2014 Commencement Address
The 48th Commencement of New College of Florida
I’m honored to be speaking here at a place where I grew up, here by the bay, and also under the stars and trees in Palm Court.
It was actually the walkway overpass over Highway 41 that got me thinking about systems of power and when they cross the line into oppression. That overpass might be the reason I studied political science here, and the reason why I’m butting my head against the NSA and the government industrial surveillance complex today.
When New College got started, if students wanted to go from the Pei dorms to the bay side of campus, you’d have to go cross Highway 41 with all the cars zooming by. But a few years before I arrived in 1986, the school built the overpass we have today so that students could avoid that danger. Unfortunately, that didn’t work the way they expected. The administration found that students were climbing up the railing to get on the outside of the overpass, clinging onto that chain link gate and balance beaming it across.
Before I go on, let me make something clear. This is a Very Bad Idea.
So the summer before I arrived, the powers that be arranged for some big spikey trees to be planted right at the start of the overpass wall.
Because of those trees, I never imagined climbing on the overpass. The path to that option—both my ability to see and imagine it, and my ability to physically do it, was, by design, cut off. I only knew about it because other students mentioned it. Without any fanfare, without imposing any explicit rules, the administration made sure no one climbed on the overpass anymore.
And that got me thinking about power. I thought I had choices, cross the street or take the overpass. But those choices were constrained by decisions that had been made on high, and that were invisible to me. There was another, hidden choice, to take your chances on the overpass, but we couldn’t even imagine those possibilities any more. That was for the best. But the point was, a decision had been made for us and WE DIDN'T EVEN KNOW.
As my thesis advisor, Gene Lewis, used to pithily quip to our class on Organizational Theory: “You think you’re free because you have a choice between chocolate, vanilla, and strawberry.”
This power play was so clear to me, because there was a stark contrast, over at the swimming pool. At the pool, there was a sign on the wall that said “No Riding Bikes Off Of High Dive”. It would never have entered my mind that that was something to do. But there was a rule against it. And so now I knew. And I felt oppressed. The fact that the powers that be had denied me a choice could not have been more clear.
I saw two models of power. The tree that intentionally constructed my behavior in socially preferable, safer ways without my even knowing it. And the pool sign that explicitly demanded obedience, that threatened punishment, but left open the possibility of choosing rebellion.
What I’ve found is that many of the difficult questions I have to answer now that I’m an adult are made more difficult by the subtle ways in which each exercise of power limits the public’s ability to find and choose the right thing to do.
One of New College’s mottos is “each student is responsible in the last analysis for his or her education.” Taking responsibility for myself here at school helped me take responsibility for my career later on. After law school, I never went to work for a law firm like most law graduates do. I didn’t want to work on those kinds of cases and I didn’t want to live that lifestyle.
When I first left law school, I worked for the California State Public Defender, representing inmates on death row. I hate the death penalty. It is the ultimate expression that nothing about us is sacred or safe from institutional power. But, even though I was doing what I thought was the most important work I could do, I just couldn’t do that job. Every day I’d write requesting school transcripts, health records, arrest reports, trying to build through documents a comprehensive social history of my client that we could use to argue for undiagnosed mental illness or something else that would save him from execution. It was incredibly painstaking, and someone’s life was on the line. It was both achingly boring and existentially terrifying. So, I had to admit that I was not well suited for what I thought was the most important work one could be doing, and find something else to do. At the time, that felt selfish, especially considering the work I was abandoning. But I realized, there are other important things to do, actually, millions, and at least some of those would be better suited to my skills and, yes, my happiness. It turns out, work is really, really important. But it isn’t everything.
So I had to find something else to do. I figured that I would do criminal defense trial work, but jobs at the public defender’s office were hard to come by. So I had to learn on my own. To do that often worked for free on the stuff that I was interested in, just to get some skills.
One of my biggest cases, literally, was related to Critical Mass. Critical Mass is a last Friday of the month thing where bikes would gather at a plaza in cities around the country and ride in a group. The motto was We Are Traffic. And the goal was to get bikes equal treatment as cars, and to help make the streets safer for cyclists. In San Francisco, where I live, the events had been getting more contentious, with bicycle traffic blocking cars and riders getting into altercations with drivers. So in June of 1997, Willie Brown, the San Francisco mayor, had said there would be no more Critical Mass. This edict from on high was like the sign at the pool. But how can you stop people who just happen to all be riding their bikes together?
