we are subject to potential prosecution and certainly for complete surveillance. And so I think it's important that when we started this reporting to set the stage for this, that I do, I think the media absolutely failed in the aftermath of 9/11 to, in its duty to do adversarial journalism.

And I think that one of the tipping points was Wikileaks and Chelsea Manning's release where all of a sudden the news media had to confront that, okay, there are war crimes happening in these occupations of Iraq and Afghanistan. And then in the case of then three years later, Ed comes forward. The government tried to shut this down. I mean, they told the Guardian and the Washington Posts, "You can't publish this, this is a threat to national security." And we went forward and published it.

Cindy:

When we launched the Hepting case, which is the predecessor to the Jewel case about the NSA spying, we had evidence of the AT&T facility in downtown San Francisco being used as part of this mass surveillance program. And the government's efforts to suppress it were not subtle.So, this isn't subtle stuff. And the way that the secrecy tends to grow and metastasize and then take steps to protect itself is one of the things that really makes it hard for, I think, democracy to work. Right? For people to know what the government is doing in their name, which has to be fundamental to a society that considers itself self-governing.

Laura:

Yeah. I mean, there's a scene in Citizenfour, which is EFF arguing the Jewel case in, at the ninth circuit where you have the government coming forward making this argument how the extreme danger would pose to allow even the case to go forward. Right? The State's secrets privilege that you can't even bring a case. Right? You can't even argue the merits, because for the government to have to argue the merits would be a violation of States secrets privilege. I mean, it's so obscene

Cindy:You work documenting surveillance and specifically the surveillance of people involved in journalism continues. So, let's talk a little bit about the NSO group and the work that you've been doing there.

Laura:

I just finished a short film called Terror Contagion and that film follows an investigation into NSO group that's being conducted by forensic architecture. And this is an organization, a research agency in London that exposes state and corporate violence. And this is an investigation that they undertook is to look at the links between digital violence and physical violence.

And they undertook it for very personal reasons because many of the people who work at Forensic Architecture have their very close colleagues and collaborators have been targeted with Pegasus, which is the malware the, or the cyber weapon that's been developed and sold by the NSO group, which is an Israeli cyber weapons manufacturer. It's a film that I made. And it's an investigation that we did that we began during the lockdown last year, and continues to reveal itself in just in terms of all of its darkness.

I mean, so Pegasus is notorious for being used by governments and targeting journalists, lawyers, and human rights defenders around the world. The most disturbing case is the link between Pegasus and the assassination of Jamal Khashoggi by the Saudi government. So in that case, one of Khashoggi's very close collaborators was targeted with Pegasus.

They were doing political organizing. And Khashoggi was later lured into the embassy, brutally butchered, literally butchered. And then in recent reporting through the Pegasus project, we've learned that also his fiance and other close associates were then later to targeted with Pegasus.

So, this is a film about the NSO group that this company that it's just been linked with horrible violations. And it reminds me very much of how in the context of post 9/11 American foreign policy, how the US government used companies like Blackwater, private companies like Blackwater and other private mercenary groups to do their dirty work.

Cindy:Yes

Laura:

And so they're hired. They come in, they're completely non-accountable. And do the bidding of states. And so I think there's something very similar to how this kind of digital violence is that private sector, weapons grade level, cyber weapons being used to target dissidents, human rights defenders, lawyers, journalists. This is a private sector that absolutely needs to be regulated. This needs to stop.

Cindy:

This has been known by governments, by spy agencies, by other people for a very long time. But yet I think for ordinary folks, it's hard to see until someone like you comes along and tries to really make it real.

Laura:

I mean, I would frame that a little bit differently, Cindy, because I feel that in, if you look historically at people who are dissidents and have exposed power, it doesn't, it's not an abstraction. This, it's physical, it's in your head. I mean, one of the things that really came forward in these interviews we did with people who'd been targeted with Pegasus is the violation, the violation that you don't know who you can speak to. The sense that you are concerned that you are a vector for violence for your friends and colleagues or sources. Right?

