Tuesday, June 11, 2013

Liberty in the Tentacular State


In the face of government spying, “Oh, well” is not the correct response. 


Until August 1914,” A. J. P. Taylor wrote, heartbreakingly, at the beginning of English History, 1914–45,
a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave his country for ever without a passport or any sort of official permission. . . .  All this was changed by the impact of the Great War.
Thus did Liberal England begin to suffer its quick and “strange death.”

Here in America, eyebrows are being raised. In the middle of Queens this weekend, I heard a moderate-seeming father of three tell his friend that he generally had “no time for the conspiracy people.” “But,” he continued, shrugging his shoulders, “you look now and think, ‘Well, yeah.’ Those guys were always going on about this or that. Maybe I should have listened more closely?” What strange bedfellows the last two months of scandal and revelation have made. And what a disgrace that it has taken so long.

Nonetheless, who really needs “the conspiracy people” when so many of our institutions are tasked with spying on us in plain sight? “No one likes to see a government folder with his name on it,” wrote Stephen King in Firestarter. If this is true, we tolerate it manfully. Every year, as a condition of my being alive, I furnish the IRS with a huge range of personal information. As of next year, I will be required to alert them of my health-care arrangements, too. Who among us was honestly surprised when the IRS used the vast powers with which it has been endowed against the people who object to its existence? Nowadays, the government openly keeps files on each and every one of us. Lord knows what happens in secret.

In the country that I left behind, it is worse. The streets of England are paved with cameras that film day and night without rest or interruption. On the roads, “average speed check” equipment tracks drivers along their way, recording where they have been and averaging out the time it took for them to get to each checkpoint in order to ensure that they are not traveling too fast. Number-plate-recognition systems are commonplace, and intended to become ubiquitous. At 3.4 million strong already, the National DNA Database grows like Topsy. No distinction is made between innocent and guilty; everyone falls into the net.
Because the British government owns and runs almost all the hospitals and employs the vast majority of the medical staff, if you wish to access the care for which you are forced at gunpoint to pay, you must hand your most sensitive information over to a bureaucrat. This process is not only accepted in the country of Locke, Mill, and Orwell; it is wholeheartedly celebrated, as if it were the national religion.

So complete has been the destruction of liberty’s cradle that, a few years back, the ruling Labour party felt comfortable suggesting that all British automobiles be mandated to carry state-owned GPS equipment that would track each car’s movements and automatically calculate one’s road taxes. With a few admirable exceptions, the ensuing debate was over whether this was practically feasible. One hundred years ago, the very suggestion would have been treated as downright treasonous. Now, it is blithely ignored. If this can happen there, it can happen here.

Indeed, it already is. America, which has proven better than most at resisting the ills that afflict so much of the world, is rapidly joining the international status quo. The FAA predicts that by the end of the decade, 30,000 drones will patrol the air, many equipped with high-definition cameras that can recognize a face from five miles away. Already, the Border Patrol “has been lending out the drones to federal, state, and local law-enforcement agencies with no oversight,” the watchdog group the Electronic Frontier Foundation reveals. About this insidious development, there has been little outcry. If you are concerned about the government’s collecting metadata, imagine what flying squads of law-enforcement vehicles will do.

Relative to what we’ve been accustomed to lo these five years, their messianic zeal is subdued, but the president’s chastened defenders are correct when they insist that the government saw fit to obtain a warrant before it ventured to collect user information from Verizon and other private companies. This, however, is a strictly technical defense. Legality does not equal morality, just as something’s being permissible does not render it wise. That the American state could do all manner of things in order to make us safer is not an irrefutable justification for its doing so.

Virtually everybody in America can recite Benjamin Franklin’s hyper-famous quotation about “liberty” and “safety” — and virtually everybody does. So allow me to join the ranks: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Sadly, this quote is now so often deployed that it has come effectively to demonstrate George Orwell’s perspicacious observation that familiar sayings “spread by imitation” are commonly recited without much thought. This is troubling, for Franklin’s words carry with them a difficultincommodious, but vital implication: that liberty is an imperative, and its price is discomfort, danger, and even, to borrow from Patrick Henry, death. Lest you wonder how serious Franklin was about abstractions, in the sentence before the famous line, he contended that “Massachusetts must suffer all the Hazards and Mischiefs of War, rather than admit the Alteration of their Charters and Laws by Parliament.”

