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Leading security and privacy researcher Bruce Schneier talks about about the golden age of surveillance and his new book, "Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World." The book chronicles how governments and corporation have built an unprecedented surveillance state. While the leaks of Edward Snowden have shed light on the National Security Agency’s surveillance practices, less attention has been paid to other forms of everyday surveillance — license plate readers, facial recognition software, GPS tracking, cellphone metadata and data mining.
Image Credit: United States Department of Defense
TRANSCRIPT
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: We turn now to look at what our next guest calls the "golden age of surveillance." The leading security and privacy researcher Bruce Schneier is out with a new book, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World. The book chronicles how governments and corporations have build an unprecedented surveillance state. While the leaks of Edward Snowden have shed light on the National Security Agency’s surveillance practices, less attention has been paid to other forms of everyday surveillance—license plate readers, facial recognition software, GPS tracking, cellphone metadata and data mining.
AMY GOODMAN: Just this week, The Intercept revealed CIA researchers have been working for nearly a decade to crack the security of Apple’s iPhones and iPads. Documents from Edward Snowden show the researchers claim to have created a modified version of Apple software development tool Xcode, allowing them to sneak surveillance backdoors into apps and programs.
Well, Bruce Schneier, author of Data and Goliath, joins us now from Minneapolis.
Bruce, it’s great to have you back with Democracy Now! Can you start off by talking about this latest revelation having to do with Apple iPhones and iPads?
BRUCE SCHNEIER: It’s not really new. We know that the NSA, now the CIA, have been working to find backdoors in the computers we use every day, in Windows, in Macintosh. This isn’t the first backdoor we’ve seen in iOS and iPhones. This looks pretty sophisticated, but this is pretty much what we should expect from the United States and other countries and criminal organizations, as well. There’s a lot of people trying to get backdoors into the devices we use.
JUAN GONZÁLEZ: What about this problem, in terms especially of commercial or corporate surveillance, that the public are willingly giving up their data in exchange for some kind of reduced price or more efficiency in their ability to communicate, this apparent willingness on our part to give away this trove of information about ourselves?
BRUCE SCHNEIER: I mean, we give it away all the time, right? Our cellphones know exactly where we are at all times; otherwise, they can’t work. And think of Facebook or email or paying with credit cards, or anything we do that generates data, we give to third parties. I mean, we do it willingly. I’m not sure we do it with full knowledge. You know, we don’t pick up our phones and say, "This is my tracking device. I’m going to carry it in my pocket." We just do that because that’s how the systems work. So when people are asked, do they value privacy, they say, yes, uniformly. And I think people really don’t think fully about what they’re giving up when they go onto Facebook or use Gmail or do any of these services where data is collected.
AMY GOODMAN: You write that "The powers that surveil us do more than simply store this information. Corporations use surveillance to manipulate not only the news articles and advertisements we each see, but also the prices we’re offered." Explain.
BRUCE SCHNEIER: Well, this is what we see. Companies are using surveillance for persuasion, for advertising. And it’s sliced very finely personally. The ads you see aren’t going to be the ads someone else sees, based on your interests, but also based on what the companies believe is your income level, how good a customer you are. You’re going to see different search results than somebody else. So, depending on your political persuasion, you’ll see different advertisements. You’ll see different offers. So you might get a different credit card offer than someone else. And that might be based on your income, on proxies for your minority status. We see a lot of this very personalized advertising designed to influence you and you alone.
JUAN GONZÁLEZ: And how do you respond to those, especially in government, who say that this surveillance is needed to be able to combat modern crimes, terrorism? For instance, all of Lower Manhattan right now is—basically, there are surveillance cameras that capture every single license plate coming into Lower Manhattan for the New York Police Department.
BRUCE SCHNEIER: There are license plate scanners all over the country. It’s surprising how much of that is captured, not just in New York. But there are companies collecting license plates, looking for cars for repossession, sharing it with the government, with Homeland Security. You know, we hear a lot about this is necessary for security. All the evidence shows it’s not. I mean, there isn’t a huge crime wave of unsolved crimes because of no surveillance. And there aren’t a lot of crimes being solved by this surveillance. Crimes are solved by following the leads. That’s how terrorism plots are foiled. Whenever we ask the government, ask the police or the NSA to show how this surveillance is necessary, they can never come up with good examples. Occasionally they come up with examples that don’t pass scrutiny. But this really does seem to be we’re collecting it because we can, not because we need to.
AMY GOODMAN: Can you compare government surveillance with corporate surveillance?
BRUCE SCHNEIER: You know, they’re very similar. And I look at it as a partnership, the public-private surveillance partnership. One is caused by fear, right? We fear criminals, we fear terrorists. That’s government surveillance. The other, as you said, it’s convenience. We like the iPhone. We like this free services we get. They both collect data, very intimate data—where we live, where we work, what we’re interested in, what we’re saying, who we’re speaking to, who we’re intimate with. And they share it back and forth. Data that’s illegal for the government to collect, they purchase from corporations. Corporations purchase data from the government. It goes into databases in the United States. It’s bought and sold. And profiles are generated. And those profiles are used, in both cases, to pigeonhole us, to make decisions about us, maybe whether we can get a mortgage, maybe whether we can board an airplane, maybe what sort of credit card offer we see. They’re all used to judge us. And in all cases, we don’t have the ability to look at the data, to correct the data, to see why we’re being judged and how we’re being judged. We’re being judged in secret.