And so you have journalists who immediately their first thought is, "Oh my God, what about my sources?" So I don't think it's this kind of a threat that's not palpable. I think the threat is very palpable.

Cindy:

But you're right, for people who are targeted by it, it's a very, very powerful tool. And we have some things that we can do to help protect people, but we really need to do more. EFF has been involved in a bunch of cases around both government use of surveillance technology and when do you hold a company responsible for it?

And the courts have and terrible at really recognizing these harms. And I think understanding how this works is one of the critical pieces for how we build a better society, and recognizing the harm that comes from being watched all the time. Whether that's in a commercial context or these kinds of much more dangerous, physically dangerous situations involving journalists and whistle blowers, and human rights activists is one of the things that we have to really understand as a society. So we can build rules that really protect against these harms.

Danny:

“How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.

Danny:

Well, we are all about at least trying to chart a way to a better future in this environment. One thing that you have touched upon is that journalism and reporting is developing tools to make these networks more visible. Do you think that there is an opportunity here for reporting done well to begin to shine a light on networks and approaches that states have used for hundreds of years, and make them something that at least people can see in front of them?

Laura:

I think journalists are key to exposing these kinds of abuse of power. I mean, organizations like Citizenlab that have been really at the forefront of tracking NSO Group and the use of Pegasus. I mean, that's people using digital expertise to hold governments accountable. I mean, all this is really, it's crucial and should be supported. And then again, I'd go back to the essential role of whistleblowers who make the choice to risk their freedom and/or their lives to expose information that the public should know. It's unfortunate that these are the systems that we're relying on. We're relying on independent journalism, we're relying on whistleblowers putting their lives on the line to expose these kinds of abuses of power.

Danny:

You've been tracking this for so long you'll know that for every whistleblower that hits the headlines like Ed Snowden or Chelsea Manning, there are dozens who provide just as useful information but don't get that kind of coverage. Either because people don't understand it is what they're saying or that they're actively harassed or discredited by governments. I do think that there's a possibility that the technologies that we are bringing out to distribute information makes the whistleblower's job a little bit easier in the modern age.

Laura:

It’s tough. I would say, and I'm sure that you two guys say this to your listeners, the importance of using encryption technology that to protect your information. That everybody should download Signal, and have Wire, and use these tools because you both because you want to protect your privacy on an individual level, but also provide solidarity for those who also need to protect their information. And so the more people that use these technologies, the better.

Cindy:

Yeah We at EFF, we say security is a team sport. And I think that that's really true about encrypted communication things, and the development of things like SecureDrop as a way for people to get information to journalists without creating as clear a trail back to them. I see, I think encryption is great. Of course, that means that in our future we've protected encryption and it's not under attack all the time.

It also means that we've done something about the governmental secrecy problem. We live in a world now where people don't have any secrets, only the government has secrets. And we need to flip that back around. Right? And we can do that. I mean, that's a hard political lift, but it's not a difficult thing to articulate what it would look like if governments had less secrecy and people had more privacy.

Cindy:

Let's dream a little. If we got all these things done, what would it be like for someone like you who's doing coverage? What would it be like for journalists and dissidents in making their way? How would all of our lives be better if we were able to make these changes?

Laura:

I mean, to begin with, whistleblowers wouldn't have to risk their lives or risk prison to communicate information that the public should know. The public has a right to know. That should just not be the system where we learn about things like watch lists and government mass surveillance at the scale that we know of it because of Edward Snowden.

So, maybe my problem is I can't just jump to this kind of any kind of utopian future. But let's have investigations into crimes that were committed in the last 20 years. To me, that would be a great start. Let's release the torture report in its entirety. Let's reveal the war crimes that have been committed. Let's hold people accountable, or at least release the information so the public knows.