In our frivolous age, we are comforted by politicians who assure us that we never need to make such difficult choices. Their promise is invariably of a “third way.” There is no such thing. Last week, the president lamented that Americans expect to “have 100 percent security and then also have 100 percent privacy and zero inconvenience.” Obama is correct to warn us that we cannot have it both ways, but it’s impossible to ignore that there are few politicians who have spent as much time as he trying to convince the country that we need never face a trade-off.

The adult truth, as ever, is that being free means accepting the negative consequences of being free. I daresay that if cameras were installed in every one of the Republic’s private bedrooms and monitored around the clock by well-meaning sentinels, then the rates of both domestic violence and spousal murder would decrease dramatically. But a free people must instinctively reject such measures as a profound threat to their liberty and, in doing so, accept the risks of unregulated home life. Alas, the story of the last century is the tale of a gradually diminishing tolerance for risk. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it,” wrote Thomas Jefferson. In almost all areas, our modern calculation is quite the opposite.

A popular rejoinder to those of us who agree with Jefferson’s contention — and who are willing to run with it to the point of genuine discomfort — is that we are neo-Luddites, heirs of William Blake who hark back to a lost Ruritanian age. Inherent in such accusations is the suggestion that the founding principles of the United States are not timeless and immutable, but instead the product of another era. From the beginning of the Republic, we have heard people insinuate this, urging that we give up on individual liberty because the domestic and foreign threats have become too great, or technology has grown so ubiquitous, or — worst of all — that the People could not stop the state even if wished to. On his cable-news show, which is conveniently protected by the First Amendment, Bill Maher took this to its logical conclusion last week, arguing that the Founding Fathers could never have imagined these threats, and asking pugnaciously whether the Fourth Amendment was now as obsolete as he considers the Second to be. Suffice it to say that to take this position is to accept that the American ideal of a limited government that exercises its powers judiciously and only with explicit permission is no longer viable.

One expects this stuff from the Left: It has been its hallmark since the Jacobins. But conservatives and libertarians should have no part of it. Earl Warren’s grave contention that “the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual” was not an unfalsifiable prediction, but a warning. To throw up one’s hands at this and say “Oh, well” is to embrace the tentacles of the state and, in the words of the poet Richard Brautigan, to welcome a country in which we are “all watched over by machines of loving grace.” I will not stand for that. Will you?

When I argue about this question with friends, they usually tell me that it is unreasonable for me to expect my liberty to remain intact in the electronic realm. I am afraid that this is an intolerable conceit. Whether they intend to or not, defenders of our surveillance state help weaken our expectation of privacy, and they blur the crucial line between the public and private spheres.

“Necessity is the plea for every infringement of human freedom,” said William Pitt the Younger. “It is the argument of tyrants; it is the creed of slaves.” If I ceased to be a “sensible, law-abiding Englishman” and elected to commit a crime — or, for that matter, if the authorities had reasonable cause to suspect that I had done so — I would be happy to concede that my privacy, after the relevant permissions were sought, would be abrogated.
As it stands, however, like the tens of millions of Verizon customers into whose private lives the state has intruded, I have committed no crime. Nor does the state have any reason to suspect that I will commit one. Here, our assumptions should be inverted: When I send an e-mail, I have no expectation that somebody in Virginia will be monitoring it; nor should I surmise that when I charge my dinner to my American Express card or make a call via AT&T, the federal government will know about it.

A majority might accept with alacrity that the FBI and local police forces will keep open files on those who have been arrested, but will they so readily accept the construction of exhaustive databases that are designed to give authorities a better idea of what they might one day have to look for? Will they acquiesce to the all-seeing entity that whistleblower Edward Snowden describes? “The NSA,” he says, “specifically targets the communications of everyone, it ingests them by default, it collects them in its system and it filters them and it analyses them and it measures them and it stores them for periods of time . . . ”

Fox News’s Kirsten Powers certainly seems to think that such widespread data mining is acceptable, asking critics on Twitter last week: “how r they supposed to know who to target before the data is mined to find suspicious activity? it has to be ‘blanket’ initially.”