The weather was uncharacteristically great on the last Friday in June and over 5,000 cyclists came out and flooded the streets. It was berserk. It was awesome. No cars could move for hours. At one intersection, the police tried to clear it and arrested about a hundred people. At other parts of the ride, a few people got into physical fights with the cops and got arrested.
So I volunteered to be pro bono legal counsel for all the people who got arrested. But these were bicycling zealots and I could barely ride. I remember parking three blocks away from the San Francisco Bike Coalition office and hiding my keys, so no one would know I drove! Eventually, with the help of a few other attorneys, we got all charges against approximately 100 people dismissed.
It’s really fun to win. But more importantly, I realized I liked helping because the bikes were telling us something. They were saying, you think this has to be a city of streets clogged with honking, smoggy cars. But it doesn’t. It could be a quiet, fresh city of rolling bikes. There’s more to life than chocolate, vanilla, and strawberry.
And today, in San Francisco, there is. San Francisco’s Market Street is closed to through traffic, but not to bikes. And major thoroughfares now have huge green bike lanes. It took 15 years, and it involved both defying the mayor and working with the political establishment. And San Francisco is all the better for it.
We also have an artisan ice cream place down in the Mission District that makes a flavor called Secret Breakfast. It’s bourbon ice cream with corn flake cookies in it. Yes, eventually, things change for the better.
As part of my learning curve, I would talk to older attorneys in court, and agree to do routine appearances for them. Eventually, one of the men I was doing court appearances for hired me full time, and encouraged me to develop a more lucrative white-collar specialty, I picked computer crime because I thought computers were cool. I volunteered on a couple of multi-defendant computer crime cases. The older attorneys, mostly men, saw an opportunity to leave the office earlier by pushing off all the work on me. So, I did the research, wrote the briefs, and they put their names on the work and they got paid.
My law school friends who were also young and looking for work thought it was demeaning to work for free. They would not have let the other practitioners on the defense team push all the work on them. I saw their point. As a young woman, it could feel particularly insulting to do everyone’s dirty work, like I was the secretary or associate, and not an equal. But as a result, I learned. When I was done, I knew how to run a big case. I knew more about computer crime law than everyone else. I knew who to ask if I needed help. And everyone on the team knew that I was the one who knew what she was doing about computer crime law. I got known for computer crime, and I got referred a lot of cases.
Now, I’m not going to tell you that you don’t need to worry about money, do what you love, and it will all come out okay. I know I was lucky. My parents were working, and self-sufficient. They paid for my education here, so I only had law school debt. They were a safety net for me. So I could afford to take some risks, and I did. I knew my limits and I found a path to where I wanted to go. Not everyone can make the same choices.
But what I am saying is in the beginning of your career, you work the longest hours for the least money and the least recognition. You’ll get assigned the lamest work, and have to jump when your bosses call. Take these assignments strategically and with good humor. Paying your dues is the way to learn, and to make a name for yourself. Practice self-respect, but do not be proud.
It’s good I didn’t need a lot of money, because it turned out computer crime didn’t really pay. So much for a lucrative white collar specialty. But I stuck with representing computer hackers. These are people who are able to look around themselves and see possibilities that I do not see, and that the powers that be don’t want them to see. When that happens, the hackers are in legal danger.
In 2005, a 24-year-old guy named Michael Lynn worked for a company that studied Internet routers, the machines that carry and direct electronic messages from one place to another. In the course of Mike’s work, he found a way to shut down the most popular brand of router, Cisco, so that it could not be restarted. It was really innovative at the time for Mike to imagine that software security flaws happen not just in computer programs, but also in hardware.
His research was also a big deal because shutting down routers breaks the Internet. As Mike put it, he found a way to gain “World Domination.” People ought to know about this problem, he believed, so that they would update their router software, which was something that no one had any reason at the time to think it was important to do. So, Mike was going to speak to researchers at a big computer security conference in Las Vegas called Black Hat about the problem. Basically, he was going to say, you know guys, you can’t see it from here, but just on the other side of that spikey tree, there’s a path to World Domination.
