The world is presently inundated with revelations or reminders of the U.S. federal government’s various means of collecting information about everyone’s private correspondence, of how bureaucratic offices sympathetic to the current administration are using private information to target political opponents, and of how federal officials are using legitimate national security concerns to build support for increasing public surveillance and private “data-mining” so ominous that a “career intelligence officer” felt compelled to reveal the secret data-mining system, explaining that “They quite literally can watch your ideas form as you type.” I dare anyone to say “So what?” in answer to that claim.
Conservative response to the data-mining and phone record collecting stories has been mixed. While many are sounding alarm bells, and citing the IRS “scandal” as evidence of the danger of allowing the government indiscriminate access to private communications data, others are offering legalistic arguments to quell irrational fears, telling us that these procedures are all quite justifiable, and merely a reasonable extension of traditional information-gathering methods.
As for the people casually dismissing all concerns by noting that the programs in question are “legal,” I’m sure I’m not the only person who can think of another recent program of the U.S. federal government that is “legal” in exactly the same sense: supported and funded by Congress, upheld by the courts. Indeed, that other program has even been declared “the law of the land” by John Boehner himself; and yet it is properly regarded by many conservatives as the heights of authoritarian overreach.
Perhaps the most intellectually serious effort at a reasonable “calm down, everyone” case is offered by the indispensable Andrew McCarthy, a man certainly well-versed in the law, and not at all dismissive of U.S. constitutional concerns. His argument is that the data collected through the government’s electronic surveillance systems is equivalent to the names and addresses available in every phone book, or to the information on the outside of a posted envelope – information which is, for legal purposes, public in nature.
[T]he Constitution expressly protects the American people only in their “persons, houses, papers, and effects.” Modern Fourth Amendment jurisprudence has expanded this ambit to include matters or items in which there is an “expectation of privacy” judicially deemed “objectively reasonable.” Notwithstanding the caterwauling of privacy activists, though, the courts have forcefully rejected the notion that telephone metadata qualifies. The content of conversations? Yes. The numbers dialed, the duration, the fact that the conversation took place? No.
First of all, it appears that the newly-revealed PRISM program may reach far beyond the outside of the envelope. For example,
According to a separate “User’s Guide for PRISM Skype Collection,” that service can be monitored for audio when one end of the call is a conventional telephone and for any combination of “audio, video, chat, and file transfers” when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.
Of course, digging for such details would, in theory, only take place if there were a suspicion that the participants in a given communication were engaged in wrongdoing. But how would this suspicion be arrived at? And what would constitute “wrongdoing,” in the eyes of a U.S. administration that has countenanced IRS targeting of private individuals and organizations expressing views opposed to the administration’s policies?
But I think there are grounds for a more basic concern, even apart from the case of “monitoring for audio” or “live surveillance of search terms.” In short, is the government’s collection of data regarding, in effect, any and all electronic communications, anywhere, by anyone, really analogous to having a phone directory on one’s desk, or having access to the address information on the outside of an envelope?
Consider this difference: Knowing your phone number and home address tells us nothing about where you are and what you are doing right now, or where you were and what you were doing last Wednesday at 3:20p.m. Knowing fixed, permanent identification-type information about you is not the same as keeping a real time record of your daily activities. Knowing where you live is several removes from knowing the identities of all your regular contacts, and when and how often you interact with each of them. Legal analogies and court precedent are not satisfactory arguments here, because they do not address the primary issues, as follows.
Why is it acceptable for the government to know whom you spoke with today? There is a difference between the government knowing my phone number and the government knowing whose names and numbers are in my personal address book. And even if you should reply that the government has only “generic” knowledge of such information unless and until they choose to isolate me for investigation, is it not unseemly, not to say spooky, that everyone in the world should have to become inured to the fact that the U.S. federal government is keeping a log of their activities, and has standing legal authority to consult that log whenever it deems necessary? Does this not reduce freedom of speech and assembly to “freedom to speak or assemble, as long as a government monitor is present”? But wasn’t the purpose of that old-fashioned “natural rights” talk precisely to mark out the area upon which government may not encroach without just cause?
Why is it acceptable for the government to know which websites you visit, anymore than it is legitimate for them to know which stores you have entered, or which television programs you watch? And please don't get mired in sophistical answers such as, “Does that mean a policeman walking the beat has to avert his eyes before you enter a shop on his block?” No – and the case is not similar. It would become similar, however, if that policeman started following you around the neighborhood, taking notes on which shops you entered and how long you stayed in each shop. For then the officer would no longer be keeping an eye on the neighborhood, but rather conducting an unwarranted and intrusive surveillance of an individual who is not suspected of any wrongdoing. Would you, faced with such police behavior, be satisfied if the officer said, “We just want to have a complete report on your movements in case we should ever find the information useful”?
Some may wish to argue that electronic communication is more public by definition, and hence while you may gather with anyone you please in the privacy of your own home, without government monitoring, you tacitly agree to give up such privacy when you choose to engage in a “virtual gathering,” such as by phone or on the internet.
