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


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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.

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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?

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



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