JUAN GONZÁLEZ: Well, last month at a New America Foundation event on cybersecurity, you questioned NSA Director Mike Rogers on the security of U.S. encryption programs. Let’s go to that clip.
BRUCE SCHNEIER: My question is also about encryption. It’s a perception and a reality question. We’re now living in a world where everybody attacks everybody else’s systems. We attack—we attack systems. China attacks systems. And I’m having trouble with companies not wanting to use U.S. encryption because of the fear that NSA, FBI, different types of legal—legal and surreptitious access is making us less likely to use those products. What can we do, what can the intelligence community do, to convince people that U.S. products are secure, that you’re not stealing every single key that you can?
MICHAEL ROGERS: Right, right. So, first of all, we don’t. Number two, my point would be, that’s the benefit, to me, of that legal framework approach, that, hey, look, we have specific measures of control that are put in place to forestall that ability. Because I think it’s a very valid concern to say, "Hey, look, are we losing U.S. market segment here?" You know, what’s the economic impact of this? I certainly acknowledge that it’s a valid concern. I just think, between the combination of technology, legality and policy, we can get to a better place than we are now, realizing that we are not in a great place right now.
JUAN GONZÁLEZ: What about that response of the NSA director, Mike Rogers?
BRUCE SCHNEIER: Yeah, I think he’s being disingenuous, that he’s saying that some rule of law will convince people the NSA isn’t collecting data. But the rule of law says, outside U.S. borders, it’s a free-for-all. He can collect anything he wants. He’s gone into the links between Google data centers and scarfed up everything. And the problem we have is that foreign companies, foreign buyers, aren’t trusting U.S. products because of the backdoors he is putting in them. And my question was: How can we fix that? And his answer didn’t answer that. Rule of law, you know, doesn’t give people from other countries assurance that we’re not spying on their stuff.
JUAN GONZÁLEZ: I wanted to ask you about one of the startling analogies you make near the end of your book between what’s happening in this information age and the early Industrial Revolution. You made an analogy with climate change. You wrote, "Data is the pollution problem of the information age, and protecting privacy is the environmental challenge. Almost all computers produce personal information. It stays around, festering. How we deal with it—how we contain it and how we dispose of it—is central to the health of our information economy." You go on to say, "Just as we look back today at the early decades of the industrial age and wonder how our ancestors could have ignored pollution in their rush to build an industrial world, our grandchildren will look back at us during these early decades of the information age and judge us on how we addressed the challenge of data collection and misuse." Could you expand on that?
BRUCE SCHNEIER: Yeah, I think it’s an important analogy. We’re sitting here discussing the data we produce, the data our computers produce, what happens to it, who has access to it, how we recycle it, how we dispose of it. These are really important problems, and they’re not things we’re going to solve overnight. And my fear, in that paragraph you read, is that it’s going to take a couple of generations to figure it out, that here we are, producing this data—this big data land grab, to access it all, to analyze it all, to use it all, is not being buffered by a sense of privacy, of the personal nature of it. And I was, I guess, issuing a warning, that maybe we could do better, that maybe we could think ahead as to the problems and really consider where data should be used, where it should be disposed, how personal it is, and how you can’t just give it to third parties for free, that there is a fundamental rights issue here.
AMY GOODMAN: So, governments tell us, "If you have nothing to hide, you have nothing to fear." Why should you be concerned about government surveillance, Bruce?
BRUCE SCHNEIER: Well, I mean, that’s ridiculous on the face of it. Those same government officials who say that don’t tell you all of their secrets, give you copies of all of their emails and correspondence. Privacy is not about something to hide. Privacy isn’t something that you only have if you’re a criminal. Privacy is about individual autonomy. It’s about presenting yourself to the world. It’s about being in charge of what you say about yourself and what you reveal about yourself. When we’re private, we have control of our person. When we’re exposed, when we’re surveilled, we’re stripped of that control, we’re stripped of that freedom. We don’t feel secure. We don’t feel like we have something to hide. We feel like we’re under the microscope. We feel like prey. Privacy is a fundamental human need, and it’s not about something to hide. I think that’s a very wrong characterization, and we should fight it at every opportunity.
JUAN GONZÁLEZ: But what can people do? What are the options for those who don’t want to go with the tide?
BRUCE SCHNEIER: Yeah, this is very difficult. I mean, I can tell you things like don’t carry a cellphone and don’t use email, don’t be on Facebook. In a lot of ways, that’s ridiculous advice. Those are the tools of society, and we need them to be fully functioning members of society. At this point, the problems are political and social, and we need political change. What people should do now is observe surveillance and talk about surveillance. This needs to be an issue in the next election. This needs to be an issue people care about it. And the more we talk about it and make it an issue, the more we’ll get change. Right? Admiral Rogers is not going to do anything unless he’s required by law. And we need laws to protect us against government surveillance and against corporate surveillance.
AMY GOODMAN: The L.A. review of—the L.A. Times review of your book says that you were given access to the Edward Snowden documents. You have a special position to explain complicated, highly secret surveillance programs to the American public. What should we know? What should we be aware of?