This is an utterly terrifying suggestion, a principle that could be applied to almost anything in any place and at any time. Are we routinely to obtain warrants in order to search each and every house in a city so that we might know which house warrants even more thorough scrutiny? I rather think not. And yet if it is acceptable for the state to apply a single search-and-seize permission slip to hundreds of millions of people on the off chance that something might turn up, why not, say, to all the homes in Dearborn, Michigan?

When I entered into arrangements with American Express, Google, and AT&T, I took a calculated risk with my privacy. I took that risk with American Express, not with the federal government; with Google, not with President Obama; and with AT&T, not the national-security services. Are we to presume now that all private agreements implicitly involve the state? And if so, where is the limiting principle? If I am to expect that private information I keep on a server run by a private company will be routinely accessed by the government without my knowledge, then why would I not also expect that private belongings I keep in a storage unit run by a private company will be routinely accessed without my knowledge?
At what point did it become assumed in free countries that relationships between free citizens and free businesses were not sacrosanct? And if privacy is not expected, what explains the furious denials of participation from the likes of Google?

This distinction between privacy in the concrete and in the virtual worlds is silly in principle and even sillier in practice. As Justice Potter Stewart, writing in Katz v. United States, explained in 1967:
The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
That Constitution, I might remind naysayers, is still in force, and it is not dependent for its authority on the nature of the government over which it reigns. Those who voted for Barack Obama because they liked his civil-libertarian stump speech must be the most disappointed of all. But the great lesson of the last decade is that our vast bureaucracy makes it almost impossible to check abuses of liberty, and that such abuses have become the norm.

“Who are you?” Juliet asks from the balcony in William Shakespeare’s Romeo and Juliet. “Why do you hide in the darkness and listen to my private thoughts?” Romeo replies, wary of her reaction: “I don’t know how to tell you who I am by telling you a name.” Many Americans tend to tailor their reactions to news of privacy abuses according to the names of those responsible — the hypocrisy from both sides in the last week has been astonishing — and yet spying is now a bipartisan game, for Leviathan makes no genuine distinctions. Montague or Capulet, Republican or Democrat, the surveillance state is now a constant, apparently beyond even Congress’s control. Who cares in whose name it violates you?

The Fourth Amendment exists now for precisely the same reason that it existed in 1791: to ensure that, in the absence of extremely compelling situations, Americans are not subject to casual government scrutiny. Its authors understood that knowledge is power, and that, as there is no justification for the state to have too much power over you, there is also no justification for the state to have too much knowledge about you. If you don’t believe that metadata can afford its voyeurs too much information, then consider this study, conducted by MIT and Belgium’s Universit√© Catholique de Louvain, and written up in National Journal last week:
After analyzing 1.5 million cellphone users over the course of 15 months, the researchers found they could uniquely identify 95 percent of cellphone users based on just four data points — that is, just four instances of where they were and what hour of the day it was just four times in one year. With just two data points, they could identify more than half of the users. And the researchers suggested that the study may underestimate how easy it is.
Moreover, the relegation of the spying to supposedly harmless “metadata” is misleading. As my colleague Dan Foster points out:
Unlike the ordinary collection of phone records for law-enforcement purposes, the metadata the government is collecting from Verizon can easily be used to track the movements of users; it includes information on the cell-phone towers calls are routed through.
After 1914, wrote A. J. P. Taylor, finishing his thought:
The mass of the people became, for the first time, active citizens. Their lives were shaped by orders from above; they were required to serve the state instead of pursuing exclusively their own affairs. . . .  The state established a hold over its citizens which, though relaxed in peacetime, was never to be removed and which the Second World War was again to increase. The history of the English state and of the English people merged for the first time.
It is precisely this confluence that Americans must resist. The policeman and the postmaster of Taylor’s report knew intuitively that their role was to capture only that which needed capturing. Our policemen may now fly and our postmasters may communicate in binary, but that principle remains as important as ever. Are we really to concede that we must lose our right to it when we pick up the phone?

— Charles C. W. Cooke is a staff writer at National Review.

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