Why I'm Not Freaking Out
Privacy is power. The people with who hold the most power over us are those with whom we are most intimate. Love concedes power. Of course, institutions and corporations also have power over us: the bank, the landlord, the employer. The government. We concede personal power to these institutions only because we must. And we generally concede as little as possible. What the brouhaha over the government surveillance programs is all about is power.
The body of the U.S. Constitution is a fiat, a decree. It declares what powers the government has over the governed. That is, it declares what powers the governed – “We the people” – will concede to the federal government. The Bill of Rights, an afterthought, is what made the Constitution a contract, for the Amendments lay out what powers the government concedes to the governed. Although the Bill of Rights does not confer citizens' “right to privacy,” several Amendments do speak to specific privacy rights. The First and the Fourth are particularly germane in the current controversy: the First of course conferring upon the press a right to collect and publish information, and the Fourth:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Absolutists will argue that these privacy rights are inviolable. When President Obama said Friday, “You can shout Big Brother or program run amok, but if you actually look at the details, I think we’ve struck the right balance.... You can’t have 100 percent security and also have 100 percent privacy and zero inconvenience,” critics jumped all over him. While I do not agree we have struck the right balance, Obama – the Constitutional scholar – is correct about this: those rights enumerated in the Bill of Rights are fungible. The Constitution is a document in tension with itself; a citizen cannot have “100 percent privacy,” for instance, when s/he may be required under the Sixteenth Amendment to pay income tax, and as part of that process, be subject to a government audit of her private financial transactions. Similarly, a citizen usually cannot receive government benefits – Social Security, Medicare, food stamps, FDIC insurance, etc., – without revealing personal financial information. If the Fourth Amendment were absolute, many government functions – at every level of government – would come to a halt. States could not issue drivers' licenses (and police could not demand to see them at checkpoints), you could not obtain a passport (and Customs officials could not ask for your “papers, please” upon your return from another country), the municipality could not make you recycle some of your trash, yard waste and household hazmats. None of their damned business! I'm certain you can think of a number of instances in which you felt some government bureaucrat was being intrusive or forcing you to do something you did not think you should have to do – and not just the usual stuff, like making you remove your shoes at the airport.
Privacy is power. All of these intrusions – however vexing or routine – are incursions into your personal power. An authority figure, who may be rude and/or stupid, is requiring you to do something that you would refuse to do if you had the power to refuse. While it's true that we sometimes can decide not to cede power, that decision usually comes with a cost: a person might decide that patdowns are so humiliating, she refuses to subject herself to them; ergo, she won't fly, even if flying is otherwise the most convenient way for her to travel.
Privacy is power. It is worth remembering that we are a country formed, in part, by many people who were especially independent. “Rugged individualism” is an American value, personified by those younger sons, ne'er-do-wells and outcasts who populated the West, creating new identities and individual success stories dependent upon their ability to accommodate a lonesome way of living. For these individualists, privacy brought them power they had not enjoyed in the society from which they came; it freed them from past misdeeds or from a diminished “station in life” or from societal expectations they were not disposed to meet. Not every Western town was Deadwood, and not every cowboy a loner, but that cry for freeeedom comes out of the American experience. (This is not to suggest that Yankees can't be individualists, too, of course.) We are a country that revers our misfits – even if we usually wait until they have passed to lionize them.
It may be coincidental, but it is certainly fitting, that the person most responsible for publishing these revelations about the federal government's intrusion into personal privacy is a gay man – a member of a “group” that society has expended the most energy in sapping of personal liberty and personal power. Greenwald is “getting back at” an institution that has not been supportive of him and in fact continues to limit his life choices: he does not live in the United States because the U.S. does not recognize his partner, a Brazilian national, for immigration purposes. “'Brazil recognizes our relationship for immigration purposes, while the government of my supposedly “free,” liberty-loving country enacted a law explicitly barring such recognition,' says Greenwald, referring to the Defense of Marriage Act with the disdain he typically shows for policies he believes are eroding Americans' freedoms, Fred Bernstein wrote in Out.
Government intrusion is personal for Greenwald, as it is for all of us, to one extent or another. But I came to terms with this a long time ago, not so much because the government was depriving me of power but because other institutions did so to an even great extent. Years ago I realized how much strangers – or relative strangers – knew about me: the postman knew whom I corresponded with and what my interests were; the grocery clerk knew nearly everything I put in my mouth, the bank knew 95 percent of what I spent my money on and 100 percent of where I got that money, etc. And, oh yeah, the phone company knew whom I called and who called me. No matter how private a person I might like to be, these people – and others, like my doctor – could create a profile of me that was probably more accurate than one I would create myself. If some of these clerks, etc., were inattentive, there was a good chance a surveillance camera had caught me on tape and could reconstruct some of this stuff. (I have watched a few crime shows wherein part of the evidence against the murderer was a tape of him buying, you know, heavy-duty trashbags and a hatchet at the hardware store. Murderers aren't just the ultimate sociopaths; they are stupid sociopaths.)