BRUCE SCHNEIER: The documents in the stories are really explaining themselves, that the NSA is collecting everything, everything they can, under a variety of laws that have been bent beyond their intention. Data is being collected on non-Americans and Americans. It’s being saved and stored and used. And we don’t know a lot of the details. This is being done in highly secretive situations. There are secret courts passing secret rules that affect companies and us, and we don’t get to know about them. I mean, what Snowden showed us is that this is all happening by the U.S. What we need to understand is that this is not just the U.S. China, Russia, other countries are doing the same things. And we need to look at this and decide what we want. The NSA is filling a vacuum by collecting everything. We need to step in and put rules in place.
AMY GOODMAN: And what most surprised you? You’ve been looking at this for decades, Bruce Schneier. What most surprised you in your research for Data and Goliath?
BRUCE SCHNEIER: You know, the most surprising thing about the NSA surveillance is how little is surprising about NSA surveillance. There was nothing in there that said the NSA is made of magic. There’s nothing in there that, if you watched a movie where the villain was the NSA, they didn’t do. It’s pretty much what you expected. But seeing it in stark reality is surprising, seeing the details of NSA programs, of FBI collection programs, of these license plate capture programs, or what the data brokers know. The sheer detail, I think, is surprising, because while we recognize this data is being collected, we often don’t understand the analysis. And that, I think, surprises most people. That surprised me.
AMY GOODMAN: Do you think political liberty and justice are threatened?
BRUCE SCHNEIER: I think they are. I think we’re living in a world where we are being judged by our data, we’re being judged in secret, where there are effectively secret courts. I mean, if you can’t fly an airplane, you can’t figure out why you can’t or how to redress that. If you’re denied for a mortgage, or possibly a job, it could be because of this data. And you can’t face your accuser and try to protect yourself. These are extraordinary times, and I think the threats are great, because algorithms are making decisions, not people, and that’s very dangerous.
AMY GOODMAN: Well, Bruce Schneier, we’re going to continue our conversation outside of this broadcast and post it online at democracynow.org, particularly how people can protect themselves. Bruce Schneier is a security technologist. His latest book, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World. He’s a fellow at Harvard’s Berkman Center for Internet and Society.
Five years ago, the U.S. Supreme Court handed down its Citizens United v. FEC decision striking down the prohibition on corporate expenditures in federal elections. In a 5-to-4 decision, the Supreme Court ruled that corporations are people, with the same right to influence politics as voters. Meanwhile, many corporations including McDonald’s, Monsanto and Peabody Energy have cited the principle of corporate constitutional rights in recent efforts to fight back against new laws. McDonald’s and other franchises are suing the city of Seattle over its new $15-an-hour minimum wage law, arguing it violates its corporate personhood rights. They are basing their case on the 14th Amendment, a constitutional provision written to protect newly freed slaves after the Civil War and ensure equal rights for all people. Monsanto is challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming that it forces them to "speak" against their will. We host a debate on the movement to draft a constitutional amendment to overturn the doctrine of corporate constitutional rights with two guests: Ron Fein, legal director at Free Speech for People, and Kent Greenfield, professor of law and Dean’s Research Scholar at Boston College Law School.
Image Credit: Reuters
TRANSCRIPT
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: Five years ago, the Supreme Court handed down its Citizens United decision striking down the prohibition on corporate expenditures in federal elections. The court’s 5-4 decision opened the floodgates for corporate and undisclosed dark money to pour into the election process. According to the Center for Responsive Politics, the number of donors giving more than $1 million to outside groups during elections has grown from two in 2006 to 84 in the 2014 congressional elections. The right-wing Koch Brothers have pledged to use their network of conservative advocacy groups to spend a staggering $900 million in advance of the 2016 presidential election.
AMY GOODMAN: In the Citizens United case, the Supreme Court ruled corporations are people, with the same right to influence politics as voters. Meanwhile, many corporations, including McDonald’s, Monsanto and Peabody Energy, have cited the principle of corporate constitutional rights in recent efforts to fight back against new laws. McDonald’s and other franchises are now suing the city of Seattle over its new $15-an-hour minimum wage law, arguing it violates its corporate personhood rights. On Tuesday, the International Franchise Association told a federal judge that the law unfairly discriminates against franchise owners by treating them differently than local small business proprietors. They’re basing their case on the 14th Amendment, a constitutional provision written to protect newly freed slaves after the Civil War and ensure equal rights for all people. Monsanto is challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming it forces them to speak against their will.
Today we host a debate. Joining us from Watertown, Massachusetts, is Ron Fein, legal director of the organization Free Speech for People, which backs a constitutional amendment to overturn the doctrine of corporate constitutional rights. And in Boston we’re joined by Kent Greenfield. He’s a professor of law and Dean’s Research Scholar at Boston College Law School. He recently wrote a piece for The Washington Monthly called "Let Us Now Praise Corporate Persons."
We welcome you both to Democracy Now! Ron Fein, let’s begin with you. Explain what is meant by "corporate personhood."
RON FEIN: Well, thank you, Amy and Juan, and thanks also to Professor Greenfield, who I do have great respect for as an expert in state corporations law. But we’re talking now about the Constitution.
The idea of a corporate personhood is a doctrine that comes out originally of state law, and it enables a corporation to have some of the legal rights of people when we deem that it is appropriate for them to do so. So, for example, a corporation can own property, sell property, sue and be sued. And that’s all good. But when we’re talking about the Constitution, that metaphor of the corporation as a person becomes extremely dangerous, because it leads to fuzzy thinking. And that’s why we see things like the Equal Protection Clause cases, where corporations are claiming that regulations about the minimum wage that treat certain types of corporations differently from others are a form of discrimination that we should be concerned about. And similarly, under the First Amendment, we see also corporations using the metaphor of personhood to refuse to speak, as if they were a dissenting religious minority, when what’s being asked of them is to disclose information about what’s in the products that they sell.
