Pardon Me, I’m Dying

Contemplating mortality under surveillance.

“Even death, faced with the option of death or life, she would choose life.” -Jose Saramago,Death With Interruptions

The fear of imminent death excuses a wide range of behaviors that would otherwise be considered irrational, illegal, or immoral. Consider that an American will spend about half of her lifetime medical costs in the last year of her life. Additionally, most, if not all, states in the U.S. allow defenses to most crimes based on a fear of imminent death—under theories of either self-defense or duress. Criminal defenses generally require the fear to be objectively reasonable—that is, someone else would reasonably think it to be the case—but this functions as a check against testimonial loopholes rather than a check on actual behavior. A subjective fear of imminent death is usually sufficient to trigger an instinctual scramble to avoid it, overriding other restraints on behavior. [1]

The mere possibility of death does not trigger such primal subroutines. The possibility of death may be enough to alter habits and actions, but only to a degree; one might take a drunk person’s keys to prevent them from driving home, but likely wouldn’t do the same to a sober person because there have been a rash of recent fatal car accidents. Performing any activity is accepting the risk that death could come from it, even if the perceived risk is very small. Although there is a bias for survival, a small subconscious acceptance of death is necessary for people to function in everyday life; without it, we would flit between fearful stasis and chaotic self-defense.

Human organizations function in similar ways: each have a bias for survival that weights decision-making depending on the perceived severity of the situation at hand. While a business can—sometimes—go into bankruptcy to abandon its obligations and survive as an entity, a state modulates its survival bias by granting itself more power. In the United States, state power has accumulated most sharply in wartime, and particularly in wars where the survival of the nation—or a great number of its people—was perceived to be at stake. Some of these powers recede after the threat has subsided, particularly the ones that clash most obviously with constitutional rights or national values. But generally, this behavior is in line with how most individuals modulate their survival biases—that is to say, values are largely abandoned at death’s doorstep, or perhaps in her front yard.

But while there are ways to check the individual or organization who irrationally sees death around every corner—a fear of imminent death defense to a murder charge will not get you far unless a jury deems that fear objectively reasonable, for instance—there is no check for a state apparatus that does the same. In any state’s negotiation with itself, just as in a person’s negotiation with herself, the threat of imminent death will trump all other concerns, and the state’s monopoly on force leaves no other agent to mitigate this survival instinct run wild. In other words if a person can feel justified in committing a crime to save himself or others from imminent death, how can we expect the government to not hold a similar conviction?

By increasing access to goods and information, technology democratizes the capability of individuals, for both good and ill. Although technology has enabled the publication and communication of their aspirations to do harm, it has not rendered every potential criminal, murderer, or terrorist an expert in the act, or rendered them competent. Because surveillance is better at tracking aspirations than competence, and because monolithic governments are generally unaccustomed to dealing with decentralized threats, the response has been to treat every possible threat as a monolith. A war on terror mentality credits potential threats with equal sophistication levels based on an aspirational weapon of choice (think bombs versus guns), instead of on their capacity to do harm.[2] Rather than treating them as individual criminal actions, each of these potential acts is a potential attack, a note in a building crescendo of threats from a unified, sophisticated conspiracy, a salvo in a larger war directly impacting the survival of the nation, justifying an increasingly broad and anticipatory dragnet. Constitutional tap-dancing for investigating attempted or planned crimes is more tolerated if it is done under the guise of national security. Actions taken to prevent attacks are out of step with the actions taken to prevent existing violent or criminal threats to American lives, and violent acts that don’t fit a unified war on terror theory—such as mass shootings, [3] which themselves are rarely called attacks—fall through the cracks. The terror attack label is broad enough to cover most any potential crime and yet enables a raft of additional state privileges. A war on terror—and to a different extent, the war on drugs—has created a security apparatus that functions as though the survival of the nation—and troublingly, the apparatus itself—is constantly at stake, no matter the actual nature of the threat.

