This week’s big story was the series of revelations about government spying on ordinary Americans. I don’t see the Weekly Sift as a breaking-news blog, but before we can get around to reflecting on how upset we should be and what we should do about it, let’s establish what happened.
Verizon metadata. It started Wednesday, with Glenn Greenwald’s scoop that Verizon turns its caller records over to the NSA every day. The report was based on a copy of an order from the secret FISA court that oversees the government’s secret snooping. The order, in turn, is based on an expansive interpretation of a provision of the Patriot Act.
Leaks during the Bush administration revealed that call records were being swept up into a massive government database, but
Until now, there has been no indication that the Obama administration implemented a similar program.
Three related New Yorker articles are worth reading: a Seymour Hersh article about what the NSA was doing in 2006, Jane Mayer explaining just how much about the content of a phone call can be deduced from metadata, and (laughing to keep your sanity) Andy Borowitz’s satirical “Letter to Verizon Customers” in which the company explains that
While the harvesting and surveillance of your domestic phone calls were not a part of your original Verizon service contract, the National Security Agency is providing this service entirely free of charge.
Probably there’s nothing special about Verizon; that’s just the court order we happen to have.
PRISM. Thursday, The Guardian and The Washington Post published a leaked slide presentation on the top-secret PRISM program, in which “search history, the content of emails, file transfers and live chats” are collected directly from the servers of major U.S. service providers like Google, Facebook, and Apple. As the then-anonymous leaker claimed, “They quite literally can watch your ideas form as you type.”
Edward Snowden. This weekend, I was explaining to my wife that I didn’t understand why the leaker was staying anonymous, since the NSA was going to figure it out anyway. He might as well orchestrate the announcement himself, rather than be introduced to the world while doing a perp walk.
Defending surveillance. A variety of sources jumped to the defense of the newly-exposed programs. President Obama emphasized that the programs “do not involve listening to people’s phone calls, do not involve reading the e-mails of US citizens and US residents.” And there is oversight to prevent abuse:
Your duly elected representatives have consistently been informed. … This program, by the way, is fully overseen not just by Congress, but by the FISA court, a court specially put together to evaluate classified programs. … We have established a process and a procedure that the American people should feel comfortable about.
Obama’s bottom-line justification of the spying programs is: “They help us prevent terrorist attacks.”
Democrat Dianne Feinstein and Republican Saxby Chambliss — the ranking members of the Senate Intelligence Committee — released a joint statement:
The intelligence community has successfully used FISA authorities to identify terrorists and those with whom they communicate, and this intelligence has helped protect the nation. The threat from terrorism remains very real and these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government.
Four levels of privacy loss. Now we’re getting into the how-should-I-think-about-this part. When I think about “loss of privacy”, I might be talking about four different things:
- The modern world collects a lot of information about me. We don’t usually think about it, but just about everything we do leaves a record somewhere. When I walk past a security camera, make a phone call, buy something with a credit card, or go through the E-Z-Pass toll gate, something gets recorded. Most of that security video is never watched by anybody, but it could be, and that by itself might intimidate me out of doing something perfectly legal and harmless, like dancing to the Muzak when I’m by myself in an elevator.
- My information could be gathered together into a database, even if no one is targeting me. It’s one thing to imagine a rogue security guard in my building getting obsessed with me (or with my daughter, if I had one) and scanning security tapes. It’s another thing entirely to worry about somebody with access to security cameras everywhere, as well as cell-phone tracking data, credit-card data, TSA body scans, and so on. Again, I’m not important enough for anybody to bother, but the mere possibility is worrisome.
- I might be investigated by the government. Think about J. Edgar Hoover tapping Martin Luther King’s phone. Just exercising your constitutional rights in a totally legal way — organizing the next Occupy Wall Street, say — could put you under the government’s microscope. Suddenly, every illegal or embarrassing thing you’ve ever done (no matter how trivial) might come to light and be used to tear you down.
- Someday the government might routinely keep track of everyone. So far this is science fiction, because you’d need to hire half the country to watch the other half. But as artificial intelligence improves and processing power grows, the idea of a system that processes all that gathered information and draws conclusions about everybody becomes less and less far-fetched
Now we’re in a position to think about the things we learned this week about government surveillance. It’s tempting to be mad at the government for our level-1 loss of privacy, but that’s just life in the modern world. You need to put that aside.