So when you take that metaphor of corporate personhood from its origins in state law and you transpose it onto the Constitution, it becomes extremely dangerous. And that’s why we’ve seen a sustained and renewed assault on laws, ranging from minimum wage to genetically engineered food disclosure, to disclosure of products coming from war-torn regions of Central Africa, to a St. Louis, Missouri, ballot initiative that seeks only to end public tax breaks for fossil fuel producers and is also being challenged as violating the Equal Protection Clause.
JUAN GONZÁLEZ: Well, Kent Greenfield, could you lay out why you believe that expansion of corporate personhood would actually bring more accountability by corporations?
KENT GREENFIELD: Sure, Juan. And again, thank you for inviting me on. And again I will say hello to Ron Fein, whose work I respect quite a bit.
So, I think—first of all, I should say that I think the examples that you raised so far in this segment about the Seattle minimum wage and some of the forced disclosure laws, I think the corporations should lose in those cases. My point is that corporate personhood is often misunderstood. And Ron is correct that, for the most part, corporate personhood is simply just another way of saying that corporations ought to be separate legal entities—and that’s a wonderful thing. It bolsters the ability, the legal ability, to hold corporations accountable. Think about the BP oil spill from several years ago, 2010. If the corporation itself was not a legal entity, it would be hard to hold anybody accountable. It would be hard to hold—the individuals involved certainly don’t have deep enough pockets to pay back the horrible damage that was caused there.
I think where Ron and I would disagree is that whether corporations should be able to assert—ever assert—any constitutional rights. And I think that some constitutional rights some of the time are appropriate for corporations to assert. And the easiest example is, of course, media corporations. The New York Times, a media conglomerate, certainly ought to have First Amendment rights. That’s an easy case. I think the harder cases are what to do about election spending and the like. And in those cases, I think, as Amy suggested at the beginning of the segment, I think the torrent of money going—independent money going into politics these days is a danger to democracy. But I think the money—the danger is money, whether it comes from corporations or individuals. And most of the money that we’re seeing, actually, in politics these days is coming from rich individuals, not corporations.
AMY GOODMAN: So, what you’re really debating is whether a constitutional amendment should be put forward. But before we talk about that, I wanted to ask Kent Greenfield, on this issue, for example, of the suit that was heard this week, explain what’s happening. Why is McDonald’s, the other corporations, Comfort Inn, Holiday Inn—why are they suing Seattle over Seattle’s minimum wage hike to $15 an hour? Explain what it’s all about.
KENT GREENFIELD: Actually, I don’t—actually, I don’t know. I’ve heard about that case, but maybe Ron Fein knows more about it.
AMY GOODMAN: Ron Fein, if you know?
RON FEIN: Yes. Thank you. I’d be happy to explain. We filed a friend-of-the-court brief in that case. The claim that is being brought by the International Franchise Association against Seattle’s new $15-an-hour living wage law is that the schedule for implementation treats franchise businesses unfairly because it phases them in at a different schedule than local small businesses, so they have to comply with the law at a different time. And the reason for that was the Seattle City Council studied the issue, and they determined that, for example, a McDonald’s restaurant with 50 employees is not really comparable to a small independent restaurant with 50 employees, because it gets the benefits of coordinated marketing and advertising and product development and bulk purchase agreements that an independent restaurant doesn’t get. That’s the basis for their claim.
Now, they’ve challenged the Seattle living wage law under a whole kitchen sink of theories. One of them is the Equal Protection Clause. And that clause is part of the 14th Amendment, which was designed to protect the rights of the freed slaves after the Civil War. And it is good that the Equal Protection Clause has expanded in recent years to protect additional categories of people, like gay and lesbian Americans, as we’ve seen in the marriage equality movement, but it was never intended to protect corporations. And, in fact, our research has shown that the authors of the 14th Amendment in the 1860s, as Reconstruction was occurring in the South, were particularly concerned about whether the newly freed slaves were able to earn fair living wages. And the United States government took action, leading up to the 14th Amendment, to ensure that there were fair living wages available for the freed slaves as they continued working in the South.
So, the corporate claims under the Equal Protection Clause came from after the Civil War, when the Supreme Court determined, with no evidence or interpretation whatsoever, that when the Equal Protection Clause says that a state cannot deny the equal protection of the laws to any persons within its jurisdiction, that persons includes corporations. And the Supreme Court then used this as a tool throughout the Gilded Age, in the late 19th century and early 20th century, to strike down minimum wage laws, child labor laws and a host of other laws. And that continued until the New Deal, when, finally, FDR, with the public at his back, stood up to the Supreme Court, and the Supreme Court backed down. And that led to the postwar era of the 1940s, ’50s and ’60s, when corporations were not asserting any constitutional claims, by and large, and yet we had the greatest shared economic prosperity of this country in generations.
AMY GOODMAN: So McDonald’s is comparing itself to freed slaves.
RON FEIN: In essence.
AMY GOODMAN: And then, just the Vermont case, Monsanto challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming it forces them to speak against their will?
