This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
It’s common knowledge that governments, businesses, and criminals can (and do) take advantage of the unprecedented amounts of information about our daily lives that are easily available in the information age. The leading 2016 Republican presidential candidate, who’s already signaled he may not have the greatest respect for civil liberties and human rights, is advocating for the return of controversial mass surveillance efforts. He’s also slamming Apple for excising its right to challenge the FBI’s demands for access to an encrypted iPhone in a fight reflective of a larger debate about government access to secure communications. Meanwhile, the French parliament is considering legislation that would punish technology firms that don’t hand over encrypted data to the government upon request. And nearly three years after the Snowden revelations gave us a window into the scale of mass surveillance conducted by the US government, politicians and the media are still discussing security and privacy as a pure tradeoff, implying that more of one equals less of the other.
Amidst all of this, I recently found myself at a dinner sitting next to an executive from a company that develops technology allowing organizations to track and communicate with their employees or assets at nearly all times. We spoke about the benefits this kind of software could have for organizations as diverse as shipping firms and disaster-relief NGOs. When our conversation turned to government surveillance, he unfurled a pro-surveillance argument that I’d somehow assumed was long-resolved and buried.
He argued that “if you don’t have anything to hide, you shouldn’t have anything to worry about” from the type of near-constant surveillance that today’s technology can enable. Simple as that.
Perhaps I’ve been spending too much time with civil liberties advocates lately, but I almost choked on my drink upon hearing his words. This wasn’t an argument that there are times when targeted surveillance is necessary for legitimate military or law enforcement purposes that are well within the bounds of the Constitution. It wasn’t even that mass surveillance is sometimes needed but that it can and should be done in a tightly-regulated manner. This was an excuse for essentially blanket surveillance of everyone that I hadn’t heard in ages from anyone familiar with these issues.
So I find myself writing a piece that I didn’t think was necessary in 2016. Why should we, as Americans, worry about government surveillance on an unprecedented level?
Let’s start with free speech. Donald Trump, the likely Republican 2016 presidential nominee, is already proposing expanded libel laws that could make it easier for a government official (or other influential person) to intimidate political rivals, journalists, academics, activists, and anyone else those in power deem to be a threat. No matter how unlikely his proposal is to achieve success, it hints at the willingness of a front-running presidential candidate to reach for any tool at his disposal, including one that would damage what’s perhaps our most fundamental constitutional right, to silence dissent. It’s not remotely difficult to envision a President Trump who would try to use government resources to collect information on any law-abiding Americans he decides are worthy of intimidation, regardless of their rights.
A government’s abuse of surveillance to intimidate and discredit law-abiding citizens isn’t something that happens only in places like Russia. It’s happened time and again, even in democracies as strong as the United States. Within living memory in the US alone, one can recall Nixon’s enemies, Sen. Joseph McCarthy’s anti-communist witch hunts, J. Edgar Hoover’s FBI files on everyone who may have posed a threat to his power, COINTELPRO, and more specifically, that program’s use of surveillance to assist in attempt to ruin Martin Luther King Jr., the list goes on. There is simply no reason to think that such abuse will not occur again. So why should you care if you’re always being watched? Because your self-perceived innocence may not protect you from the kind of abuses we’ve seen repeatedly over the past century.
This is directly tied to the next reason everyone should be concerned about surveillance overreach in the digital age. This nation was founded, in part, out of a reaction to abuses by the British Crown against the privacy of its North American subjects. Preventing such abuse weighed so heavily on the minds of the Founders that privacy protections were enshrined in the Fourth Amendment to the Constitution, as well as most of the rest of the Bill of Rights. Lest anyone need a reminder, that amendment wasn’t crafted to empower the government to conduct searches and surveillance. It is an amendment meant to limit the government’s power to do those things. The Fourth Amendment was, in part, inspired by writs of assistance (a type of general warrant), which granted royal officials near unlimited, dragnet-like power to search and seize the property of subjects in the colonies. This unlimited ability to rifle through people’s homes and thoughts (by way of access to their private papers) was considered a grave enough abuse, that Founding Father John Adams declared the colonists’ legal resistance to these searches was the birth of the “child Independence.”
Privacy was a crucial element of two of the fundamental rights this nation was built on: free speech and association. Consider the following words of Mike Price discussing the Stamp Act, the piece of legislation that relied in part upon writs of assistance to ensure compliance:
Adams was also well aware of the Wilkes affair and the potential for unchecked powers of search and seizure to stifle speech as well as commerce. He was a vocal critic of the Stamp Act of 1765, which imposed a tax on all printed materials, including legal documents, magazines, and newspapers, requiring them to carry an official stamp. Adams publicly denounced the Stamp Act as designed to “strip us in a great measure of the means of knowledge, by loading the press, the colleges, and even an almanac and a newspaper, with restraints and duties,” enforced through writs of assistance and courts of admiralty that operated without a jury.
But even if the potential for a government to abuse the near-ubiquitous surveillance tools that modern life provides — everything from smartphones to Amazon’s Echo to Samsung TVs to anything Nest makes — somehow ceased to exist, there still are reasons that privacy must be protected. Humans need space to be unguarded, spaces where they know no one is watching or listening (or where they can carefully choose who is doing so). This space may be needed to further legitimate but sensitive professional endeavors or hold deeply personal conversations, to reveal and grapple with one’s weaknesses, fears, and hopes in a place free from fear of judgment or shame or simply to blow off steam. We are fast coming upon an era where nearly all of these actions are observable by someone else, severely hampering the privacy that enables them.
A decade ago, cryptographer Bruce Schneier expressed this notion wonderfully when responding to the same argument I was confronted with at that recent dinner:
We do nothing wrong when we make love or go to the bathroom. We are not deliberately hiding anything when we seek out private places for reflection or conversation. We keep private journals, sing in the privacy of the shower, and write letters to secret lovers and then burn them. Privacy is a basic human need. …
For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.
And finally, the privacy afforded by knowledge that no one is watching, or can be watching, is crucial for growth, both personal and societal. Private spaces allow for the curious, the neglected, or the oppressed to push the rules, break taboos, and even break the law in ways that can one day lead to unjust or inappropriate laws being struck down. How important has privacy been to the civil rights movement, women’s rights, those advocating for LGBTQ rights, or decriminalizing marijuana? A space that is free from prying eyes helps us — both as individuals and groups — develop cohesive ideas, advocate for change, form new opinions, and decide the present and the future that we want to fight for.
None of these are new arguments. I was simply naïve enough to think that we’d moved past having to point all of them out every time we discuss the latest surveillance issue in the news. Or that at least, we wouldn’t have to revisit them so soon after seemingly acknowledging them as common sense.