Responses to reports of NSA surveillance of Americans runs the gamut from outraged to blasé. I fall more on the outraged side, with the caveat that such wide-scale snooping isn’t particularly surprising, given trends over the past half a century.
I also understand that a majority of my countrymen do not pay a lot of attention to this stuff, and the idea that the United States government is collecting data on Americans is considerably offensive. Also waving the flag of indignation are civil libertarians and other advocates for privacy and free speech (including many of my peers).
At times like this, it’s important to take a closer look at how we got here. Many are familiar with the “warrantless wiretapping” program(s) of the Bush administration, and you’d be forgiven for thinking that, given the blowback, such programs were a thing of the past — overzealous national security responses from the first phase of the War on Terror. Never mind that President Obama completely backtracked from Candidate Obama’s calls for accountability, and supported retroactive immunity for participating telecom corporations. Like torture, domestic communications dragnets exceeding the National Security Agency’s foreign intelligence-gathering mandate were supposedly behind us.
But the basic fact is that the steady erosion of Fourth Amendment protections against government “searches and seizures” have been underway for at least half a century, maybe more. (For a more detailed accounting of this phenomenon, I recommend the privacy sections of Constitution 3.0: Freedom and Technological Change.)
Keep in mind that the Fourth Amendment is only a limit on government searches and seizures; the Constitution is silent on matters of private market data collection — not surprising, given the era in which it was drafted. But corporations can and do collect and store massive amounts of user information for any number of reasons, some obviously very beneficial to consumers. Still, according to the courts, the public’s “reasonable expectation” of privacy under the Fourth Amendment is essentially that any third party (like a telecom or a internet service provider) would in turn supply these exchanges to the government. For its part, the government can request this data more or less without probable cause (or even reasonable suspicion). The “special circumstances” exceptions upheld by the courts plainly allow for government requests of third-party data under the presumption of national security interests. Congressional mandates such as FISA (and subsequent amendments) simply expand the opportunity for cooperative surveillance while providing immunity for voluntary participation by corporations.
Existing court precedent allows for some pretty loose interpretations of Fourth Amendment limitations, and Congress has greatly expanded these exceptions through the Patriot Act and its legislative spawn. It’s trendy to blame Obama, but consider that any president who comes into the job is unlikely to willingly roll back powers granted a previous officeholder. Perhaps the court order compelling Verizon to provide the NSA with telephone metadata and the PRISM program, which scrapes data from at least nine major internet companies, will serve as a wake-up call. Still, decades of weak case law and massive growth of the national security industrial complex lead this observer to think otherwise.
But what’s the big deal, you might say? I’m not doing anything illegal or wrong. This somewhat misses the point. What is considered “wrong” is legalistically and culturally elastic. Constitutional protections against invasive search and seizure should not be. PRISM’s capabilities are particularly chilling, and allegedly include not just massive intercept of emails and social web activity, but also real-time surveillance of everything from web searches to instant messaging.
One observer whom I particularly admire, pointed to president Dwight Eisenhower‘s famous speech warning against the nascent military industrial complex. (Here’s a swell video of Eisenhower’s still-prescient remarks.)
This observer notes that “private industry working hand in hand with government is the force that most threatens our society.” I agree completely, which is why when I find time to post here, it’s often about such corporate-state collaborations.
So who is to blame for the latest expansion? It’s certainly tempting to finger Congress for their apparent inability to draw bright lines regarding what is and isn’t acceptable data-gathering. But as another friend points out, “House and Senate rules have punishments for members who exercise their speech or debate clause rights and reveal executive-branch-designated classified information to the public.”
To wit, Senate Intelligence Committee member Ron Wyden (D-OR) has been waving his hands wildly about overreach for some time, as has Senator Mark Udall (D-CO). And, in case you’re thinking that I’m singling out democrats, I can offer some begrudging praise for Senator Rand Paul (R-KY), whose libertarian views of American security efforts are well-documented (though his true lean on the NSA surveillance issue is likely more complicated.)
I’ve come across plenty of impassioned Ben Franklin quoting in the last couple of days. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” the framer famously quipped. This statement is great, but really what we’re seeing here is the fulfillment of Eisenhower’s chilling vision of for-profit militarization across multiple strata.
This is big business, plain and simple. For further evidence, I encourage you to read the Washington Post’s comprehensive 2010 expose, “Top Secret America.” As a colleague recently pointed out, “the overbuilt and overly invasive intelligence and security infrastructure is disheartening mostly because it’s so damn expensive at a time when those resources are desperately needed elsewhere… I’m bothered by the government overreach. It’s just fattening contractors pockets; that’s the real outrage.”
Disapproval transcends partisanship (or at least it should).
I’d like to take a minute to note the efforts of nonprofits like Center for Democracy and Technology, Free Press and the Electronic Frontier Foundation. Though I have some differences with the latter organization on copyright issues, I salute their dogged work in demanding government accountability and oversight regarding these programs.
I’m not sure what happens next, but it’s clear that we can’t just bury our collective heads in the sand. Sunlight is the best disinfectant, and there are few areas that could use more disinfectant than this. While it’s certainly true that security is a real concern, this should not blind us to our obligation as the governed to demand consent around any government programs in which our essential liberties may be compromised.
And, while I am sensitive to the fact that at least some of the tech companies implicated in the PRISM program weren’t especially keen to cooperate with the feds, I hope that the public response serves to underscore their basic obligations to consumers. In a truly free market, we’d have the ability to punish these platforms by simply choosing another. I’m not so sure this is the case with massively-scaled internet concerns. This is troubling, but also gives me some hope that course corrections can be made.
Demand political representation that isn’t bought and paid for by corporations. Demand that corporations serve consumers as much as Wall Street. Demand greater transparency in national security efforts. Privacy rights needn’t be a mythical ideal, like American exceptionalism. In fact, I’d say that standing up for our rights and those of our countrymen is what makes us exceptional.