RON FEIN: Yes. This is a line of cases known as "compelled speech." And it starts with the 1940s, where the Supreme Court held that Jehovah’s Witnesses shouldn’t be forced to recite the Pledge of Allegiance against their will, because it violates their human dignity. In recent years, the courts have begun extending that same principle to corporations. But corporations are artificial entities created by state laws. They’re not endowed by their creator with inalienable rights; they’re endowed by state laws with specific rights provided in their charters.
But the courts have now been granting the right to avoid disclosure of product ingredients to corporations. And so, when Monsanto and other grocery food manufacturers are challenging Vermont’s law, saying that they do not wish to reveal whether their products contain genetically engineered ingredients or not, they’re actually standing on some recent Supreme Court First Amendment precedent that’s in their favor. And unfortunately, as our legal adviser, John Coates of Harvard Law School, has shown, in recent years there’s been a corporate takeover of the First Amendment, where an increasing percentage of the courts’ First Amendment dockets are occupied now by corporate claims of this type.
AMY GOODMAN: Well, Ron Fein and Kent Greenfield, we have break. We’re going to come back to our discussion and focus on the constitutional amendment movement, how that would affect corporations and regular everyday people. This is Democracy Now! We’ll be back in a minute.
[break]
AMY GOODMAN: Our guests are Ron Fein, Free Speech for People’s legal director, and Kent Greenfield, professor of law and Dean’s Research Scholar at Boston College Law School. Juan?
JUAN GONZÁLEZ: I’d like to ask Kent Greenfield, on the issue of the criminal justice system, a person commits a crime, they go to jail. A corporation commits a crime, it gets a fine. Or, I mean, a corporation can’t be jailed. Could you talk about, in terms of criminal justice—you blow up—a factory blows up, and you kill several of the workers. Or a mine, there’s a mine accident, and your negligence results in the deaths of several of your workers. Nobody goes to jail, in terms of a corporation.
KENT GREENFIELD: Right, it’s just the nature of the entity. Sometimes responsible individuals within the corporation are held accountable. And let me speak to the Seattle cases and the Vermont cases that Ron Fein had talked about before, too. I think the corporations ought to lose both of those cases. I think where we differ is that I don’t think that it’s impossible to imagine a situation where corporations ought to be able to raise some kind of constitutional right. So, for example, if corporations do not have a right to be free of compelled speech, one can imagine all kinds of bad laws being passed forcing corporations to say things—you know, fly an American flag when they don’t want to, or post a photograph of the president as you enter a workplace. But I think—so, I think where we differ, and even on the criminal justice thing, I think what we need to take into account is that some constitutional rights make sense to apply to corporations, and some do not. The right to be—to have due process in the criminal justice system, if corporations don’t have that right, then their ability to make money, to create wealth of the rest of us, will be endangered. Nobody would invest in them. And we’ll remember that constitutional rights are simply another way of saying that government power should be constrained. And if no corporation can assert the right to free speech or even equal protection in any situation, then the government can really act willy-nilly toward those corporate entities, and that would be a bad thing.
AMY GOODMAN: Ron Fein, can you explain the constitutional amendment movement? What constitutional amendment is being proposed?
RON FEIN: Yes, thank you. There are two constitutional amendments that we at FreeSpeechForPeople.org and other allies in the field are promoting. One is called the Democracy for All Amendment, and that would overturn the Supreme Court’s campaign finance decisions. So that would enable local, state and federal government to set limits on spending money and raising money to influence elections. The other constitutional amendment that we’re promoting is called the People’s Rights Amendment, and that would clarify that the rights in the Constitution are rights of natural persons, not corporations.
Now, that doesn’t mean that there will never be a case where a corporation can come into court asserting the rights that belong to natural persons. The problem is, the way the Supreme Court has it set up right now is that corporations are always assumed to be asserting rights that ultimately belong to actual people. A corporation can just waltz into court assuming it has a constitutional right, and it might win or lose on the details, but no one questions whether it has the right. What our amendment would do is it would force the courts to do a two-step analysis. The first step would be to say, "Who are the actual people who are being affected by this law, and do they have a constitutional right at issue here?" The second step would be to say, "Do those people have a constitutional right to use the corporate tool to exercise that right?" And so, what that would mean is that we would have to look behind the corporate form to say, "Are there actual people here whose rights are actually being violated?" And that would change the entire discourse that we’ve been having.
And in terms of the question about corporate crime, I think that there are two things that need to happen. One, we need to have continued individual responsibility. White-collar criminals should be prosecuted more than they have been. But also, it is in fact true that a corporation can get the death penalty. Every state of the union has some provision for revoking corporate charters. And these powers belong usually to the attorney general of the state. They’re not often used nowadays. But at FreeSpeechForPeople.org, we are very shortly going to have on our website a model corporate charter revocation law that would provide that when a corporation has committed repeated multiple felonies within a short period of time, then its corporate charter can and should be revoked.
KENT GREENFIELD: So, one thing that I would say with regard to the People’s Rights Amendment is that the two-step analysis that Ron Fein is suggesting would not change the outcome in Citizens United itself. The court did not—in that case, did not say that Citizens United, the corporate entity, had rights that were violated. What it said was that Citizens United was an association of citizens, and in constraining that organization’s ability to publish its—to release its movie, it was violating the rights of its members. And so, the People’s Rights Amendment would not change the effect—the outcome in Citizens United itself, which is bizarre to think that all this effort is being put forth to pass an amendment that wouldn’t change the outcome.
