Edward Snowden — a contractor for the NSA — triggered an explosion of controversy by leaking documents to the Guardian about the scope of NSA’s foreign and domestic surveillance program. So, a public debate is starting about mass surveillance, secrecy, and the right to privacy. However, most of the current chatter muddies the water with blanket assumptions about security or about Snowden himself. Instead, I want to have a frank conversation about our values and the type of country we want to live within. So, I’ll begin by categorizing the range of current reactions and then articulate why I think privacy is still so important.
It seems that three perspectives are emerging about the relation of security and privacy:
1. Modest compromise is fine for safety. The government — and 56% of Americans — feel that secret court orders which permit the tracking everyone is acceptable, perhaps required for safety. This group generally believes this power is only used for the specific goal of tracking down global terrorists. Since regular people don’t usually have anything to hide, they don’t mind untargeted data collection. They can’t “feel” it and don’t believe it will affect their daily lives, except to foil some bad guys. This group doesn’t believe that gathering “metadata” about people’s communications is actually an infringement of privacy. Even though it builds a complete communication picture of where they have been, with whom they have talked, how often, and when; the exclusion of “what” they talked about makes it ok. Basically, they trust that good people are in charge.
2. A degree of surveillance within a democratic state is fine so long as transparency and accountability exist. These people are on the fence. They want to be safe and believe that targeted and temporary surveillence can be useful. At the very least, they believe a public discussion needs to happen so that programs which gather and use this data cannot operate above the law or in secret. The existence and scope of these programs needs to be determined by the public and not by a few people above the law.
3.Secretly spying on the general public is wrong and should be actively thwarted. People like Julian Assange (of Wikileaks) and Jacob Appelbaum (of Tor) are examples of people in this camp who take those same values a little further. They believe the current unfettered access to everyone’s information is the definition of a totalitarian state, so they are actively fighting the abuse of state power. Ultimately, these people privilege liberty over safety. This position believes that freedom requires existential risk. I deeply disagree with labeling these people terrorists as well as denying them any due process of law.
So, the public discussion will continue on finding the right balance between security and privacy. The least productive discussions are mired in real-world details, technical minutiae, and assumed facts about what can keep us safe. I prefer to start with identifying values that I care about and then work to find a practical response. I care less about the final outcome than the quality and honesty of discussions about our shared values.
We Still Need Privacy
Let’s start with thinking about the “effects of power.” Instead of only considering the stuff it potentially takes away (rights, privacy, freedoms), we need to understand what it produces, the new realities it creates. Governmental power shapes how a society operates, defines it’s objects of knowledge, and even fabricates what it means to be an individual in that society. This ideally happens through a slow unfolding of generative frameworks that influence from a distance and not from the direct micromanaging of details. A detail fixated government attempting to control is a government given to tyranny.
The amount of privacy we have is directly related to the type of society we live within. So the question becomes, what constitutes a breech of privacy? I think a little technical understanding is important here, so let me explain. Today, even when you aren’t doing anything wrong, your data trail is being recorded, at the very least. Further, that trail is considered a legally accurate representation of you. For instance, surveillance didn’t stop the Boston Bombers, but afterward everyone they knew was a conspiracy suspect. If the pattern of an innocent person has proximity to dangerous parties, that person is suspected guilty until proven innocent. Data can be retroactively policed and used to accuse and convict if the government deems fit. Historically, machine created data-trails are taken at face value, even though looks can be deceiving. This adds another layer of danger via misinterpretation.
This data is stored long-term because everyone is potentially a suspect. We always knew the NSA could target and intercept the communications of suspicious individuals. We didn’t know they were recording and storing the communications of everyone for possible future inspection. This system of power, fully implemented, creates a new type of existence where everyone is secretly subjected to an ongoing analysis that never ends and a ruthless examination that permanently measures that gap between your individual attributes and some inaccessible “norm.” That description isn’t meant to be alarmist. It is simply descriptive of how pattern recognition works and it gives me the chills.
When those practices are secret, non-reversible, and the power of one group over others doesn’t have public regulation, we cross the line from a constitutional relationship into an authoritarian one. We need privacy not only to protect us from possible corruption, but also as proof that our social contract is still intact. The primary threat to that social contract is secrecy and lack of accountability. To say that massive secret surveillance programs do no harm is to deny history. The worst regimes in history were not imposed by force, but arose naturally from a complicit cultures that trusted their government’s will to power. Even within America’s history — like McCarthy’s list during the Red Scare — the reprehensible surveillance programs of our worst past is now a generalized fact for every American. We need something better than FISA to protect our constitutional rights. We need laws that are public so we can examine them and vote for representatives to uphold them. The right to privacy was enshrined in our constitution because our framers understood the potential for governmental abuse. A world-wide electronic surveillance apparatus is potentially more dangerous than any other single threat. My fear is that a new normal will form around this low point out of a misplaced trust of authority.
“In matters of power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.” – Thomas Jefferson