Cindy:

We don't need deep thinking about what we need to do to fix it. We just need the political will to do it. But protecting whistleblowers, reducing secrecy, creating accountability are all very straightforward. Whistleblowers are the last... It's like protest. Right? That both whistle blowing and protests are things that you need to have when the systems aren't functioning. Right? They should be the escape valves for malfunctioning systems rather than the only way to make things go forward. So when you're at the point where you have whistleblowers and people taking to the streets in protest, that's a sign that the system itself isn't functioning and we should treat it as such.

Laura:

I would reframe that also. I mean, this is not a country that ever had systems of democracy that served everyone. Right? As we know, it's a society that's built on violence. And so there's never returning to any kind of past that had a sense of justice.

Cindy:

Well, that’s a fair point.

Danny:

Yeah. One of the things I got from what Cindy was just saying, there is what we're seeing now is the signs of a failing system. That you have whistleblowers and you have big exposes because the existing system isn't working. But I think one of the saddest things about what we see is that people have to conduct such heroics and have to be presented in this sort of way of being individual freedom fighters when this should just be something that is limited from the very get-go. What do you think is the role of a journalist in trying to move to a society which doesn't need these heroics?

Laura:

Okay. So I'll try and be a bit more positive. Things that I do think we should look at as positives of this era, for instance, citizen journalists. I don't think we would have a movement, a racial justice movement in this country without citizen journalists. This was not being covered by our mainstream news organizations until journalists that were living in communities that were subjected to violence came forward with evidence and they're able to do it directly without a gatekeeper. Right?

It's not a coincidence that Edward Snowden reached out to myself, a documentary filmmaker and Glen Greenwald. We were not part of the establishment. And he knew that he needed to work with journalists that weren't going to buckle. And I do think that that examples like that or examples like the young woman who filmed the brutal murder of George Floyd. I mean, she's a journalist. I mean, she changed history, what she did. And it wasn't that our news organizations were following those stories. But those stories were happening every day in communities.

Danny:

And I think what that means is that we not only have to shore up the legal protections for traditional journalists with a federal reporter shield, but we actually have to expand that out to anyone who is conducting acts of journalism.

Cindy:

And that's the way it works under the California Shield law. So we have models for this. It's the act of journalism is the thing that gets protected, not the status of the human being. And I think that's a really smart insight that now that we all have in our hands devices that can record the news, then we need to protect all the people who can record the news who do that for us.

Laura:

I absolutely agree with that. Of course, these are the people that the government most wants to peel off when it provides, when they're talking about protections of journalists. I mean, we have this with Julian Assange case where he's, where you have a publisher being targeted under the Espionage Act.

Danny:

So the other part of this that seems to come through is a failure of due process. Right? That we have secret courts, and we have this entire world of classified government action, which doesn't get the same kind of oversight and the same kind of justice to the people it mistreats. I mean, this is actually a question to both of you. Is there a model where you can see that we can restore some kind of, or even improve due process in a digital age, in this when governments, or even individuals have this huge level of technological ability to disrupt people's lives?

Laura:

Yeah. I don't have a lot of faith in our systems, but I just don't.

Cindy:

I mean, there's plenty of things we could do.I have been arguing in court for a long time that the Foreign Intelligence Surveillance Act lets you bring litigation if you are improperly targeted or affected by government surveillance. If we lift the secrecy shroud over that litigation that we do in Jewel, or in the Fazaga case that's in front of the United States Supreme Court, then we'll create a system of accountability for illegal spying. It's there in the law.

We need to read the law the right way and apply it. And again, clear talk about who's a journalist, or what who's doing journalism and what kind of protections they get? Who's doing whistle blowing, and what kind of protections they get? These are all, these are all situations in which what we need is the political will.So yeah, I got lots of solutions, most of them are legal in this particular realm. Some are technical, like encrypt all the things. But what we really need is, frankly, people like Laura and others who continue to bring this to popular attention because that's how you get the political will.

Laura:

Yeah. I mean, I don't know political will. I guess my work is looking at the egregious violence and abuses of US empire, and I don't know that political will is going to provide any meaningful to somebody whose family has been killed in a drone strike. I think we, as a country, we need to reckon with those crimes.

