varjohaltia | NSA, Privacy and Democracy

After the NSA phone record collection news broke, there have been a number of justifications for it from the political establishment, professional pundits and the public. I find a lot of these justifications less than satisfactory and many outright unsettling.

We do not know what kind, if any, limits have been placed on the NSA/FBI in terms of their ability to share this information with other agencies. Information sharing has been an important part of the War on Terror. Consequently, unless relevant, I will refer to the actor that has been collecting data as "the government" rather than an individual agency.

But The Government Isn't Listening in on Your Conversations!

This, to me, is meaningless. The analogy here is that the government has been examining every piece of mail you (and everyone else) has sent and received, noting the date, weight, shape, addresses, sender/recipient names and so forth. They've filed all of this away to be tabulated and correlated and shared later. But they haven't opened and read your letters, so it's OK.

It Violates my Privacy

Unlike many other countries, the United States has never found it important to formalize a "right to privacy" so in many respects Americans do not have such a thing. In practice, it does exist. An expectation of some level of privacy is part of being human, it is not just a cultural construct. As such, even The United Nations Declaration of Human Rights includes the principle:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Furthermore, once the government has trawled everyone's calls, locations, and associations, they can simply get a National Security Letter and listen in all they want. To put it in other words, when President Obama says "Nobody is listening to your telephone calls" he really means that nobody is listening to ALL your telephone calls. The government is only listening in on the calls it wants to listen in on.

It Isn't Anonymous

Names or billing addresses weren't provided. This is irrelevant, because it's trivial for the government to attach that information to the records, in particular because of the inclusion of things like the IMSI or IMEI numbers and physical location.

If you were a Verizon customer we know, and if you were any other carrier's customer you can reasonably believe, that the government, in addition to everything else they know about you (which is a lot) now knows everyone you called; when you called them; where you were when you called them; where they were when you called them; how long the call lasted; whether you used a phone while driving; how fast you were driving.

This data tells a tremendous amount about you: who you socialize with, who you call, what kind of schedule you keep, where you work, what your hobbies are. Here are just some tidbits that come to mind:

You call / visit the "Save the Puppies!" meetings. Check.
You call / visit shooting ranges, you probably have guns. Check.
You called a psychiatrist specializing in relationship issues, and your wife seems to spend a lot of time with another man. Check.
You visit a particular church every Sunday, known for the colorful opinions of its pastor. Check.
You got a call from the office of an oncologist, then got a call from a nearby pharmacy's prescription fulfillment line. Check.

In short, until there's reason to suspect me, or the people I interact with of something, the government has no business keeping track of whom I interact with, where, how, or why. None.

Government Surveillance Terrorizes Citizens

Knowing that the government knows what it does will make people behave differently. Whistleblowers will be cowed. Members of some religions will feel nervous about calling each other or their place of worship, or having their phones on when they're there. Citizens considering civil disobedience against government overreach or injustice will — justifiably — fear that the government can find out who they are and come after them; and so they either won't participate in such activity, or will have to take extra precautions before they dare do so.

While ruling the European Data Retention Directive unconstitutional (BVerfGE 125), the German Constitutional Court found that knowing that one's communication metadata was available to the government would cause such a threatening atmosphere of being watched that it would impact many basic rights of individuals. It should be pointed out that in the European system the government doesn't actually get the data. Telecommunications carriers must store the data, and make it available to the government upon receiving a legal order to do so. There is also a time limit after which the data will be destroyed; this can not exceed 2 years.

In the American case, the government immediately has full access to all data, and it can keep it forever.

It's Legal / There is Judicial Oversight / Trust Us

This aspect scares me deeply. Just because you make it legal, doesn't make it right or constitutional. Furthermore, it should be glaringly obvious how a FISC procedure is a joke. If the local sheriff came to a judge and asked him to OK collecting every phone call record in his county because he thinks someone's cooking meth, the judge would laugh him out of court. Not only that, but the phone company could object to the subpoena, arguing that it is unconstitutionally broad. In essence, the government can ask the courts for the power to obtain private information, and the subjects or keepers of that information can contest the need or wording of such requests.

In the case of FISC, this doesn't happen. There is nobody to argue against the orders. The proceedings are secret. Practically everything about the process is secret. The recipients of FISC-approved measures get gag orders which completely rob them of their ability to contest the government's power. This isn't judicial oversight, this is an Orwellian parody of a justice system.