Then his employer got cold feet. They had contracts with Cisco, and Cisco was pissed and leaned on them. So they decided to keep what Mike found secret. Mike was ordered to change his topic. In the days leading up to the conference, Cisco paid for all the Black Hat conference CDs with the presentation on it to be destroyed, and to have people literally rip out the 31 pages containing Mike’s talk from the Black Hat conference program book.
Mike thought keeping quiet was wrong. He was afraid that no one would know what he had found. He was afraid no one would know to update their routers, which they needed to do in case a real Black Hat hacker had found the problem too, and wanted to bring down the Internet, to gain World Domination. The Cisco flaw was too dangerous for people not to know about.
Once he was on stage, he pulled a white baseball hat out of his pocket and put it on. The hat said “GOOD” in black letters on it (Get it? White hat. Good guy.) There, before the audience, Mike quit his job, and gave the original talk, revealing this cutting-edge research and inspiring people to fix their routers. The talk was awesome.
But Cisco and his former employer were not pleased, and they sued him. Actually for copyright infringement, but that’s another story. They also sent the FBI to the conference to interview him. I rushed from dinner with my parents, who live in Las Vegas, to the Caesars Palace conference floor to interdict the FBI before they got to Mike. (Don’t talk to cops. But that’s another speech.) After three sleepless days and nights, we settled the case, and eventually convinced the United States Attorneys not to file charges.
What I usually remember of the experience is how stressful it was, how annoyed I was at copyright law, and how I missed dinner with my parents.
But when preparing for today, I remembered something else. I recalled the speech I gave a few days after the case had settled, at Black Hat’s sister conference, DEFCON, which is a true hacker conference, also held in Vegas, but at a much cheaper hotel off the strip. I was on stage, lecturing the audience about the finer points of intellectual property law, when suddenly three guys jumped on stage. They said, because of the work you did for Mike, we made this for you. And they draped this cape made from a jenky off-strip Vegas hotel shower curtain, around my shoulders, like I was some kind of superhero. It was very flattering. I almost forgot that. And if I didn’t still have this thing on my office bookshelf, I would have.
Don’t forget your successes. Hold them just as close and just as long as you do your failures and frustrations.
In 2001, when I decided to help start the Stanford Center for Internet and Society, I wanted a chance to help figure out what Internet policy should be in all kinds of areas. There weren’t a lot of laws about the Internet yet, there as tons of possibility. It was a world of chocolate, vanilla, strawberry, secret breakfast, froyo and who knows what else.
Five hundred years ago, Gutenberg and the printing press revolutionized human creativity and understanding. Humanity went from a world where scholars would travel miles to visit a library containing just a few hand-written volumes, to a place with approximately 15 million books in circulation in just about 42 years. That was amazing and wonderful, but it has nothing on the Internet. The commercial Internet is only about 25 years old and yet it has revolutionized our lives several times over. Google, Facebook, smartphones, and ubiquitous wi-fi are less than 15 years old. Some of the most popular services today didn’t exist 5 years ago, Vine, Snapchat, WhatsApp. People use the network to deliver pizzas in the suburbs and medical care in Africa. Nigerian mothers whose daughters have been kidnapped are using Twitter to wake up the world after the Nigerian government told them to be quiet and stop making the country look bad.
In sum, the Internet has been an unimaginable public good, increasing knowledge, interconnectivity, prosperity, education, political activism, creativity.
But it is also an unbelievable tool for government surveillance.
When you use the Internet, or mobile phones, or other interconnected devices, the machines send information about your usage to the entities that provide you with the service. Carrying a mobile phone means being able to get calls wherever you are on the planet … and revealing your physical location to the cellular service provider. When you log on to a digital network, the service provider assigns you an Internet protocol address, or IP address, which the network uses to route all your communications … and which others can use to track or identify you online. When participating in social networks, we choose to reveal personal information, whether photos, conversations, friend lists or the like, to our friends … but the service provider holds this information for us, and can look at it, or share it with advertisers or give it to the government.
There are also drones, facial recognition technology, automatic license plate detectors. Sensors are everywhere; what we do is increasingly observable.
