A number of organizations are uniting to sponsor a day of Internet protests on February 11 against mass surveillance by the NSA. You can find out more here.
With apologies to all my non-American readers, I have no problem with the NSA spying on foreign entities or persons. Hey, that’s why they exist! I do believe they should have well defined governance even in terms of spying outside our borders. Sure I’m willing to grant them a lot of leeway to prevent another Pearl Harbor, or 9/11. But you want to spy on an allied leader? I think that should require a Presidential Directive. On the other hand, you want to track the entire network of communications as it emanates out from a communications pattern detected in an Al Qaeda stronghold somewhere? Fine. Even though it sweeps in a lot of innocent people? Yup. Even though it crosses the U.S. Border? With proper governance.
If the U.S. government is going to spy on people in the U.S. it needs to allow for all the constitutional protections we are supposed to enjoy. It’s pretty obvious from the Snowden leaks that current procedures do not. Administrative fiat and FISA Court rubber stamps have replaced our constitutionally mandated checks and balances. And that is what has to change. We’ve seen a few small improvements in public communications in the wake of the Snowden leaks, but no governance changes that move us closer to our accepted system of legal protections.
What I really worry about with domestic surveillance is the potential for abuse. A prominent D.C. lobbyist once told me “you can write the legislation as long as I get to write the definitions”. Even if you have legislation that restricts the use of domestic surveillance to “terrorism”, almost anything could be redefined as terrorism. Recall what happened with RICO, the Racketeer Influenced and Corrupt Organizations Act. RICO was established to fight organized crime, a.k.a. “The Mob”. But the ink hadn’t dried on the bill before it was being used for other things. It has even been used to suppress Pro-Life groups. How long before any collection of mass surveillance data is exploited to go after suspected tax evaders, drug dealers, drug users, or political protesters?
Two states have now legalized recreational marijuana usage and many more have legalized it for medical use, yet it is still illegal on the federal level. This administration is not going after users or legal producers in states where they are following state law. But that policy could easily be reversed by the next administration. We always hear claims about how terrorists exploit the drug trade to raise funs for their activities, so how hard would it be to justify mining surveillance databases to identify and prosecute state-legal but federally-illegal drug users based on this alleged terrorism connection? It is not that far-fetched.
It is also not far-fetched to consider the use of mass surveillance data to go after political organizations. You don’t have to go back to the Nixon administration to find abuses, we are still in the midst of an IRS abuse-of-power scandal when it comes to approving 501(c)(4) status for conservative organizations. Whatever your political leanings this should be a concern. If a Democratic administration can abuse power against conservative organizations, a Republican administration can do the same against liberal organizations. Given that terrorist organizations are political movements that have embraced violence, how hard would it be to justify using domestic surveillance against non-violent political movements? I can hear the argument now: “today they are non-violent, but if we don’t spy on them how will we know if they are going to stay that way?” To say that is the slippery slope towards totalitarianism is a vast understatement. 1984 wasn’t 1984, but 2024 might be.
It’s time we brought back some balance between our need to defend ourselves and the risks in allowing government to exceed more than a very limited amount of interference in our lives. That’s not to punish, or neuter, the NSA or other agencies. It’s to make it clear what they can do, when they can do it, whose approval they need, and that sufficient checks and balances exist for the American public to be confidant that the protections they believe are afforded to them by the Fourth Amendment to the U.S. Constitution are indeed in effect. Benjamin Franklin (may or) may not have meant his famous words “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” in the way we interpret them today. But he should have.
Note that I’m not discounting the spying, I mean tracking, that goes on amongst commercial entities and the risks that those bring. The difference is that governments send men with guns to do their bidding. And, historically, they aren’t afraid to use them.