In the face of government spying, “Oh, well” is not the correct response.
By Charles CW Cooke
‘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 difficult, incommodious, 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
Université 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?
Losing America by Peter Kirsakow
How much more will Americans take?
The “fundamental transformation” of America proceeds apace. The erosion of our freedoms and traditions, once incremental and barely perceptible, accelerates daily.
Armies of bureaucrats commanded by political ideologues remarkable mainly for their galactic incompetence intrude on ever more aspects of our lives — aspects both large and small. They tell us what light bulbs we’re allowed to use and how much water we may flush. They stick swabs in our mouths to collect our DNA and order us to buy health insurance we don’t want. They can seize our land if they think they know how to use it better, or stop us from using our land because a favored amphibian might live there too.
We obediently take off our belts and shoes, shuffle silently into plastic cubicles and stand meekly by as our toddlers and grandmothers are patted and groped by drones of the state. Rarely does anyone peep. Not long ago a tiny mayor wouldn’t dare tell eight New Yorkers — let alone 8 million — how much soda they’re allowed to drink. No more.
Now an administration that may have used the IRS to punish its opponents, disclose confidential information, and suppress dissent assures us we needn’t be concerned that the same IRS is on the cusp of having access to every single intimate detail of our medical lives. And it doesn’t stop even at medical information. We learn they may have been harvesting all of our phone records, our e-mail traffic, our video chats, our transaction histories — even though they have not a shred of evidence we’ve done the slightest thing wrong.
Trust us, they say, it's for your own good; sovereign imperative, essential for national security. This from a government that freely lets millions cross our borders illegally without bothering to find out even the slightest detail about them.
The decreasing number of Americans who protest are derided by bien pensants as bitter xenophobes who cling to guns and religion, despite the best efforts of those bien pensants to eradicate both. Popular culture cows ordinary people into silence or at most, political correctness, for fear of being labeled a kook, a racist, or paranoid. Journalists, instead of acting as watchdogs, collude to withhold information and promote partisan agendas.
Increasingly, American policies seem to be shaped less by the consent of the governed than by the needs and inertia of the leviathan state. Tocqueville observed that “the species of oppression by which democratic nations is menaced” produces a neutered populace where rugged individualism succumbs invariably to the dictates of the state. And even some conservatives rationalize that it’s all for the public good; move along, nothing to see here.
So dispirited citizens are ordered to provide abortifacients to their employees and must disclose the content of their prayers to a government that seems to hold them in contempt for believing in something beyond a benevolent state. Government officials, on the other hand, needn’t deign tell us what they’re up to and why. They can send you into harm’s way and needn’t explain why they didn’t bother to rescue you.
Free people never trust their government with power, regardless of who’s in power. Free people instinctively reject the idea that just because something’s legal, it’s a good idea for the government to do it. And while free people are willing to make considered, wise tradeoffs for security, they believe that freedom isn’t risk-free.
What else are we willing to forfeit because the encroachment is, or may be, lawful and supported by the elites?
Losing America by Peter Kirsakow
How much more will Americans take?
The “fundamental transformation” of America proceeds apace. The erosion of our freedoms and traditions, once incremental and barely perceptible, accelerates daily.
Armies of bureaucrats commanded by political ideologues remarkable mainly for their galactic incompetence intrude on ever more aspects of our lives — aspects both large and small. They tell us what light bulbs we’re allowed to use and how much water we may flush. They stick swabs in our mouths to collect our DNA and order us to buy health insurance we don’t want. They can seize our land if they think they know how to use it better, or stop us from using our land because a favored amphibian might live there too.
We obediently take off our belts and shoes, shuffle silently into plastic cubicles and stand meekly by as our toddlers and grandmothers are patted and groped by drones of the state. Rarely does anyone peep. Not long ago a tiny mayor wouldn’t dare tell eight New Yorkers — let alone 8 million — how much soda they’re allowed to drink. No more.
Now an administration that may have used the IRS to punish its opponents, disclose confidential information, and suppress dissent assures us we needn’t be concerned that the same IRS is on the cusp of having access to every single intimate detail of our medical lives. And it doesn’t stop even at medical information. We learn they may have been harvesting all of our phone records, our e-mail traffic, our video chats, our transaction histories — even though they have not a shred of evidence we’ve done the slightest thing wrong.
Trust us, they say, it's for your own good; sovereign imperative, essential for national security. This from a government that freely lets millions cross our borders illegally without bothering to find out even the slightest detail about them.
The decreasing number of Americans who protest are derided by bien pensants as bitter xenophobes who cling to guns and religion, despite the best efforts of those bien pensants to eradicate both. Popular culture cows ordinary people into silence or at most, political correctness, for fear of being labeled a kook, a racist, or paranoid. Journalists, instead of acting as watchdogs, collude to withhold information and promote partisan agendas.
Increasingly, American policies seem to be shaped less by the consent of the governed than by the needs and inertia of the leviathan state. Tocqueville observed that “the species of oppression by which democratic nations is menaced” produces a neutered populace where rugged individualism succumbs invariably to the dictates of the state. And even some conservatives rationalize that it’s all for the public good; move along, nothing to see here.
So dispirited citizens are ordered to provide abortifacients to their employees and must disclose the content of their prayers to a government that seems to hold them in contempt for believing in something beyond a benevolent state. Government officials, on the other hand, needn’t deign tell us what they’re up to and why. They can send you into harm’s way and needn’t explain why they didn’t bother to rescue you.
Free people never trust their government with power, regardless of who’s in power. Free people instinctively reject the idea that just because something’s legal, it’s a good idea for the government to do it. And while free people are willing to make considered, wise tradeoffs for security, they believe that freedom isn’t risk-free.
What else are we willing to forfeit because the encroachment is, or may be, lawful and supported by the elites?
Related reading:
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