Nowadays, of course, it isn't just phone companies and Internet providers who know my correspondents and my shopping habits. The companies where I shop, whether I buy products or not, know what I might be interested in buying (although it is beyond me why Amazon thinks I still might buy a shoddy egg topper when they know I already purchased the Cadillac [or Mercedes – I think it's German] of egg toppers. Last night I learned something awful – via the Internet – about a neighbor. My discovery was inadvertent but shocking to me. Although the information is public (and legal to disseminate), it is unlikely I would have learned it otherwise. I would rather not have known. I am not by nature a nosy neighbor.
In times past, most communities were full of nosy neighbors. The nosy neighbors are still around of course, but their power is much diminished, partly because of the changed patterns of modern society. Only a few generations ago, people tended to stay put. They remained in the communities where they grew up, and those communities “knew” them: it was difficult for a person to hide from his mistakes when all the neighbors knew not only his mistakes but his father's and grandfather's, too. Society – gossip – imposed the same kind of restrictions on privacy that the Internet and the NSA and others institutions do now. The community punished “misbehavior,” if not directly, then indirectly by ostracizing those who did not conform. In colonial New England, judges would enter the houses of parishioners unannounced on Sundays to make sure they were keeping the Sabbath. Those nosy neighbors, whether or not they were commissioned to interfere, formed a powerful and effective check on personal freedom and privacy. Now people are much more mobile, and that “community” has been digitized and expanded. The nature of Big Brother has changed, but he's always been around.
Today James Clapper has replaced the Church Lady. And frankly, Clapper is much less intrusive.
David Simon, who created the HBO series “The Wire” and was a crime reporter at the Baltimore Sun, is among the commentators who, like me, is not overly agitated by news from the Guardian. Simon wrote on his blog Friday,
Is it just me or does the entire news media — as well as all the agitators and self-righteous bloviators on both sides of the aisle — not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts? …
I know it’s big and scary that the government wants a data base of all phone calls. And it’s scary that they’re paying attention to the internet. And it’s scary that your cell phones have GPS installed. And it’s scary, too, that the little box that lets you go through the short toll lane on I-95 lets someone, somewhere know that you are on the move. Privacy is in decline around the world, largely because technology and big data have matured to the point where it is easy to create a net that monitors many daily interactions. Sometimes the data is valuable for commerce – witness those facebook ads for Italian shoes that my wife must endure – and sometimes for law enforcement and national security. But be honest, most of us are grudging participants in this dynamic. We want the cell phones. We like the internet. We don’t want to sit in the slow lane at the Harbor Tunnel toll plaza.
Read the whole post. Simon describes a law enforcement operation which took place in those halcyon days before the Patriot Act. After Baltimore police scooped up call records from numerous city pay phones, they wiretapped some of those phones – all with a good judge's seal of approval. Yep, you might have slipped out to a pay phone to call your mistress or your bookie so the call wouldn't be recorded on your home phone, only to have some Balto cops listening in on your phone sexies or your bet on the fourth race at Pimlico. And it was all legal. Plus, the cops caught their marks.
There is no doubt that existing technology enables the government not just to keep an eye on each of us but also to abuse us with its watching. Elspeth Reeve of the Atlantic describes an example of such abuse here. (It's worth noting that the behavior Reeve describes was not a government-sanctioned program; it was NSA employees behaving badly. People are people, and that will happen – which is little consolation to those whose privacy they violated.) Will some rogue elephant(s) abuse technology in the future? Well, sure. Richard Nixon and his gang of subversives were not anomalous. Neither were J. Edgar Hoover and the boys. People in power have every incentive to preserve that power, and some will abuse that power and will gladly violate the laws and the Constitution.
Greenwald and other journalists are right to be concerned. The free press is likely to be damaged, at least in the short run, by the NSA's sophisticated and far-reaching data surveillance techniques. Greenwald himself is already a target. Although he has written that he communicates through encrypted means, you can bet the NSA will be doing its best to crack the codes. And the agency is likely to succeed. The government's ability to monitor reporters' comings and goings is a great challenge to a free press, and therefore a challenge to democracy. Some reporters – like James Rosen of Fox “News” – will probably get caught in the government's web, either because of their carelessness (as in Rosen's case), or because surveillance technology was one step ahead of the reporters. But good journalists are smart, and they have very effective soapboxes, so there is every reason to think that truth will out. The purpose of the press is to probe, question and criticize the government. The Constitution itself – that document that enables the government – also privileges the press, the government's most persistent and effective critics.
As President Obama said Friday, “I welcome this debate and I think it's healthy for our democracy. I think it's a sign of maturity because probably five years ago, six years ago we might not have been having this debate.” I welcome the debate, too, and I'm glad Greenwald, et al., put it on the front burner again. But it is important to remember among all the hoo-hah, that a great many of the noisemakers, including Glenn Greenwald himself, are advocates or partisans whose stridency has a purpose other than to find that balance of which the President spoke. Whether it is George Will who this morning rushed to conflate the IRS and the NRA, or the ACLU calling the surveillance programs “beyond Orwellian,” the metaphorical hairpulling is not intended to be useful or informative. Both Will and the ACLU are professional contrarians, and their poses are the sources of their power. This debate, as much as any debate, is about power. Most of us have scant power. I am unwilling to cede part of what little power I have to scaremongers who would have me trembling in fear or bathed in paranoia, ever on the lookout for my personal FBI handler. This is a discussion about who we are as a nation. It is high time we stopped being a freaked-out nation.
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