NSA Spying So Isn’t About You
But you should be concerned anyway, not as a “consumer,” but as a citizen
When it comes to government surveillance stories, there’s one question almost all journalists resort to — asking ‘normal’ Americans, “Are you worried about the government collecting your phone records/emails/book buying habits, etc.?”
It might seem like a logical question to ask. Even Ira Glass of This American Life tried it out on his staff after talking to some Gitmo lawyers who find themselves perpetually spied on.
But it’s an insidiously bad question. It’s the kind of question you ask a ‘user,’ not a citizen.
Asking a citizen about whether she cares whether the Post Office records the metadata of every piece of *her* mail is likely to get an answer like “I don’t care if the government knows who sends me junk mail, so long as they keep us safe from terrorists. It’s like asking someone, “Are you worried that the State of Georgia executes mentally retarded killers?”
Neither are issues that are about you or me. Most of us aren’t retarded. Most of us aren’t killers. Most of us don’t have the kind of penpals likely to attract the attention of this government.
But some citizens do have those kinds of connections. And some citizens have very low IQs that make them incapable of understanding the consequences of their actions.
So journalists who formulate the spying question to make it about an individual are doing the country a disservice. The forumulation elides complex constitutional questions about how and why citizens should want to limit government power, about how citizenship is more than voting your own interest and how much risk we as a society are willing to accept.
Unfortunately, our culture and our media these days seems to treat us as consumers, rather than citizens. (Oddly, a cop is much more likely to use the word citizen in their daily work than a journalist.)
Sadly, Frank Rich doubled down on the trick in a New York magazine column on July 3. He blamed the citizenry for the audacious policies of two successive presidencies who together secretly built pipelines from the NSA and FBI into the nations’ communication infrastructure. Now the government is siphoning billions of records a day on American citizens — without even a thought of getting a warrant as required under the Fourth Amendment.
“Those who complain about the loss of privacy have an obligation to examine their own collaboration, whether by intent or apathy, in the decline and fall of the very concept of privacy,” Rich wrote. “We can blame terrorists for many things that have happened since 9/11, but too many Americans cavalierly spilling TMI on too many porous public platforms is not one of them.”
The fact that you choose to share pictures of your vacation publicly on Facebook doesn’t mean that you no longer have any expectation of privacy.
Even the most brazen Instagrammer or FourSquare sharer retains the right as a citizen to question what the hell a democratic government is doing recording the email, mail and phone calling patterns of every citizen, even if a secret court seems approved it on some grounds the public can’t see.
Of course there are good reasons even as a “consumer” to think the government shouldn’t have five years of your phone and e-mail and internet browsing records.
For example, security researcher Moxie Marlinspike wrote a thoughtful piece arguing that most people “probably do have something to hide” without even knowing it, and that the ability to break the law without being immediately caught is actually good for society. Professor Daniel Solove years ago wrote an excellent book trying to influence the rebuttal to people who say, “I’ve got nothing to hide.”
But whether you, in particular, have something to hide, remains beside the point.
Here’s some other ways to ask questions of normal Americans about the U.S. government’s secret surveillance architecture that would ask them to engage as citizens, not consumers:
“Do you think the government collecting the cellphone and internet records of all Americans, including Tea Party members, Occupy protestors, psychiatrists, journalists, gun owners and environmental activists, could have a chilling effect on political participation? ”
“Do you trust that the government will only use those records in a very limited, and targeted way, even if there’s another headline-causing terrorist attack?”
“Would you have trusted Bill Clinton with those records? How about Ronald Reagan? Nixon? Kennedy? Hilary Clinton?”
“If you think it’s okay for the government to have the communications records of all Americans without particularized warrants, do you believe the government should be using algorithms to search for suspicions patterns of communications that might indicate a potential terrorist or spy?”
“How about detecting insider trading? How about detecting leaks to reporters by government employees or contractors? Catching child pornographers? Profiling anarchist and radical environmental groups? Identifying potential drug dealers? Nabbing citizens who order from overseas pharmacies illegally? On what basis do you draw the line?”
“Using cellphone records, which include location data, the government could easily detect who was speeding. Given highway accidents kill thousands of Americans a year, should the government be mining these records to issue speeding tickets by mail?”
“Since a terrorist or fast driver might find some way to evade or hide from the government’s phone and internet record collection, would you support requiring every internet-enabled device to report directly to the government who the user is contacting and what they are doing online?”
“Would you support the government having 24/7 access to your house, if the government promised only to go inside to search when you aren’t there for the purpose of finding evidence of terrorism?”
“Do you believe that allowing the NSA to collect and monitor Americans’ communications is worth losing the moral standing to criticize authoritarian governments like Syria and China when they do the same thing?”
“Should the government be using these communications records to determine which American citizens should be put on the no-fly and selectee list? How about the president’s kill list of American citizens?”
“Do you believe that mass collection of records about all American citizens’ daily lives comports with the spirit of the Fourth Amendment’s declaration that ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated?’”
Those are all ways of framing questions about the NSA revelations without making it about what any one individual has to hide or fear.
We now live in the age of big data and big data pipes and services.
America is at the forefront of these technologies, and we had a chance to set a golden example of how a democratic government confronts an age of ubiquitious digital communications that are technically easy to spy on.
Instead, we let the Bush administration trample the law via warrantless surveillance in the U.S. after 9/11.
Congress then rewarded that lawbreaking by legalizing much of it in 2007 and 2008. Obama, once a constitutional law scholar, then gave it further cover of law by secretly stretching the Patriot Act with the acquiescence of a secret court whose secret rulings are, well, secret.
But now thanks to a plucky whistleblower shoving the program in our collective faces, we have a chance to see the surveillance state we’ve allowed to be built and confront it as citizens, and not as consumers.
The only question is will we be worthy of Snowden’s confidence in us?
