The United States government, in the guise of the National Security Agency, is collecting and mining
data from millions of American phone and internet users, under a secret court order. The revelations — broken first by Glenn Greenwald in The Guardian (U.K.) — raise serious questions about whether our privacy means anything in the internet age and whether the open-ended war against terror is more damaging to our civil liberties than the potential of another attack.
And yet, we are focused on the man — and on leakers or whistleblowers more generally — who brought us the news and the man who leaked it to him, rather than on the news itself.
That is crazy. I understand the interest in Edward Snowden, and I can even understand some of the vitriol coming from supporters of the data-mining program. But this is beginning to obscure the real questions that need to be asked.
First, when did “if you’ve done nothing wrong, then you have nothing to worry about” become the standard for justice in the United States? Amendments IV through VIII to the Constitution all deal in some way with protecting potential defendants against government overreach, something with which they were quite familiar. This is not to say that they would oppose the Obama administration’s data-mining program — speculating on something like this is a waste of time — but it does show a healthy skepticism of government power. Taken together, the rights enumerated amount put the onus on the government to provide more than a general rationale for action. In this case, I would argue that a data-mining program that collects information indiscriminately is too broad, because it potentially ensnares all Americans within a very broad net whether they are under suspicion of anything or not. The FISA courts have obviously disagreed.
Second, we need to have a very public debate over secrecy. We have made numerous concessions to the national security state in our history, most recently with the passage of the USA Patriot Act and the approval of a variety of what used to be extra-legal detention measures. And we have done so with little debate, usually out of fear. And while the fear may be justified — nearly 3,000 were killed on 9/11, the Japanese did attack the United States in 1941 — the actions we have taken when in the grip of fear have often had long-term deleterious effects or were just plain wrong.
One of the more troubling outcomes of both the cold war and the war on terror has been the tendency to place public policy decisions behind the cloak of secrecy. We live in a representative democracy, which requires transparency to function properly. That means we need information. That requirement, however, is at odds with the national security mindset — and that can be OK. There are pieces of information that cannot or should not be shared publicly — troop movements, the identity of intelligence operatives, details about who is being investigated (during the investigation) — but that does not mean that the broader outlines cannot be or should not be fair game for debate.
That seems to be the issue here. As Paul Waldman points out, no one has been able to make the case that allowing the American public to know of the existence of such a broad data-mining program like the one revealed this week puts anyone in harm or hinders the American intelligence community to combat terrorism. American “intelligence officials,” he writes, may be
saying that the terrorists had no idea that we might be tracking their communications. But that just doesn’t pass the smell test.
What the revelation does, however, is force questions of the program’s legitimacy into the open, where it can get the kind of full-throated debate that it deserves. And yes, I know the program is legal — it was authorized by the secret FISA courts, etc. — but that does not necessarily make it right, or even mean that it is a wise and efficient or effective use of resources. (What’s legal and what is morally or ethically right are not necessarily the same things.)
Let the president and the intelligence community defend the broad outlines of the program to Congress in an open, public forum. Let civil libertarians make their case. Let’s hear why — and to what extent — our civil liberties can be sacrificed and what it is we are getting in return.
Three, do we even have an expectation to privacy in the modern age, which features cameras on nearly every street and technologies that make data-mining, not only by governments but by corporations, possible? Some will argue that we have ceded our right to defend the notion of privacy, that we have made a tacit bargain, exchanging it for daily conveniences and everyday safety. And there may be some truth in this. We do live a surprising amount of our lives in the public sphere — far more than we ever have. At the same time, those individual choices should not be viewed as a definitive decision by us as a culture and it is unclear whether most of us truly understand the trade-offs we are making or the larger context in which we make them. Again, the accrual of small concessions — surveillance cameras at ATMs became cameras on street corners and later cameras that can record traffic infractions — needs to be discussed. Given the reaction every time Facebook updates its privacy rules, it seems pretty clear that Americans still value privacy, even if only in the abstract, and would welcome a broader discussion of what privacy is and what it means in the corporate and government arenas.
This is not, or should not be, a partisan issue. The expansion of presidential power, the growth of the national security state and erection of a permanent war machine have taken place under presidents of both parties dating back to World War II. And their growth has come at the expense of civil liberties, which have been undergoing a slow and steady erosion for too long.
I think it is pretty clear where I stand on these issues. What is less clear is where the American public stands and whether that even matters anymore.
Send me an e-mail.
Hank Kalet 