Conversely, technology has atomized rights by increasing the volume and variety of traceable human interactions, and by spreading these interactions across a broad spectrum of services and protocols, each with different expectations of privacy. (Think of the difference between e-mail, a Facebook page, and a Twitter feed.) Potentially actions can thus be more finely sliced than ever: instead of the single distinction between listening to phone conversations over a wiretap and not doing so, phone metadata can be lifted, text messages (or text message metadata) can be intercepted, location data can be triangulated, or some combination of all of these. Atomizable rights are more easily infringed upon, because alone they do not hold the same perceived weight as the monolith of a potential attack (and procedurally they tend to be addressed alone). The framing question moves from “Is the possibility of mass violence an acceptable cost for living in a democracy?” to “Would you die to protect the privacy of your Facebook feed or phone metadata?” and justifying a continuing mission creep.

The end result is a parallel justice system, where the checks against government power can be overridden by a manufactured urgency. Although the end goal is the same—preventing harm to Americans, and prosecuting those that do or attempt to do harm—a “war on X” mindset manufactures an urgency that enables creeping rights infringement. [4]

It seems an impossible task to control the actions of an individual in the moments where death seems imminent, let alone the actions of a state. Although reversing policy inertia is no mean feat—security organizations built for this system fight for survival in the same way that people do—reform is possible. Democratic checks tend to exist in the form of processes that presume against the government’s position. While imperfect, similar logic could be applied here. For instance, creating a presumption for transparency and against secrecy—similar to sealed court records having built-in expiration dates in some jurisdictions—would increase the burden of classification, hopefully reducing the volume of needlessly classified documents (assuming additional resources are not allocated to maintain existing classification levels). [5] For another, it seems incomprehensible that there is not a public defender analogue in secret surveillance courts, with the appropriate clearances and access to argue against the government’s position. This idea is not so far-fetched: the Supreme Court routinely requests private counsel to advocate for a particular position in a case that neither party wishes to take, and existing public defenders are largely funded by state and federal governments. Even granting the need for secrecy, a one-sided proceeding makes it difficult to view secret courts as anything but rubber stamps.

A near-death experience upends a person’s worldview, particularly in the short and medium term. Post-traumatic stress disorder is characterized by, among other things, an inability to concentrate, hypervigilance, and an enhanced startle response. [6] It might not be unreasonable to think trauma that kickstarted the war on terror has resulted in an institutionalized PTSD (the rapidity of the Patriot Act’s passage and the breadth of its scope being the supporting evidence).

And yet, every day we face death, whether in the form of disease, car accident, drowning, or random act of violence. We choose exposure to this risk as an acceptable trade-off for the freedom to make our own choices, and with the acknowledgement that death will come for each of us eventually—but hopefully not yet. In order for us to live normal, sane lives, at some point we have to stop looking over our shoulder expecting to see death. The government should do the same.

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Notes:
[1] To an extent, this can be trained away, or overridden in even more extreme circumstances (risking one’s life to save someone else, for instance).

[2] Probabilities are a bit of a shifting sand as justifications for taking extreme actions. For one, the actual probability of attack is unknowable but also actively influenced by actions taken and not taken. To the extent that such a probability of attack is unknowable, any probability given is a manufacture or guess—to say nothing of how a continuous time window would impact such an estimate (i.e., “Will a terrorist attack happen in the next 12 months vs. Will a terrorist attack happen ever again”). More to the point, if taking an action based on X probability is acceptable, the fundamental assumption—that preventing an attack is more important than preserving the privacy of someone’s data—has already been ceded.

[3] The media profile of bombings aside, guns remain the most effective way to cause mass loss of life in the United States while avoiding government notice before the fact, from a pure empirical standpoint. (For the most part, economic loss from terror attacks seem to be extremely short term, if they exist at all: http://benews.unimelb.edu.au/2012/the-impact-of-terrorism-on-financial-markets/)

[4] The scope of this is on domestic spying. While it is increasingly difficult to distinguish between foreign and American sources (although it seems unusual that the government can break most forms of cryptography but not determine if the author is American or foreign), spying is pretty much an international norm.

[5] The continued battle of secrecy vs transparency in the larger context—government, organizational, etc, is way beyond the scope of this post—but may be fodder for another.

[6] See http://www.who.int/classifications/icd/en/bluebook.pdf