Trying to save a nickel, you swipe your frequent-buyer card at the gas pump, buying fuel for your husband’s car. Turns out it’s a costly move. The convenience-store chain sells information on you and your purchases to your insurance carrier. The insurance company raises your rates because their algorithms say you’re driving more than you told them you would. Nobody tells you about it, let alone asks you about it.
Outrageous? You bet. These corporations have the power to do exactly what is described here, and that means they have power over your life, granted by you only in the most narrow legal way. Rest assured, though, that people still more powerful have access to that same information—and to much more—and that their greed for the information is insatiable. Those people would be the federal government.
These facts are known to the American public because of Edward Snowden. You may think Snowden is a hero or you may think he is a traitor—a false charge. You may think he is an intelligent, charming fellow or you may think he is a narcissistic twerp. You may think he is a political ideologue, either of the left or the right. But you know something about him because he is an important American—important because he disclosed things about our government most Americans find objectionable.
From the time Snowden, the National Security Administration contract employee who spilled the beans on massive NSA surveillance sweeps, first revealed some of the classified activity, we’ve seen attacks on him from all quarters. The most puzzling and most disappointing have been from two groups. The first is journalists, all of whom should have been proud to get their hands on the same information and publish it, and whose organizations publish the stuff every time Snowden drops another piece. The second is political liberals, who turn out to be more afraid of ragtag bands of mostly imaginary terrorists than of domestic assaults on their civil liberties.
Lately a lot of the attacks on Snowden have accused him of unnecessarily alarmist reactions to what he saw. After all, these adversaries say, this stuff is just “metadata;” and the NSA can’t use it without specific court authorization; and they’ve only used it 300 times; and only because of real communications with known or suspected terrorists. Besides, say the NSA defenders, if you have nothing to hide, you have nothing to fear. Moreover, the argument goes, corporations have all your information anyway; privacy is a myth nowadays. Finally, say NSA advocates, there’s nothing really new about this because under the “pen register” or “trap-and-trace” case law in effect for the last 30 years or so, these data are available to the government anyway. Let’s take those arguments one at a time:
1) It ain’t metadata—not by the ordinary definition of the coinage. It certainly isn’t “only” metadata. If you look up “data” and “information” in the dictionary, you’ll find they’re synonymous. According to government technogeeks, however, there’s a kind of hierarchy here. There’s metadata, “raw” data, data and, finally, information, which is the stuff used to make decisions. Wisdom doesn’t make the list. Metadata is defined as “data about data,” useless on its own. Metadata about your phone communications would be stuff like when it was collected, what formats it is stored in, how it’s encrypted or compressed, and so forth. Metadata would be found in database headers or in accompanying files. Files on whom you’ve called are data—useful information on their own.
2) Perhaps the only really significant change in the president’s recently announced “reforms” of the program is that now the NSA needs court authorization to query the database it denied having. But then, the Foreign Intelligence Surveillance Court, or FISC, apparently has never denied a request to search a database. But the NSA keeps this database. There is no “lockbox,” a term that has been used by Director of National Intelligence James Clapper, Sen. Dianne Feinstein (D-CA) of the Intelligence Committee and others. There’s no “lockbox,” because there is no lock. There’s just a big, open box.
3) The person who says this information—excuse me, metadata—has been used only 300 times, and only in cases of communication with known or suspected terrorists, is Clapper—the same Clapper who blatantly and criminally lied to Congress in saying the entire program didn’t exist and who somehow kept his job. But wait: if you’re interested only in these communications, then you need information only on the suspects’ calls and correspondence. Anything they send or receive, you’ll have, whether you bug anyone else or not. So the question becomes this: why bug everybody?
4) You have nothing to hide? Nothing sexual? Nothing financial? Nothing said or written indiscreetly in a moment of rage or despair? Nothing communicated to you in such a moment by a friend? What about your family? Nothing there at all that could be used on you?
5) In ways such as the one described in the first paragraph of this essay, corporations do have access to a lot of data about virtually everyone who uses the Internet. That fact raises two important questions. The first is: should they be able to capture, keep, use and sell this information legally? The answer has hardly been explored, but at least arguably it is hell, no. Simple but politically difficult legislation could fix the problem. The second question has to do with whether corporate interests should share such information with the government. The answer is yes: provided the government gets a warrant from a court, having shown cause why it is entitled to very specific bits of information, and not entire databases from which it can launch sweeping fishing expeditions.
Click here for a well-written description of the pen register and trap-and-trace technology and its legal history. In essence, a pen register is a record of people you called on the telephone, while a trap-and-trace device is a record of people who called you. The Supreme Court in 1979 ruled that because you allow a telephone company to keep these records, you have no reasonable expectation that they are private. Congress curtailed that openness a little with the Pen Register Statute. Congress can and should do a great deal more.
That is because changes in technology simply should not be regarded as changing, perforce, everyone’s legal rights without notice and without permission. It is possible to spy on everyone all the time, and that is what the NSA is doing. The sum of legal opinion so far is that, because it is possible and because people are scared, well, their rights have changed.
Whether rights have changed or not, the NSA has plenty of incentive for behavior to change. Behavior is at least beginning to change because people know they are being watched. Self-censorship is the surrender of freedom, and it is in these cases the direct result of the loss of privacy.
Snowden has become the target of a great many self-righteous patriots who love to call him a traitor. That’s a serious word, of course, but it has a very specific and, it turns out, narrowly defined legal meaning. Ever since Aaron Burr’s 1807 trial for treason, the standard has been a difficult one for a prosecutor to prove. To have committed treason, a person must have made war on the U.S. or given aid and comfort to its enemies. Snowden, apparently, stands accused of the latter. But the Constitution also grants to the Congress the sole authority to declare war, and Congress has not done so. It is, therefore, difficult to argue that the U.S. is legally at war, which suggests the question as to whether it is illegally at war. If there is no legal war, then there can be no enemy to whom Snowden might have offered aid. He cannot, therefore, be guilty of treason.
The reasoning might not fly with the Supreme Court, but what administration wants to take a can opener to those legal worms?
At all events, the entire discussion has to do with the patent and agonizing irony of surrendering rights and liberty in defense of rights and liberty. It is what Osama bin Laden wanted. It is what he got.