This extends to Congress. Some members have expressed outrage. Other members have expressed incredulity at the outrage, since they had been briefed. But if a politician is briefed about a secret program, and they must keep it secret, can they really do anything about it? They can't object, hold hearings, or do the things Congress is expected to do when it discovers practices that cause concern. Secret government oversight is just as much of a joke as secret courts with secret justice. The wider political establishment, the media, or the citizenry have absolutely no way of gauging whether the government is behaving properly or legally.

It's Saved Lives / Terrorists! / Think of the Children!

I am thinking of the children. The children who will grow up in an authoritarian society where the government knows everything about them, and the only things they know of the government is what the government wants them to know.

I certainly would hope this program has foiled attacks / uncovered crime! The likely fantastical amount of money spent on it damn well better have produced some results.

The question is: could the same results have been had without spying on every resident indiscriminately? I suspect if the surveillance had been limited to individuals of prior interest, the results would have been similar if not the same. But hey, it's all secret, so we can't refute the claim! We have to trust the government's word on the efficacy of the program. No thank you.

There's no escaping a macabre calculus, and everyone has to make this determination on their own. I will absolutely give up security in order to keep and maintain liberty that swings the balance of power from the government to the individual, but I can only speak for myself.

The Age of Privacy has Passed, Get Over It

I don't believe this to be the case, even if privacy has been under an unprecedented assault from both government and the private sector. Regardless, if the government insists on powers to watch everything we do, we must insist on the right to make sure the government isn't abusing those powers. As of right now, the privacy is blatantly skewed.

Some of the most infuriating moments from the past few months were the outrage when it was revealed that the Department of Justice had been monitoring Associated Press reporters, and the angry congressmen worried that the government's metadata vacuuming included their phones. As a citizen of a free democratic society I feel entitled to such basic privacy rights as well. Surely we don't live in a world where only special elites are allowed to conduct their affairs in private without government snooping?

The Government Only Looks for Terrorists / There Are Strong Internal Processes To Protect You

So they say. But we don't know, because it's secret.

I Don't Trust the Government

It's again somewhat irrelevant in any event. The government has decided to limit itself out of the goodness of its heart. There's nothing to keep them from changing the rules. In twenty years, McCarthy junior can go back in the records and find anyone who was involved with the Tea Party movement, or Occupy movement, or a labor activist. Maybe they'll sell the data to Google to patch a budget deficit. Or, to put it more bluntly: Today they aren't coming for me. They might not be coming for me tomorrow either. But by the time they are coming for me, there won't be anyone left to stop them.

What About Tomorrow?

I'm fairly sure the motives behind this program are noble, and there probably are internal safeguards. However, unless we know what the limits of power are, and unless we can make sure they're being observed, there will be mission creep. Indeed, even in the best of circumstances, once the data exists, it's hard to not use it. Telling people that we have the data to find paedophiles, say, but we can't use it won't go over well. We also don't know with whom this data may be shared, and for what purposes.

Entschuldigung!

Oh, yeah. That. Because all the non-Americans on the planet are going to be thrilled about the implication that there are safeguards to keep Americans safe. That's going to be a major selling point for American companies overseas. "Give us all your data, we share it with the US Government so it can keep us safe."

I Have Nothing to Hide

Good for you. It's still none of the government's business. Or can I come walk into your house and rummage through your drawers and watch you go to the bathroom?

I do have things to hide. They're not necessarily illegal things. They may be medical issues. They may be embarrassing pictures. Maybe I'm a Brony and don't want my coworkers to know. Maybe I skipped out of Aikido practice to celebrate Donut day and don't want the rest of the Dojo to know. I want and I expect that unless I decide to make something public, or there's a clear public interest to find out, I can choose to keep my business private.

Let's be Pessimists

Instead of looking at all the good the government can do with surveillance powers, we should be looking at the worst case scenario. If the government was comprised of a bunch of corrupt religious fanatics, how much damage could they do with the powers and data we're allowing them to collect? That, to me, should be the baseline of the kinds of powers we should give the government.

Giving the government information about us that it didn't know before gives the government power. This power must be kept in check. Ultimately, privacy defines our personhood.

Let's get back to the children. A child is born. There's a record of it, and medical records. There may be DNA on file. The child goes to school, which may monitor and censor all Internet activity, and keep tabs of the students via RFID tags. College, more of the same. Workplace, more of the same. Stores track everything they buy, everywhere they go. Almost any urban place is covered by CCTV, some subset of which features facial recognition. Car license plates are automatically read and movements correlated. Every movement of the person is logged via cell phone location. This is already reality. The issue here is how much of this information the government, or any other single entity, should have access to, and how we can make sure that this kind of power isn't abused. The issue is how we make sure that we the people know what those who are watching us are doing. Right now we're being told that we can't know any of these things, because of national security.