The Level-2 issues. This week’s revelations indisputably showed level-2 loss of privacy. Information that already existed in separate places is being pulled together into big government databases.
Anybody who watches prime-time TV cop shows shouldn’t be terribly surprised that information can be pulled together about specific people for some good reason. Castle and Beckett are constantly studying suspects’ financial records, looking for specific cars on traffic cams, getting businesses to turn over security-cam videotapes, and so on. The Boston Marathon bombing investigation was like CSI: Real World. We expected investigators to have video of everything and records of everything. If we were disappointed, it was that the FBI couldn’t assemble and process that information to zero in on the bombers faster.
The public is mostly OK with this — supports it, even — as long as the information is handled properly: The government has a good reason to assemble the information; investigators use it to accomplish that legitimate purpose; and after the purpose is fulfilled, they dispose of the information they don’t need. We assume that Castle and Beckett stop tracking a suspect’s financials after his alibi checks out, and that after the case closes, they do their best to forget what they’ve learned. It would creep us out to see them compiling private information just to satisfy their curiosity.
So the idea that the government might be collecting everybody’s phone and/or internet records and storing them forever — that’s a problem.
Level 3 issues. The government’s defense amounts to: Level 2 doesn’t matter as long as we have good procedures in place to protect Level 3. In other words, compiling the database shouldn’t bother you; the real violation of privacy doesn’t happen until somebody accesses the database.
I’m not persuaded, mostly because the safeguards are as invisible to me as the programs were until Wednesday. Courts that have to publish their opinions sometimes make outrageous rulings, and we can respond by pressuring Congress to change the law or starting a movement to amend the Constitution. But if a secret court makes an outrageous ruling, none of that happens, because we don’t hear about it.
Likewise, police sometimes exceed their authority, as they often did during the Occupy protests. When the excess takes the form of pepper spray or a baton to the head, it might show up on YouTube or result in a lawsuit. But when the excess is the misuse of a database, you might never know. Even if you suffer tangible effects, you probably won’t be sure what happened.
One of the things Snowden emphasized in his Greenwald interview was that policy safeguards aren’t much to stand on, particularly if the details of the policy are secret. If you’re a loyal Democrat, you might imagine that President Obama is honestly doing his best to keep the databases from being abused; if you’re a Republican, you might have similarly trusted President Bush. Good for them if they really did prevent abuse, but the long-term threat is still there.
We have had untrustworthy presidents in the past and we will undoubtedly have another one someday. Or we’ll have an emergency that makes everybody temporarily forget all those namby-pamby notions of privacy. Policies can change in a blink, or people can just stop enforcing them. And if they’re secret policies, no one will know.
Snowden calls this “turnkey tyranny”.
What can be done? This is the hardest kind of thing to fix through the democratic process. First, because a lot of Americans, maybe a majority, would buy the idea that the threat of terrorism justifies ditching some abstract ideals about privacy. (My hunch is that this is an issue where you can get wildly different poll results by re-phrasing the question.)
Even if a majority is solidly against this, it might survive — just as 70% support levels haven’t produced a universal background check law. On the one hand you have the threat of abuses that can probably be kept secret; on the other the threat of a terrorist attack that will dominate the news for weeks. Politicians may decide not to take the chance.
Even if we can elect people we believe oppose such programs … well, we thought Obama did too.
So I’m about to say something significantly more radical than you’re used to reading on this blog: I don’t see this changing without direct action, and probably not without monkey-wrenching. Somehow — and I’m open to suggestions about how — ordinary people have to make this kind of surveillance not work, and frustrate and embarrass the people who try to implement it.
Should it come to that? Yeah, I think it should. I know the spies think they’re keeping us safe from terrorism, and God knows I don’t support terrorism. But long-term, I believe the surveillance state itself is a bigger threat than what it claims to be protecting us from.
To get yourself thinking in the right direction, I recommend a 2008 young-adult novel by Boing-Boing editor Cory Doctorow: Little Brother (as compared to Big Brother). Turns out you can download it for free. I found it a compelling read, and it does for cyber-privacy what Edward Abbey’s The Monkey Wrench Gang did for the environment a generation ago.