JUAN GONZÁLEZ: And, Kent Greenfield, could you talk about the Hobby Lobby case and how that affects the discussion, the debate on the issue of corporate personhood?
KENT GREENFIELD: Right, so Hobby Lobby was this case that came down last year, where a group of evangelical Christian shareholders own a privately held arts and crafts retailer in the Midwest—many of your listeners and watchers will know it—and they were asserting religious freedom rights to be free of Obamacare’s requirement that they provide their employees with contraceptive services within their healthcare plan. And there was a group of corporate law professors, sort of left-of-center corporate law professors—and I was one of them—who wrote an amicus brief to the court that said, really, the answer to this question depends on corporate personhood, because if you see the corporate entity as a separate entity, as a corporate person in and of itself, then it cannot borrow the religious freedom interests of the shareholders. And what the problem in that case, when the Supreme Court held in favor of the corporation, was that it neglected and ignored corporate personhood rather than furthered it.
AMY GOODMAN: So, Ron Fein, where do these constitutional amendments stand right now?
RON FEIN: Well, when we began the constitutional amendment campaigns the day of the Citizens United decision, a lot of people thought that they would never go anywhere. But, in fact, we have got 16 states and over 630 cities and towns across 38 states that have passed resolutions, either by ballot initiative or by votes of the legislature, endorsing the constitutional amendment movement. And we had a Senate vote on the floor of the Senate this past fall, which got a majority of Senate votes, although it didn’t reach the necessary two-thirds threshold. But constitutional amendments take a long time. These are not processes that happen quickly, because the Constitution itself provides for a process to make sure that constitutional amendments are deliberate. So right now we’re in the phase of building grassroots support and educating people about the need to restore and repair our Constitution to the vision that the founders had. And for that, I think you for the opportunity to appear on this program.
AMY GOODMAN: How do corporate rights compare to—or corporate personhood, how does it relate to human rights?
RON FEIN: What you see, ironically, is that most often an assertion of corporate rights, as part of this new corporate civil rights movement, acts directly against human rights. So, again, to review just some of the cases, in the living wage challenges, which we’re seeing not only in Seattle, but also in Los Angeles, when the corporation is asserting an Equal Protection Clause right to not pay the living wage on the same schedule that they would be required to by the law, that goes against the human rights of the workers to receive that living wage on which they can feed their families. When Monsanto and other grocery manufacturers are asserting a First Amendment right not to reveal what products they are selling that contain genetically engineered ingredients, that violates the rights of Vermont consumers who want to know that information. And when you see the National Association of Manufacturers challenging a federal law that requires them to disclose whether their products contain minerals that come from the Democratic Republic of Congo, because, again, they don’t want to speak about it, that has a direct impact on the lives of people who live in Africa who are being harmed by the ongoing conflict and by the minerals trade that fuels the militias. So, when you see a corporation asserting a constitutional right, whether it be in the case of Hobby Lobby, with the shareholders asserting a right that acts to the detriment of their employees, or in any of these other cases we’ve discussed, it’s usually to the detriment of people.
JUAN GONZÁLEZ: What about that, Kent Greenfield, the inverse relationship between human rights and corporate rights?
KENT GREENFIELD: Right. I agree that corporate accountability is a problem, that corporate power is a problem, that there’s often a tension between human rights and corporate rights. And I’ve been—I’ve spent my career trying to craft solutions to that problem within corporate governance. And I think that’s where progressive efforts should be aimed, not toward constitutional right—constitutional amendments, which in the end would do little to address the real problems. I think the real problems come from the fact that corporations are managed and structured to further the interests of the managerial and financial elite. And how to make corporations more accountable, more attuned to issues of human rights and the like, is to make corporations themselves more democratic, to make the corporate governance, to make boards of directors attuned to interests of all stakeholders, to interests of society. I think I would put employees on the boards of directors of companies. And this is something that works in Europe. We know that it works there, Germany, where half of the board of directors of every major company—Siemens, VW, what have you—are populated by worker representatives. The economy is doing well. These companies are doing well. And they are seen as much more pluralistic and much more attentive to the needs of all their stakeholders. And we here in the United States have this blind spot when it comes to corporations. We think that they are in service of shareholders. And Ron Fein and others, with whom I’ve worked for a long time, all recognize that the core problem here is corporate power. We simply disagree about how to address it. I think to go at the—to the heart of how corporations are managed is the real remedy.
AMY GOODMAN: Well, I want to thank you both for being with us. It’s a conversation we will continue to have. Kent Greenfield, professor of law and Dean’s Research Scholar at Boston College Law School, we’ll link to your piece in The Washington Monthly, "Let Us Now Praise Corporate Persons." And Ron Fein, legal director at Free Speech for People. This is Democracy Now! When we come back, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World. Stay with us.
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AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González. We’re broadcasting on over 1,300 public radio and television stations around the country and around the world. And on this day, if you want to look back at our coverage of the 50th anniversary of the Bloody Sunday protests in Selma, Alabama, you can go to our website at democracynow.org.
Headlines:
Amid Gains in Tikrit, Iraqi Forces Accused of War Crimes
Iraqi officials say they are close to victory in an Iranian-backed offensive to reclaim the city of Tikrit from the self-proclaimed Islamic State. Iraqi forces and Shiite militias have reclaimed swaths of the city without the aid of U.S. airstrikes. The gains come as ABC News reports Iraqi military units trained and armed by the United States are under investigation by the Iraqi government for war crimes. Videos and photos on social media appear to show militia members and soldiers from elite units massacring and torturing civilians and displaying severed heads.
