Abuse thrives on secrecy. Obviously, public disclosure of matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves.
Those within the Executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American public, as well, should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.
Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.
When I was a child, I though it very likely I wouldn’t live to adulthood. Maybe all kids think that. But I had an excuse: I spent my childhood in a world in which I was reminded regularly that we teetered on the brink of nuclear annihilation and it would take very little to set it off. Everything that happened anywhere on the planet nudged the balance one way or another. Every person in the world was either for us or against us. And everyone was afraid of J. Edgar Hoover, who seemed more powerful than the president, who was afraid of him, too.
So I’m wary of people who insist on secret legal interpretations that give secret agencies secret powers. I am skeptical whenever someone tells me that only with these special powers can our intelligence services keep us safe. And whenever I hear some official reassure us that “ordinary Americans have nothing to fear,” I start to worry. How is “ordinary” defined? Who gets to decide?
When I hear someone say (and I’ve heard it a lot in the past week) “I don’t have anything to hide” I want to say “that’s not the point. This isn’t about me. It isn’t about you. It’s about us.” We can’t be a free people if we are constantly watched by the state. It’s as simple as that. (That's apart from the fact that most people who use these technologies are not US citizens and are presumed to have no rights. That doesn’t seem right.)
Librarians were vocally opposed to provisions of the PATRIOT Act when it was hastily passed and public officials made fun of us for it. “Why would we care if people are reading James Patterson?” I recall someone high up in the Bush administration saying. They didn’t want to acknowledge the issue at stake, so made light of libraries and those who use them. (Also: women with buns and glasses! Ridiculous!) That didn’t stop them from wanting to seize records from libraries. This may have happened infrequently, but we can’t be sure because it’s secret. We know it happened in Connecticut, and some brave librarians stood up and challenged a gag order that came with a National Security Letter served on their library records. At the time, it wasn’t clear if people served with an NSL could even consult with a lawyer. They did, and a lower court judge found the gag order unconstitutional. The FBI dropped their complaint rather than let it reach a higher court. Meanwhile, the PATRIOT Act was reauthorized. People served with NSLs were effectively silenced in the debate.
The Facebook effect
In the late 1980s as my local public library system went online, I remember citizens at a public meeting voicing concerns about the government keeping a history of their reading. Librarians designed their systems to erase records when books were returned, because they were concerned, too. After the PATRIOT Act was passed, we all double checked to make sure that records were being expunged as quickly as possible.
Since then, public attitudes about privacy have changed. There was an outcry against a government intelligence program, Total Information Awareness, and Congress defunded it in 2003. That was a year before Facebook was founded. We share a lot, now, and we know that what we share is gathered, sold, analyzed, and used to advertise things to us. On Twitter, Dan Sinker (@dsinker) pointed out that visiting the Washington Post to read about the NSA initiates 50 commercial data trackers. Our addiction to free access to an Internet hall of mirrors paid for through micropayments of personal information has made it perhaps inevitable that the state will use that trove of data. But the US constitution sets a higher bar for the state than it does for private entities.
I’m not sure how the legal interpretations that the state is using to justify its behavior get around the fourth amendment. I can’t tell because those justifications are secret.
How could a legal argument about constitutional law be so sensitive that it’s protected from view and public discussion? I can only imagine it’s because the state wants to protect itself from people who might reasonably object. And that’s un-American.
An example of how much this secrecy screws things up: the Supreme Court, in a 5-4 decision, refused to hear a case about warrantless wiretapping because the plaintiffs couldn’t prove they were personally affected. They couldn't because - ta da! - that information was classified.
“Calm down,” we are told. “It’s only metadata. Nobody is listening to your phone calls.” Metadata is powerful. What you say on your phone may be less important than the totality of the record of who talk to, when, for how long, and where you were at the time. Combine that with other information gathered from your email, your credit card records, and what websites you visit and a pretty full picture of what you’re up to and who you hang out with forms. (There’s a fun example of this concerning Paul Revere using actual historical records at Kieren Healys blog.)
Metadata takes a lot of cleanup – and that means there will be false positives. Ordinary people will cease to be ordinary through innocent mistakes. (Have you watched Terry Gilliam's Brazil lately?)
I’ve also heard people say “This is nothing new” often accompanied by a virtual shrug: there’s nothing we can do about it.
I suspect when I was younger, people said the same thing, but there was at least an attempt to rein in abuses of state power in the 1970s. The quotes at the beginning of this essay come from Frank Church, who chaired a committee in 1975 that exposed illegal surveillance practices of the FBI, CIA, and military, hearings that led to the creation of the FISA court intended to provide some judicial oversight of intelligence activities. (Currently, the Department of Justice seems to be arguing the court is subject to DOJ authority when it comes to releasing information.) Chris Dodd, then a senator from Connecticut, read them as Congress debated giving telecommuncations companies retrospective immunity if they allowed the state to access communications secretly – basically saying “you won’t get busted for breaking the laws we tell you to break.” In spite of his efforts, it eventually passed and it's in force now.
I’ll quote more from what Frank Church wrote decades ago, since what he said about illicit government surveillance seem so relevant today.
Americans have rightfully been concerned since before World War II about the dangers of hostile foreign agents likely to commit acts of espionage. Similarly, the violent acts of political terrorists can seriously endanger the rights of Americans. Carefully focused intelligence investigations can help prevent such acts.
But too often intelligence has lost this focus and domestic intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression. . . . intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power which are imposed by our country's Constitution, laws, and traditions.
We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes. We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as "vacuum cleaners,'' sweeping in information about lawful activities of American citizens.
That these abuses have adversely affected the constitutional rights of particular Americans is beyond question. But we believe the harm extends far beyond the citizens directly affected.
Personal privacy is protected because it is essential to liberty and the pursuit of happiness. Our Constitution checks the power of Government for the purpose of protecting the rights of individuals, in order that all our citizens may live in a free and decent society. Unlike totalitarian states, we do not believe that any government has a monopoly on truth.
When Government infringes those rights instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold number of other Americans who may be intimidated. . . . Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.