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The Banality of the Surveillance State
Independent of revelations yesterday that the FBI has been abusing its NSL powers for years, it was also reported that the Federal Government is now launching "a domestic intelligence system through computer networks that analyze vast amounts of police information." The system will store broad new categories of data about the behavior of Americans -- from the mildly suspicious to the perfectly innocuous -- and will create "new power to discern links among people, patterns of behavior and other hidden clues."
When asked yesterday during her weekly chat about the dangers of this new system, The Washington Post's intelligence reporter Dana Priest, one of the country's few truly great investigative journalists, said this:
Savannah, Ga.: Dana, what's the flap about this new info sharing system? From what I read in the article, it only shares existing data. . . . Anyway, this seems to be merely a case of reality catching up to Hollywood . . . after all, we've been watching "CSI" and "NCIS" for years where they make a few keystrokes and a suspect's entire life comes pouring out. This was supposed to be one of the things put in after Sept. 11, correct?
Dana Priest: Ah ha -- but was is "legal" information? Sure, if you get arrested that's one thing; or even picked up as a suspect in a crime. Let's use the example in the story: You have a flat tire near a nuclear power plant. The cop puts that into the data bases and discovers you've had three flat tires outside nuclear power plants in the last year. Now that's interesting and worth looking into, right?
But does that mean something as simple and innocent as a flat tire gets added into the data base. Would that be legal? Switch out "flat tire" for "defaulting on a loan" or "attending a political rally" or "gun purchases" -- all legal things. Does it bother you that the police could link up your political rally attendance if they had some other reason to query your information? You see where it's going . . . . lots of questions. Would have to have safeguards to make it acceptable, I'm certain.
The amount of data which the Federal Government now collects and stores regarding the behavior of innocent American citizens is truly staggering. It is just literally true that the Government now maintains sweeping digital dossiers on its citizens, including ones who have never been charged with, let alone convicted of, any wrongdoing of any kind. And without much debate or attention of any kind, the amount of monitoring and the scope of the data just keeps growing. Since when was sweeping domestic surveillance and keeping records about innocent Americans ever supposed to be a function of the Federal Government?
The grave dangers from this growing Surveillance State don't require nefarious, cartoon-like government plots. The most genuine dangers are far more banal than sinister. Just as Priest suggests, it doesn't take cackling, Lex-Luthor-like government villains to cause serious abuse. Particularly given the almost complete lack of oversight in how the executive branch functions, it's very easy to imagine the definition of what's "relevant" and "appropriate" slowly (though inexorably) being moved increasingly outward even by well-intentioned though overzealous law enforcement officials, to say nothing of the ones who aren't well-intentioned. In fact, it's almost impossible to imagine that not happening.
It's extremely easy to find people who believe that attendance at a political rally, or membership in certain political groups, or even more pedestrian conduct referenced by Priest, constitutes reasonable grounds for "suspicion." That mentality is obviously prevalent among some substantial segment of federal government employees and intelligence and other law enforcement agents. The decades of intelligence abuses leave no doubt about that.
People who think that way, and who are empowered to maintain dossiers on Americans and investigate them, don't think they're doing anything wrong by using those activities to consider certain American suspicious and to spy on them or investigate them further. They think they're doing their jobs, battling dangers. And as is true for all government power, the greater the scope of the domestic dossiers, the larger it will grow, the more uses that will be found for it. And that's true regardless of the good faith of the Government at any given moment or its party or ideology. Variables like ideology or bad faith can simply make those dangers even more pronounced.
The danger comes from ineptitude and the inevitably creeping nature of unchecked government power at least as much as it does from more dramatic, malicious spying plots. As one blogger put it yesterday in commenting on the new domestic spying data base:
I fear a surveillance society not because I think that the government will actually catch me in my subversion, but because I fear that it will think that it's caught me in my subversion. The pressure to "produce results" leads to the issuance of too many traffic tickets. Imagine what it will do when someone has to justify spending a bajillion dollars on some kind of algorithmic AI that's supposed to psychohistorically predict when a new 9/11 will change everything all over again forever. The more I order from Amazon, the kookier its recommendations for me. Entrail-reading isn't science, no matter how much one wishes it were so.
The real problem here, as is true for virtually every one of the political developments that actually matter, is that these issues are almost completely removed from establishment political discourse. This is all justified by the all-purpose Magic Word -- "Terrorists" -- and so very few political figures are able or willing to oppose any of it or articulate the reasons why it's a concern.
The political faction which forever claimed to stand for limitations on federal power (the "conservative" movement) is its principal cheerleader, while the "opposition party" either supports it just as much or doesn't care nearly enough to talk about it. Thus, outside of a few advocacy groups and other scattered commentators, the dangers posed by these developments are virtually never heard, let alone considered. So the Surveillance State just continues not only to grow and grow, but does so without any real attention, oversight, or limitations. As usual, there is an inverse relationship between the most consequential matters and the attention such matters receive in mainstream political debates.
UPDATE: Speaking of the inverse relationship between significance and media attention, there was this fleeting, ignored moment from last November:
As Congress debates new rules for government eavesdropping, a top intelligence official says it is time that people in the United States changed their definition of privacy. Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people's private communications and financial information. . . .
"Anonymity has been important since the Federalist Papers were written under pseudonyms," [EFF Senior Staff Lawyer Kurt] Opsahl said. "The government has tremendous power: the police power, the ability to arrest, to detain, to take away rights. Tying together that someone has spoken out on an issue with their identity is a far more dangerous thing if it is the government that is trying to tie it together."
"There is something fundamentally different from the government having information about you than private parties," he said. "We shouldn't have to give people the choice between taking advantage of modern communication tools and sacrificing their privacy. It's just another 'trust us, we're the government," he said.
The Bush administration announces that we better change our definition of "privacy" -- no more anonymity from our own government. That seems like a significant announcement, and it thus received no attention. I wonder if a single television news or cable show mentioned it.
Equally significant: the administration says that we have no chance of keeping information about what we do from the Government, and instead, our only hope is that oversight and safeguards prevent abuse. That's the same administration which then demands that Congress provide it more and more spying powers without oversight or safeguards, and the Congress continuously complies. By their own premises, there are no safeguards against abuse of the virtually limitless reach of the Surveillance State.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power. His second book, "A Tragic Legacy", examines the Bush legacy.