Report: U.S.-Led Strikes in Syria Killed Over 100 Civilians
A Syrian opposition group reports airstrikes by the U.S.-led coalition against the Islamic State have killed more than 100 civilians. The Syrian Network for Human Rights said dozens of civilians have been killed in strikes targeting oil refineries, while 51 were killed in late December when U.S. aircraft struck a building housing an ISIS prison in Al Bab.
Somalia: U.S. Drone Strike Kills Al-Shabab Leader, 2 Others
A U.S. drone strike in Somalia has reportedly killed a senior member of the militant group al-Shabab, along with two other people. Unnamed U.S. and Kenyan officials told the Associated Press the strike killed Adan Garar, who was accused of helping to plan the 2013 mass shooting at the Westgate Mall in Nairobi.
2 Aid Workers Contract Ebola amid Uptick in Sierra Leone
Sierra Leone has seen an uptick in Ebola cases in certain areas, as the total number of deaths from the outbreak has topped 10,000. Liberia released its last Ebola patient from treatment last week, but Guinea and Sierra Leone are still struggling to contain the virus. World Health Organization Assistant Director-General Bruce Aylward said waning attention poses a major risk.
Dr. Bruce Aylward: "In terms of the risks, the single biggest one probably at this point is the risk that the world stops looking at this disease, stops looking at these countries. We talk often about how steep the drop in cases has been. The only thing that’s dropped more quickly and more steeply has been the new contributions and financing to the program."
Meanwhile, a worker from the U.S. aid group Partners in Health and a British military aid worker have both contracted Ebola in Sierra Leone. The British aid worker has arrived in London for treatment, while the U.S. worker is due to arrive today in Bethesda, Maryland.
Report: World Powers Mull U.N. Resolution to Lift Iran Sanctions
World powers have reportedly opened talks on a possible U.N. Security Council resolution to lift sanctions on Iran if a nuclear deal is reached. According to Reuters, the talks between the United States, Iran, Britain, China, France, Russia and Germany are taking place ahead of the resumption of nuclear talks next week. A U.N. resolution could render the nuclear deal with Iran legally binding, making it harder for Republicans in Congress to undo it. Meanwhile, Iran’s Supreme Leader Ayatollah Khamenei has criticized this week’s open letter from Republican senators threatening to nix any nuclear deal.
Ayatollah Ali Khamenei: "The team assigned by President Hassan Rouhani to the talks constitute good, reliable and sympathetic individuals who are trying to secure the country’s interests. Of course, I’m concerned because the other side (the U.S) is into deception, trickery and backstabbing."
After Years of Refusal, Swedish Prosecutors to Question Assange in London
Swedish prosecutors have issued a request to question WikiLeaks founder Julian Assange in London on sexual assault allegations following pressure from Swedish courts and repeated requests by Assange’s lawyers. Assange, who has never been charged over the allegations, has been holed up in the Ecuadorean Embassy in London since 2012, fearing a Swedish arrest warrant could lead to his extradition to the United States. Assange’s lawyers have been asking Swedish prosecutors to question him in London for more than four years.
Ferguson: Protesters Hold Candlelight Vigil After Police Shot
Protesters in Ferguson, Missouri, held a candlelight vigil Thursday after the shooting of two police officers by an unknown gunman. Both officers have been released from the hospital. The shots were fired during a protest outside the Ferguson Police Department, but police say the shooter was about about 125 yards away. Attorney General Eric Holder condemned the shooting, which came on the heels of a Justice Department probe on rampant racial bias by Ferguson police.
Eric Holder: "What happened last night was a pure ambush. This was not someone trying to bring healing to Ferguson. This was a damn punk, a punk, who was trying to sow discord in an area that is trying to get its act together and trying to bring together a community that has been fractured for too long. This really disgusting and cowardly attack might have been intended to unravel any sense of progress that exists, but I hope that that does not in fact happen."
Report: FBI Joint Terrorism Task Force Tracked Black Lives Matter Protest
An email obtained by The Intercept news site reveals members of an FBI Joint Terrorism Task Force tracked details of a Black Lives Matter protest at the Mall of America in Minnesota last December. An email from St. Paul police officer and task force member David Langfellow cites a "confidential human source" who confirmed the date and time of the protest. An FBI spokesperson denied the agency has any interest in the Black Lives Matter campaign.
Secret Service Agents Drove Through Bomb Investigation in Alleged DUI
New details have emerged about two Secret Service agents accused of drunk driving into a White House security barricade. The Washington Post reports the agents allegedly drove through an active investigation, directly next to a suspicious package, which had been placed on the ground by a woman who claimed it was a bomb. While officers at the scene wanted to arrest the agents and administer sobriety tests, a superior ordered their release, without the tests. The Secret Service’s new director, Joseph Clancy, who was appointed last month after a scandal over a White House security breach, said he learned of the incident five days later. The agents have been identified as Mark Connolly, the second-in-command on Obama’s security detail, and George Ogilvie, a top supervisor in the Washington field office who issued a statement last year touting the agency’s zero-tolerance policy for drinking.
