Earlier this week in “The Flawed Logic of Secret Mass Surveillance” I presented some thinking about the dynamics of mass surveillance and what that suggests about how things are likely to play out in the future with regards to the NSA’s spying. It seems to me that there’s an essential structure to privacy that is reminiscent of game theory. And this could provide additional hints about how things are likely to play out over the long term—especially with regards to spying among nations. As I wrote in the earlier piece, spying confers power over others, and it is in my interest to secretly observe you, and for you not to secretly observe me.
In particular, these circular incentives of spying create a structure of conflict that brings to mind the canonical “game” of game theory: . The Prisoner’s Dilemma is a theoretical situation in which two criminals are arrested and interrogated separately, and must each choose whether to confess.
- If A and B both confess their crime, each of them serves 2 years in prison (lose-lose)
- If A confesses but B denies the crime, A will be set free whereas B will serve 3 years in prison, and vice versa (big win, big lose)
- If A and B both deny the crime, both of them will only serve 1 year in prison (win-win)
If we take two parties—let’s say two nation states for now—the situation is in many ways parallel:
- If nations A and B both decide to spy on each other, both parties pay the budgetary and diplomatic and possibly public relations costs of doing so, while likely gaining little net advantage over time (lose-lose)
- If A refrains from spying on B, but B spies on A, then A will be placed at a significant advantage and B at a significant disadvantage in relations between the two, and vice versa (big win, big lose).
- If A and B both refrain from spying, then neither will incur either the costs or the advantages of spying (arguably win-win).
The Prisoner’s Dilemma has formed the basis of much of the mathematical discipline of game theory. (This is an area in which John Nash, by Russell Crowe in the movie A Beautiful Mind, did pioneering work. My knowledge of this comes from a , “The Prisoner’s Dilemma,” by William Poundstone, which I highly recommend.) Many real-world studies and theoretical analyses have been done of the game, and the conclusion that mathematicians have reached is that the most theoretically rational thing to do within a round of the game is to betray the other person (i.e., confess). In my parallel, that would be: spy.
Interestingly, however, that changes when the game is played over and over again against the same opponent, in what is called “iterated Prisoner’s Dilemma.” In that situation, even mutually anonymous, online human players of the game, after an initial unstable period of mutual and one-sided betrayals, usually end up groping their way over time to a strategy of consistent mutual cooperation—a “cooperative equilibrium.” And in computer Prisoner’s Dilemma contests, the optimal strategy is to cooperate with the other person in the first round, and then to imitate their move in each round thereafter (a strategy dubbed “tit for tat”), which produces the same cooperative outcome against any opponents utilizing the same—optimal—strategy.
You can see where I’m going with this: if we view privacy as a game-theoretical situation in which mutual betrayal is punished, mutual cooperation rewarded, and one-sided betrayal rewarded even more, that suggests that the leading nations of the world will, over time, reach a cooperative equilibrium in the area of surveillance. After a period of trying to one-up one another, they will over time gravitate towards, and eventually settle upon, on the collectively optimal strategy, which is to not spy on each other at all.
Perhaps we are seeing the earliest signs of such a dynamic in the issued yesterday by the president’s NSA advisory panel. The panel suggested that with respect to “closely allied governments,” the government should explore “understandings or arrangements regarding intelligence collection guidelines and practices with respect to each other’s citizens.”
All of this would only apply in the absence of any persistent technological advantage by one party or another, which would disrupt the game-theoretical structure of the situation by tilting the “game.” Clearly the United States possesses such an advantage at the moment. But as I argued in my recent piece, such an advantage is not likely to persist for us now, or for any party in the future.
So far I’ve confined this discussion to the dynamics of how surveillance plays out among nation states. When it comes to relations between individuals, cooperative equilibrium is probably reflected in the intricate manners, social norms and legal rules that we already have around privacy. Although each person stands to gain important insights from spying that can give them a leg up in social, professional, or other contexts, we long ago recognized that it is better if we all refrain from attempting to do so. And so many forms of spying among individuals (electronic eavesdropping through the planting of bugs, for example) are illegal, and socially, at least, “gentlemen don’t read each other’s mail.” Which is not to say there aren’t betrayals, and technological means that everyone uses to help protect privacy; life will always be complicated, but I think that cooperative equilibrium is part of the underlying logic of the situation, and it can help illuminate where we are and where we are likely to go.
When it comes to relations between individuals and the state, there can be no game-theoretical analysis, because the parties are far too unequal in power for there to be anything resembling a game. Instead, in a democracy, the theory is that the people collectively have the power to decide how much power the state shall have over them individually. In the case of mass spying, we’ll have to see how that works out.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.