Today’s graduates understand this reality and its ramifications better than we parents do. You were raised with the Internet, grew up with it in meaningful ways. You understand that society needs the Internet and privacy both. Not that many years ago, you might have put a sign on your bedroom door telling parents to keep out. You’re concerned about whether photos of you at the PCP will disadvantage you in the employment market. You look around you at the world that my generation and the generations before me have given you and whatever your issue—climate change, animal rights, poverty, the death penalty, immigration—you see the need for political activism, maybe even radical political change. You know that our world still needs the leadership of rabble-rousers like Cesar Chavez or Dr. Martin Luther King, Jr. and you know that powerful political players may wish to discredit or even imprison these leaders for fear of social change they demand. You understand why, even if you aren’t doing anything wrong, you still have reasons to need your privacy.
Yet, the U.S. government is taking strong advantage of new technologies by collecting billions of pieces of information on hundreds of millions of people, both Americans and non-Americans. This kind of mass surveillance was, until recently, technologically impossible or economically infeasible.
In the U.S., this surveillance can happen because a secret court convened pursuant to the Foreign Intelligence Surveillance Act has made secret interpretations of statutes and the Constitution. Some of these secret rulings have recently been declassified. These opinions defy common sense. For example, there’s a statute that lets the FBI collect business records if they are relevant to an authorized investigation. The NSA has been using that statute to collect every American’s domestic phone call records for the past seven years.
Many of the opinions are still top secret. The Fourth Amendment to the United States Constitution says that the people shall be free from unreasonable searches and seizures. I’m a Fourth Amendment scholar, but if you ask me whether and how the Fourth Amendment protects Internet messages, I have to say, despite 21 years in this business, I don’t know. There are court opinions controlling the government’s access our online communications, but neither I nor anyone outside the government has ever seen them.
It’s like there is a sign with the rules on it: The Fourth Amendment, and the surveillance statutes. And the public thinks those are the rules. We argue over whether those rules are good or bad for freedom. But those aren’t the real rules. Actually, elsewhere, are written down other rules—secret ones—that are the ones that really matter. But we didn’t even know to look for the real rules, because who would have imagined that the rules on the sign, the ones we are fighting about aren’t the real rules. Behind the spikey tree, other rules are hidden.
The idea of secret law in a democracy offends me. But this isn’t just about the rules. We do not know how the government might use the vast quantities of information in its possession to structure our reality without our even knowing it. When the FBI bugged Dr. King’s hotel rooms, it discovered evidence of extramarital affairs. It then wrote him (and his wife) a blackmail letter threatening to inform the public if he didn’t – well, if you read the letter, which is in the Library of Congress, it looks like they are telling him to kill himself.
Today, the U.S. government would have access to even more information about MLK, his friends, family, and associates. With that information, we can blackmail people into silence, turn them into informants, single them out for prosecution. No government should accumulate so much information that it could easily decide to discredit people whose ideas it fears.
Now that the public is beginning to know the truth, we have so many important, difficult choices to make. When do systems of power make liberty possible and when do they cross the line into oppression? How should we combat terrorism? How much surveillance and how much secrecy are compatible with democracy?
Class of 2014, now you get to decide how to make the world a better place. In some cases, you’ll find that the solutions have been constrained by invisible decisions that have been made behind closed doors, and you’ll have to imagine what possibilities lie beyond these spikey trees. In others, you’ll find explicit limitations enforced by the full power of the state, which you may nevertheless need to rebel against, the pool signs. Butt heads in any one of the many good fights that need you. Don’t be afraid to fail, but hold your successes closer. Try a lot of different flavors of ice cream. We’ve been waiting for you. We need your intelligence, energy, optimism and perspective on problems that have thus far been intractable to my generation.
Today, with your graduation from this wonderful school, the world has become a better place. Congratulations and welcome aboard.
Jennifer Granick ('86) lives in San Francisco and is the Director of Civil Liberties at the Stanford Law School's Center for Internet and Society (CIS). Jennifer practices, speaks and writes about internet law, computer crime and security, electronic surveillance, and hacker rights. From 2001 to 2007, Jennifer was Executive Director of CIS and taught cyberlaw, computer crime, Internet intermediary liability, and Internet law and policy. Then she spent three years at the Electronic Frontier Foundation and a year at the D.C. based firmZwillGen before returning to Stanford Law School. Before teaching at Stanford, Jennifer spent almost a decade practicing criminal defense law in California. She earned her law degree from University of California, Hastings College of the Law and her undergraduate degree in 1990 from New College in political science with Gene Lewis.