It turns out that the NSA’s domestic and world-wide surveillance apparatus is even more extensive than we thought. Bluntly: The government has commandeered the Internet. Most of the largest Internet companies provide information to the NSA, betraying their users. Some, as we’ve learned, fight and lose. Others cooperate, either out of patriotism or because they believe it’s easier that way.
I have one message to the executives of those companies: fight.
Do you remember those old spy movies, when the higher ups in government decide that the mission is more important than the spy’s life? It’s going to be the same way with you. You might think that your friendly relationship with the government means that they’re going to protect you, but they won’t. The NSA doesn’t care about you or your customers, and will burn you the moment it’s convenient to do so.
But it is the concept which runs alongside the constant and essentially unconsented gathering of data which is most mendacious: the contention that privacy is a luxury, a bygone; an unnecessary and even regressive notion in a technological age of openness and a hinderance to the safeguarding of a just society. It is precisely in a technological society that privacy emerges as a central, vital plank of legitimate democratic function. It might be different if openness were universal, if we could scrutinize the choices of our leaders and hold them to account; if we could get unvarnished access to information about the things we buy and the services to which we subscribe, and know the probable consequences of our decision rather than be soothed with pablums and misdirections; if we were encouraged and enabled to participate in the creation of the world, rather than sidelined as the governed, the consumers. But this is not an era of radical transparency across the board. It is not an era of growing direct democracy. It is the era of transparency for the masses, of autocracy dressed as liberty. The powerful are concealed by law and contract, and by power. The rest of us are exposed and encouraged to think of this exposure as freedom.
There is a significant psychological price to being constantly aware of the variety of ways in which your activity might be tracked. To be blunt, it makes you feel crazy. That is why, if you want a quiet life, you shouldn’t make friends with security analysts: they tend to get drunk and describe the ways in which your phone can be turned into a listening device until the skin on the back of your neck starts to crawl, because it’s their job to know about such things. There is a non-zero cost to this sort of awareness.
In a choice between paranoid vigilance and easy participation, few choose paranoia. It’s just easier to change your behaviour. A friend who works in computer security told me that “the most important censorship happens between your head and your keyboard”. Self-censorship is significant in a world where, increasingly, as the tech journalist Quinn Norton observes, “falling in love, going to war and filling out tax forms looks the same: it looks like typing”.
E-mail isn’t that different from mail. The real divide, historically, isn’t digital; it’s literary. The nineteenth century, in many parts of the West, including the United States, marked the beginning of near-universal literacy. All writing used to be, in a very real sense, secret, except to the few who knew how to read. What, though, if everyone could read? Then every mystery could be revealed. A letter is a proxy for your self. To write a letter is to reveal your character, to spill out your soul onto a piece of paper. Universal literacy meant universal decipherment, and universal exposure. If everyone could write, everyone could be read. It was terrifying.
Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide. But the problem with the nothing-to-hide argument is the underlying assumption that privacy is about hiding bad things. By accepting this assumption, we concede far too much ground and invite an unproductive discussion about information that people would very likely want to hide. As the computer-security specialist Schneier aptly notes, the nothing-to-hide argument stems from a faulty “premise that privacy is about hiding a wrong.” Surveillance, for example, can inhibit such lawful activities as free speech, free association, and other First Amendment rights essential for democracy.
The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy. In contrast, understanding privacy as a plurality of related issues demonstrates that the disclosure of bad things is just one among many difficulties caused by government security measures. To return to my discussion of literary metaphors, the problems are not just Orwellian but Kafkaesque. Government information-gathering programs are problematic even if no information that people want to hide is uncovered. In The Trial, the problem is not inhibited behavior but rather a suffocating powerlessness and vulnerability created by the court system’s use of personal data and its denial to the protagonist of any knowledge of or participation in the process. The harms are bureaucratic ones—indifference, error, abuse, frustration, and lack of transparency and accountability.
How can we distinguish between better and worse surveillance states? Balkin identifies and contrasts two. The first is an authoritarian surveillance state, while the second is a democratic surveillance state. And the recent scandals clearly reveal that we live in an authoritarian one.
What do authoritarian surveillance states do? They act as “information gluttons and information misers.” As gluttons, they take in as much information as possible. More is always better, indiscriminate access is better than targeted responses, and there’s a general presumption that they’ll have access to whatever they want, at any time.
But authoritarian surveillance states also act as misers, preventing any information about themselves from being released. Their actions and the information they gather are kept secret from both the public and the rest of government.
Even though the paper is from 2008, this description of an authoritarian surveillance state fits perfectly with recent revelations about the Obama administration. The information that the National Security Agency has been seeking, from phone metadata to server access, is about as expansive as one could imagine. Meanwhile, the administration’s war on whistleblowers, which received public attention after revelations about the surveillance of AP reporters, shows a lack of interest in measures of transparency and accountability.