Monthly Archives: June 2013
I’ve felt that much of the commentary surrounding Edward Snowden and the National Security Agency has failed to capture just how radically these revelations may alter our society. A couple of weeks ago, I vaguely assumed that the average citizen had at least a modicum of privacy, but I can no longer justify that belief. The NSA’s programs represent a Panopticon state—where one has a well-founded belief that every single communication of any kind has a nontrivial chance of being monitored. It’s the kind of country that for most of modern history has existed only as a kind of academic bogeyman for the purposes of theoretical demonstration…
Continue reading at the Washington Monthly
A couple of years ago I was standing with a friend on a street corner in San Francisco, trying to hail a cab and talking about something very sensitive and personal. After we’d climbed into a cab and told the driver where to go, my friend continued the conversation. I couldn’t. I’m not used to riding in cabs, and I was worried about what the cabbie might be thinking. I found myself talking around the subject, avoiding saying directly what was on my mind.
When a person knows that an agent of the United States government might just happen to be listening in on any conversation she is having online, does she censor herself? Or, is the expectation of privacy for online conversations similar to that for a conversation in the back of a taxi? Does she expect that those men and women whose consummate professionalism President Obama so eloquently praised last week will, after they’ve read a few paragraphs of her conversation with her friend from Morocco and satisfied themselves that neither of them are terrorists, forget about all of it and move on with their day?
Obviously, the second is more likely. People are constantly broadcasting their thoughts through social media and sharing images of themselves and their friends with the public, and they’ve become acculturated to the fact that advertisers know all kinds of things about them–not just the name and the address, but the age, income, purchasing habits, and level of education associated with that name and address. Google’s algorithms know you better than some of your closest friends do. For that reason, you aren’t going to be particularly upset that National Security Agency personnel might be incidentally storing information about your online communications and even occasionally reading your messages or even clicking through your Facebook albums. You are going to feel that stopping terrorists is more important. The political forces supporting the bipartisan consensus that granted the intelligence community this authority originally will not weaken. There will be no public outrage in response to this week’s news. Nothing will change.
Yet these surveillance operations should be very disturbing to all of us. Privacy is not the right concept for explaining why, because you aren’t likely to be concerned enough about your own privacy to be disturbed by these kinds of violations of it, but there are other reasons for concern.
First, the authority that the agency has arrogated to itself will be abused. It is important not to indulge in paranoia and imagine that these abuses will be systematic. All the same, as long as law enforcement or the military or the administration is able to choose whose communications can be queried, it is inevitable that some of those decisions will be made for political reasons rather than for reasons of security. It isn’t clear from what’s been revealed so far what criteria, if any, analysts are obliged to fulfill to access information, but it isn’t hard to imagine operators manipulating queries to “incidentally” retrieve something from a U.S. citizen who is not dangerous, and of course, a future administration could change whatever criteria do exist.
Second, the United States is now as it always has been a city upon a hill, and it is stunning that President Obama seems unable to understand the consequences of the precedents he has set, even if he is confident in U.S. officials’ circumspection. Dissenters and activists living under oppressive regimes around the world must be in despair, because their governments are now able to monitor communications on the authority of secret arguments made in secret courts without the appearance of repression. Secrecy is sometimes unavoidable for law enforcement and for intelligence, but its presence in the judicial system must be limited because of the potential for abuse. There are only a few things more incompatible with the rule of law than secret law. As Aquinas wrote, laws ain’t laws if they ain’t promulgated. What this country ought to be doing–our responsibility to everyone who will live in this technological world we’ve created in the future–is establishing a precedent. Hannah Arendt called it the dream of the Soviet secret police: a map of every citizen and his or her relationships with every other citizen in the country that would make possible eliminating not only a dissenter, but everyone with a memory of him. We should be demonstrating what a free country needs to do to remain free now that that dream is no longer just a dream. That map is not only technologically feasible, but has apparently been achieved by our government through telephonic metadata.
Also, Obama was careful to explain on Friday that U.S. citizens’ online communications are not the targets of the National Security Agency’s surveillance, and while it is true that his administration does not have legal obligations to the citizens of other countries, that explanation can hardly have made foreigners feel better about the whole thing. It’s not a question of preserving the United States’ moral authority in the desperate hope of retaining diplomatic leverage or preventing radicalization. In this case, it is a question of maintaining a standard to which oppressive and dictatorial regimes can be held accountable, since advancing democracy and the rule of law has been the stated goal of this country’s foreign policy since the invasion of Iraq. Fortunately for the rest of the world, this is not the only country capable of maintaining that standard.
Finally, however, the concerns that led this country’s first citizens to add the Fourth Amendment to the Constitution were very different from these. There might have been a feeling that searches and seizures could be used to suppress political activity, but I doubt that was the primary purpose of the Amendment, and in any case, no one then could have conceived of the contemporary surveillance state. Rather, the Fourth embodies a set of ideas about what kind of society the inhabitants of the freshly sullied colonies wanted to create. A society in which some of the populace’s most personal information is accessible to the state is a qualitatively different society from the one they envisioned and from the one that existed here until quite recently.
In feudal Europe, everyone lived a rigidly defined social station that determined every detail of their existences. There was no private sphere and there was no public sphere. For reasons which it would take too long to even begin to discuss here, the feudal system began to dissolve. Previously, even alone, neither lord nor serf had been entirely free of the state, but now people experienced the radical freedom of true solitude. Representative democracy as we know it became conceivable–a society in which the interactions of many private citizens and their interests, values, and aspirations, formed and pursued in solitude, constitute a public sphere, in which each person’s right to participate is guaranteed by her freedom of conscience. Likewise, only on the assumption of some original, inviolable privacy is a social contract conceivable. Only a private citizen can delegate his authority to a representative, because only a private citizen has any authority to delegate, as only if people are assumed to be private is their consent necessary for the legitimacy of the government. Representative government allows them to return to their privacy. The Framers were, to some degree, Romantics, and they were also capitalists for approximately the same reason–they wanted citizens to enjoy meaningful autonomy, whether in the accumulation of property or of spiritual insight.
Privacy is not just a right. It is a premise. A robust public sphere requires a robust private sphere. A society lacking the second lacks the first–at least in the sense with which we are familiar, and what the old public sphere is transforming into is uncertain. That, however, might not be an objection to the current administration’s policies as much as it is a critique of the culture the Internet has created–a culture of transparency and nakedness, a culture that challenges our conviction in one of our most basic assumptions about liberty and the rule of law.