Perhaps this takes us into a deeper philosophical question which cannot be answered fully here. Nevertheless the question must be asked: What is the relationship between technological developments and a free society? Do we not properly view technology as an extension of our natural purposes and pursuits? Is it not a means of facilitating activities we would have pursued anyway, albeit less efficiently, before the technology was available? Is not the telephone, in its defining purpose, a means of conducting private conversations at distance – conversations which we would have wished to pursue, though much less conveniently, before the invention of the telephone? In other words, is the telephone to be seen as essentially a means of facilitating and enhancing our pursuit of our natural right to speak and associate freely, or is it to be seen as essentially opening up a new realm of governmental authority? That is, does genuine freedom of association end where the lines of telecommunication begin? Does the “reasonable expectation of privacy” end when we sign in to our personal e-mail accounts? Do we tacitly waive our natural freedom merely by availing ourselves of technological aids?
If so, why? On what principle has it been determined that the technological realm is inherently public – that is, open to unwarranted and indiscriminate state monitoring? How has the belief evolved that government has the legitimate authority to keep track of our electronic comings and goings in ways men would never have thought legitimate with regard to their physical comings and goings? (As for my use of the past conditional form, “would never have,” see below.)
If the very fact of using a telephone or the internet means sacrificing your claims against unwarranted government intrusion, this raises a very profound issue. For it suggests that as modern life becomes increasingly entwined with our technology, it becomes unavoidably less free. That is, the very conditions of individual liberty that made these technological advances possible are necessarily undermined by the advances themselves. If so, then this would seem to lend credence to the Marxist historicist hypothesis, as it implies that individual liberty really is a transitional phase of history, inexorably bound to create the conditions of its own undoing, and the rise of the socialist state. This, I propose, follows from the premise that private action becomes government property when it is pursued through technology.
Where is all this tending? That is the question which the best detached legal argument is intrinsically unable to address. Once we accept the premise that government should be permitted to keep a record of all your “public” activity – including such activity as would never have been regarded as public in the past (private communication), when such activity happens to be conducted through technological means – it is difficult to see where real lines can be drawn to determine where the state cannot go without properly established grounds for suspicion. Already, the British government, the world leader in public video surveillance, has experimented with the idea of installing cameras in “high risk” private homes to monitor the parents’ methods of raising their children. In America, the current administration is on the record, through official white papers and in public statements from the president and his subordinates, as regarding people who revere their Constitution or worry about the loss of their liberty as extremists and potential terror risks.
Furthermore, if the defenders of big government can make the case for keeping records of exactly where you were, what computer you were using, and with whom you were corresponding, last Wednesday at 3:20p.m., on the grounds that electronic communication is somehow “different” from the private speech and association this technology was invented to facilitate, then might they not, having achieved complete acquiescence to this fuzzy principle, turn the argument around? That is, once it has been accepted as a truism, including through legal precedent, that the presence of a technological component overrides normal considerations of free association and private speech, how great a step will it be to make the reverse case for putting cameras and microphones in every home, or conducting random police searches.
After all, your government may argue, we already collect data on all your private telephone and e-mail correspondence, and monitor your web searches, in the name of maintaining public safety. The problem is that there is still a dangerous loophole in our data, namely your offline communications. And since it has already been established that online communications ought to be accessible to the government at all times, it is only a matter of consistency that government should have equal access to your offline interactions. In principle, the only difference between the face to face conversations you have with your guests in your living room and the e-mail correspondence you engage in online is the physical distance, so the court has ruled that there is nothing to bar us from monitoring your home and workplace for the same kind of information we routinely collect from your e-mail and telephone providers, namely whom you are meeting, at what times, how often, and where?
But don’t concern yourself; it’s for the security of the community, and if you haven’t done anything wrong, you have nothing to worry about.
Let me state, for the record, that I know Islamic terrorism is a real threat, and that all means consistent with a free society ought to be used to prevent it, including the targeted use of electronic records with just cause. Universal data-mining of all electronic communication, however, which is able, in principle, to reveal anyone’s patterns of behavior, whereabouts and particular associations, without even looking at content, is qualitatively different from such legitimate use of state power. Some will focus narrowly on the risk of granting such overwhelming authority to the Obama administration, with its subversive motives and its history of abuse of authority. I am with those who question such authority more broadly. After all, it is precisely the purpose of the concept of limited government to establish permanent political conditions which militate against the abuse of scoundrels.
Rush Limbaugh recently called the Obama administration’s activity on this front a “coup d'état.” Doesn’t French make everything sound more polite? At any rate, as this surveillance program encompasses global communications, and not just those among American citizens, we might amend the description to “coup d'états.”
“The national security of the United States” is, as Andrew McCarthy says, the nation’s “highest societal purpose.” Certainly, at least, it is the highest purpose of the Executive Branch of the federal government. However, on this issue, as on many others, this non-American finds himself standing behind Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Or, if you prefer, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
(This article originally appeared at American Thinker.)