In reviewing the public’s ambivalent reaction to the disclosures of NSA data mining, I find that some people conclude that it’s no big deal, while others are uneasy but can’t quite explain why. It’s just a modest generic invasion of privacy that is not even activated in most cases. Presumably, this is a weapon that the authorities need to keep us safe. After closed-door hearings yesterday, some skeptics on Capitol Hill were somewhat reassured that safeguards are adequate.
If you are in this camp, here are three good reasons to reconsider.
First, the history of such surveillance is that it tends to be abused. As heedless of civil liberties as Attorney General Eric Holder has been, he is surely better than whoever the next Republican Attorney General might be. Remember Alberto Gonzalez?
Secondly, the authorities tend to define terrorism down. After the Patriot Act was passed, Attorney General Gonzalez kept assuring the Congress and the American public that its sweeping powers would only be used against suspected terrorists. But terrorism is in the eye of the beholder.
A 2010 report by the Inspector General of the Justice Department on the FBI’s interference with constitutionally protected domestic activity documented that the government agents wildly exceeded their authority in their pursuit of domestic activists. The FBI targeted such groups as the Society of Friends, Greenpeace, the Catholic Worker, and various antiwar rallies. The report criticized “the broad definition of terrorism used by the FBI,” which presumably triggers use of Patriot Act tools.
Another report, “Mapping Muslims,” shows how excessive surveillance of Muslims by police in New York City has interfered with the peaceful right of worship. The extensive police monitoring has not revealed or foiled a single planned terrorist attack.
If Martin Luther King were alive today, using Gandhian techniques to resist segregation and to demand the right to vote, the Patriot Act combined with the surveillance state might have sufficient powers to put him out of business. Even before the era of al Qaeda and Internet surveillance, J. Edgar Hoover damn near succeeded in shutting King down. One of King’s advisers, after all, was an actual communist.
We don’t know the degree to which data gathered by the NSA in its general electronic dragnet is shared with the FBI and local police—that, of course, is classified information—but it would be odd if it were not shared. The pattern of abuse revealed in the Inspector General's report is an old one, dating to the Palmer Raids on antiwar radicals of the World War I era, the McCarthy-HUAC period, and the Nixon presidency’s snooping and disruption.
We know something about the Cold War domestic abuses thanks to the investigations of the Frank Church committee, which rode the wave of Watergate revulsion to expose an entire world of domestic spying. The National Security establishment of that period was dismayed that we divulged such state secrets, but guess what? The Church exercise made us a freer and more secure people by putting the need to track genuine foreign threats back in its rightful and constitutional place. But two administrations have used the memory of the horror of 9/11 to scare most lawmakers silly, and there is no Church committee today.
The tendency is for genuine criminal activity or foreign espionage and now foreign terrorist attacks to get blurred into peaceful radical dissent. In the current issue of the Prospect, I review the new biography of Albert Hirschman, Worldly Philosopher. Among the book’s other revelations is the fact that Hirschman, who had to flee fascism first in Germany, then Italy, then France, and who worked on anti-fascist causes in the late 1930s, was slated for a job in the Marshall Plan but denied a security clearance. As an anti-fascist in Europe, Hirschman, a liberal, could not avoid consorting with radicals. Today, think of the people who are not by any stretch of the imagination “terrorists,” who are a couple of degrees of separation away from those on NSA watch lists.
I have a good friend who leads a summer camp that brings together Palestinian and Israeli children to attempt to build empathy and trust. Somewhere on her journey, some Palestinian leader doubtless emailed or phoned some other Palestinian leader who is on some list. It all cycles back. This is known as guilt by association. What list is my friend on?
Or consider the global labor movement. In dozens of countries, including our dear friend Mexico, not to mention China, if you try to organize a free-trade union you are an enemy of the state. Only radicals have the nerve to try it. And to the extent that the AFL-CIO’s Solidarity Center works heroically to help unions in authoritarian countries, they necessarily consort with radicals, who may consort with even more radical radicals. If you tell me that the gumshoes who work for the FBI and the NSA have the subtlety and nuance to distinguish benign radicalism from terrorism, have a look at the 2010 Inspector General’s report and the entire history of McCarthy and HUAC. Read about Albert Hirschman.
Finally, it is not at all clear that the government needs such sweeping, extra-constitutional powers to keep us safe. Has everybody forgotten the run-up to the 9/11 attacks? As former counterterrorism director Richard Clarke’s testimony made achingly clear, the intelligence authorities did their jobs. They knew that al-Qaeda was up to something big in the U.S. This did not require a Patriot Act, much less generalized NSA data mining.
The information was forwarded to Cheney, Rumsfeld, and the White House. But the Bushies didn’t want to know about it because they were obsessed with Iraq, and blew off Clarke’s repeated requests. Bush took advantage of the resulting hysteria, diverted attention from his own culpability, and stampeded Congress into a grab bag of every gumshoe’s wish list for extra legal powers.
Nor is it clear that the data-mining gets credit for foiling post-9/11 attacks that were mainly broken up with the usual techniques of foreign intelligence gathering and domestic police work. Remember the assassination of Bin-Laden? The tradecraft was all done overseas, and not directed against Americans.
As technology philosopher Jaron Lanier points out, the Facebook Generation has been trained to think that privacy is no big deal. What the hell, let everyone know all about me. Gail Collins observed in a recent New York Times column that when she emails her husband that they need to buy curtains and a curtain ad shows up on her computer, the horse is already out of the barn.
Before the citizenry pushes back on government data-mining, we need to reboot how we feel about commercial invasions of privacy. One idea is a general opt-out law. People who don’t want their personal communications used for commercial purposes could sign a form, and then their email and Internet use would be kept entirely private under penalty of law. Such users might need to pay a small monthly fee for email, as we do for phone service, but it would be worth it. The very exercise would also enrich the national conversation about security and liberty.
So, this is more than a vague and remote invasion of privacy that affects only people with something to hide. It is a needless assault on our free society.
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