Cindy:

Well, I think that's very fair.

Danny:

So there are some forms of state violence, state actions that have perceived as beyond the pale. And that doesn't mean that they don't happen. It means that they have to happen in secret. Right? So gas attacks, chemical weapons, all of these things. Do you think that there are certain forms of surveillance and mass surveillance that should be put into that category so that even states under the greatest kind of duress simply can't use that technology?

Laura:

Should these technologies be banned? Yeah. I mean, I think they've been abused. I mean, I don't think we need... I don't think they keep people safer and we shouldn't collect people's... We shouldn't do bulk, mass surveillance evidence free so that we can have big repositories in Utah. Yeah. I think that should end. It doesn't make anyone safer and it's absolutely been proven to be a violation.

Cindy:

Laura, I so respect that you're still in this fight and that you're continuing to look for ways to shine the light on the watchers. It is a joy and a pleasure to get to feel like we're in this fight together. And thank you so much for coming on and talking with us and giving us a little glimpse into where things have been and where they are now.

Laura:

Thanks, Cindy. And thank you for the work you all do at EFF.

Danny:

Thank you...

Danny:

Well, I think we have to admit on the show that some problems are harder to fix than others. And pervasive mass state surveillance is a huge problem, and we need a lot of political will and a lot of people working together to try and solve it. And can't just depend on the whistleblowers that Laura covers. And frankly, Laura's amazing work over 20 years to do this on its own.

Cindy:

But we also see that we can't solve the problems without having a good picture of the problems. And making these problems visible is what Laura has done so well for so long. We have a better understanding of the shape of surveillance based upon her work, both physically and what it feels like to be surveilled.

Danny:

One of the things that came out of just talking to Laura directly is how scary it is to be targeted in this way, how it impacts people's lives, and also the people around them. Again, the one thing that you have to keep conveying to people about the consequences of surveillance is that it's all very well to say that you have nothing to hide, but when you're spied upon, everybody that's connected to you gets spied upon. And if we don't push back, the most vulnerable people in society, the people that actually keep really massive violations of human rights and illegality in check, they're the people who get most affected.

Cindy:

And I think that Laura's perspective is always very international. And so we see how the problems of mass surveillance are really the problems of the way that nation states interact with each other and interact with people who criticize them. And so we can talk a lot about the United States and what the US does domestically to people like Laura.

But I think she always reminds us that people who are not in America, not in American systems are more targeted by these kinds of systems, and that the problem really does require an international focus and not just a US focus.

The other thing that became really clear is how much we need to protect whistleblowers, how much we need to lift the veil of secrecy, and make sure that you don't have to be a hero in order to be a whistleblower. You don't have to take extraordinary risks to be somebody who's pointing out where either a government or a powerful company is doing something that's wrong.

But it's also clear that we need non heroic people, too. We need people who aren't going to take those kinds of risks to be protected as well. And to be able to go about their day or to support this kind of change without finding themselves or risking that they're going to be targeted, too.

Danny:

We have to make fighting surveillance something that everyone can do, rather than relying on the people who put their lives at risk to illustrate it.

Cindy:

Well, thank you very much to Laura Poitras.

Danny:

If you've enjoyed this, please visit eff.org/podcast where you'll find more episodes. You can learn about the issues, and you can donate to become an EFF member and lots more.

Members are the only reason we can do this work. Plus you can get cool stuff like an EFF hat or an EFF hoodie, or even an EFF camera cover for your laptop.

Music for How to Fix the Internet was created for us by Reed Mathis and Nat Keefe of BeatMower. This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators. You can find those creators names and links to their music in our episode notes, or on our website at eff.org/podcast.

How to Fix the Internet is supported by the Alfred P. Sloan foundation's program in public understanding of science and technology. I'm Danny O'Brien.

Cindy:

And I'm Cindy Cohn.