Report: Accused Chilean Torturer Taught for Pentagon for 13 Years
McClatchy Newspapers reports an accused torturer who served as a member of Chilean dictator Augusto Pinochet’s secret police force worked for the Pentagon’s top university for 13 years. Jaime García Covarrubias returned to Chile last year. He remains there under a Chilean judge’s order amid a probe into his alleged masterminding of the murders of seven people in the weeks after the U.S.-backed coup that brought Pinochet to power September 11, 1973. An alleged victim of García Covarrubias said he used to wield a horsewhip while presiding over sexual torture and electric shocks. Despite repeated complaints over García Covarrubias’ past, officials with the State Department and Pentagon let him teach at the William J. Perry Center for Hemispheric Defense Studies, while immigration officials let him remain in the United States.
Palestinian Activist Rasmea Odeh Sentenced to 18 Months for Immigration Fraud
A Palestinian activist accused of immigration fraud has been sentenced to 18 months in prison. A U.S. judge in Detroit called Rasmea Odeh a terrorist as he sentenced her for concealing her conviction on bombing charges by an Israeli military court more than 40 years ago. Odeh says her confession to the bombings was obtained through torture and sexual assault in Israeli custody. Her supporters say she was targeted by U.S. authorities over her support for Palestinian liberation. Odeh served as associate director of the Arab American Action Network in Chicago and has lived in the United States for 20 years. She will be deported after her prison term.
27 Arrested at The Children’s Place HQ in Protest over Factory Collapse
In Secaucus, New Jersey, more than two dozen people were arrested at the offices of the clothing retailer The Children’s Place as they called for compensation for victims of the Rana Plaza factory collapse in Bangladesh. The Children’s Place is among the retailers whose products were found in the factory’s ruins, and protesters say they have contributed just $450,000 of the $30 million owed to workers’ families. Next month marks the two-year anniversary of the disaster, which killed more than 1,100 people. Bangladeshi activist Kalpona Akter stood with 18-year-old Mahinur Begum, a survivor of the collapse, and called on The Children’s Place to pay.
Kalpona Akter: "Please care about these workers. Don’t let them die in these factories and wait for this compensation years and years. Please pay. Please pay. When you say Children’s Place care about the children, those lost their parents in the deadly building collapse. So please step forward and pay."
The protest came as a cement factory run by a subsidiary of the Bangladeshi army collapsed south of the capital Dhaka, killing at least seven people and injuring 30.
Brown Students Protest Alleged Role of Money in Sexual Assault Case
Brown University is facing protests over its handling of sexual assault after two students said their drink was laced with date rape drugs at a fraternity party. Brown suspended the fraternity, Phi Kappa Psi, but dropped charges against the student accused of administering the drugs, whose father is a Brown trustee and donor. The accused student hired his own expert, who questioned toxicology tests ordered by the school, leading to revelations Brown had selected laboratories with a history of inaccuracy. Meanwhile, a second student accused of sexually assaulting one of the women was found "not responsible" after Brown said the woman’s foggy memory — a symptom of drugging — made it difficult to disprove her alleged assailant’s account. On Wednesday, 400 students marched silently through campus with dollar bills over their mouths, bearing a red IX, a reference to Title IX. Brown is one of 94 colleges under federal investigation for possible violations of Title IX due to its handling of sexual violence.
Civil Rights Leader Rev. Willie Barrow Dies at 90
The civil rights leader Rev. Willie Barrow, who marched with Dr. Martin Luther King Jr. in Selma 50 years ago, has died at home in Chicago, Illinois, at the age of 90. Nicknamed "Little Warrior," she was a fixture of the civil rights movement in Chicago where she helped found Operation Breadbasket, which became the Rainbow PUSH Coalition. Democracy Now! interviewed Willie Barrow in 2008 on the floor of the Democratic National Convention in Denver, Colorado, where she was a superdelegate. She explained how then-nominee Barack Obama came to be her godson.
Rev. Willie Barrow: "Well, he came to—we have a broadcast every Saturday morning, and—from 10:00 to 11:00, and he was bringing those two little girls every Saturday morning alone. ... And he said to me one Saturday, 'Reverend Barrow, could I talk with you?' I said, 'Do you want to make an appointment?' He said, 'No, I want to talk with you now.' I said, 'Come on over.' And he said, 'Do you have godchildren?' I said, 'Yes.' He said, 'Could I be one?' I said, 'Of course.' And that’s how we started."
War Tax Resister Juanita Nelson Dies at 91
Juanita Nelson has died at the age of 91 in Greenfield, Massachusetts. She was a longtime civil rights activist, war tax resister and farmer. She was first arrested in the early 1940s protesting lunch counter segregation in Washington, D.C. During World War II, she met her future husband, Wally Nelson, while he was in jail for refusing to fight in the war. In the late 1940s, they helped organize the first Freedom Rides in the South. At the same time, they stopped paying taxes for war. In 2005, Democracy Now! interviewed Juanita about war tax resistance.
Juanita Nelson: "A group called Peacemakers had been started, and we became members of that, either the first or second year that it was formed, and it saw nonviolence as a way of life, not simply against war, but the things it made for war, the things it made for poverty, all that sort of thing. And so we just didn’t pay taxes, and we never filed after that. And neither of us had paid taxes very much anyway. We never had much money anyhow. But I always wanted to make at least 10 cents more, so I could thumb my nose at the government."
Watch the full interview with Juanita Nelson
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