Privacy

“The world is changed. I feel it in the water. I feel it in the earth. I smell it in the air. Much that once was, is lost…” – JRR Tolkien

When I was a boy, I routinely disappeared.

There were no iPhones or Blackberrys, no laptops or tablets. School let out at 3:15, I wasn’t expected home until 6:00, and nobody much bothered about where I was in between. My mother might have had some idea of where I was, but it was vague – hanging around with friends, maybe playing a sport. As long as I showed up for dinner, she wasn’t worried. For a few hours, I was unprogrammed and off the grid, but in a known community.

Actually, at that time, there wasn’t a grid – at least not the sort of seamless web of data availability that envelops us today. AC Nielsen tried to guess how many kids were watching afternoon TV, but nobody had any means of verifying exactly who was doing what. If a new kid moved into town, his past was whatever he told us it was – there were no Facebook records that trumpeted his progress through life, so he was really new, or seemed so to us.

Within the context of our communities, we had lots of personal space. There was no way to remain in constant contact with our parents or others, other than by being with them. And although we knew from our elders, books and TV that there was a great big world beyond our neighborhoods, we had few opportunities to interact with it. Our families, friends, rivals and neighbors were nearly all the world we knew.

Now, children and grownups alike constantly interact with many others in virtual space. And children’s time is measured and controlled as never before. Much is gained, but something is lost. Free time is a fading concept, and neighbors matter less than connectivity. All of that free time and comparative solitude fostered an independent frame of mind.

That said, we love our new gadgets. There is something enchanting, and enchanted, about our ability to connect with anybody we know, find an answer to nearly any question and see whatever we want at the touch of a finger. (And, speaking of Tolkien’s masterpiece, I can’t be the only reader who sees the Web as the perfect realization of the all-seeing palantir from which Saruman, and lesser creatures, could not tear their eyes). We cherish the powers that our communications devices confer on us, but their sudden appearance as virtual appendages has also limited our solitude and privacy in ways that must give us pause.

We are tethered to the virtual world – and to other people, who may be far away – by our devices. We connect with them when we first awaken, just before going to sleep and a thousand times in between. And not only are we watching the rest of the world, it is watching us. Our every keystroke will live forever in some data farm, and advertisers will speak to us as if personally, based on the websites we have visited and the people with whom we are in electronic touch. We are tracked relentlessly. Where once Wallace Stevens wrote:

“And whence they came and whither they shall go
“The dew upon their feet shall manifest.”

Nowadays we are tracked, instead, by our electronic footprints, and there is much less dew on our feet.

We are also photographed. When radical Islamists attacked the crowd at the Boston Marathon, few were surprised that there were many, many photographs and videos of the sudden carnage; cameras are everywhere, always on. Google Earth has photographed the whole planet from the sky; more perniciously, local governments are ordering drones to watch us on a real-time basis. The zone of physical privacy is shrinking rapidly.

We can still go off the grid, of course. We can go hiking in a place that has no connectivity or participate in an activity – like sport – that commands our full attention and briefly transports us wholly back to the reality of here and now. But the moment the game or hike is over, we will all surely reconnect to our devices.

Our loss of informational privacy is particularly troublesome when we consider communications for which we still have an expectation of, or a need for, privacy. We may think of email as the electronic version of a handwritten letter, but it has become ever clearer that the government, and perhaps others, have the ability and claim the right to troll theoretically private emails for information on a scale that would have been unthinkable with old-fashioned pens and paper.

There is no going back to the world of my childhood: by our actions we have collectively decided that the advantages of a connected world greatly outweigh its disadvantages. Rightly so – the Web satisfies many immediate needs and interests, and creates enormous wealth (and not just for a few entrepreneurs) by lowering the costs of information to all, thereby enabling previously unimaginable efficiencies of all sorts. (Indeed, personal connectivity is now considered to be such a basic necessity that our government has been “encouraging” telecom companies to provide subsidized “Obamaphones” to the poor. Either we can’t live without them, or that program was just another way to buy votes; you decide).

In addition to the practical benefits of wireless telephony and easy access to nearly limitless information, many people take comfort from finding virtual communities of the like-minded online. They can explore their own thoughts by plumbing those of others who share their interests, almost wholly undisturbed by dissenters. Those who wish to read only left wing commentary, or right wing commentary, or to catch up on their favorite team, shop in their favorite stores, play games or watch porn, will find what they are looking for online. What they will almost certainly not find is a community of neighbors who collectively have a balance of ages, circumstances and viewpoints.

The Supreme Court famously “discovered” a Right to Privacy in the penumbras and emanations of the Bill of Rights; but it is now clearer than ever that a lot of our actual privacy has been a casualty of the information age – some of it voluntarily, some of it not.

Some of our privacy, we surrender willingly. Recently, the son of my business partner keenly observed that we would be unwilling to allow cell phone tracking but for the fact that the apps that demand that we do so are so darned convenient. After all, if you want to know where the nearest Italian restaurant is, or where to find your missing phone, you need to allow your devices’ locations to be tracked. And we can’t very well object to having cameras ever-present in the public square if we wish to identify mass murderers.

Ironically, the government that declared a Right to Privacy is by far the greatest threat to what remains of our privacy. After all, it would be hard to argue that we do not have the right to choose to trade some privacy for convenience – for example, by enabling site-based apps; but the government does not work on the basis of individual consent, and it alone has the information, the power and the motivation to bend us to its wishes.

The government – through its awesome police and military powers, its ability to compel private financial and telecommunications companies to provide it with whatever information it demands, and through the detailed personal information it acquires through the IRS (including health care data, as a result of Obamacare), is in a position to reveal our most private secrets or use data improperly; and it does so.

Does not the current IRS scandal, in which, during an election year, right-leaning nonprofits and donors were targeted for harassment by the government, and private information about them divulged to groups that were friendlier to the government’s purposes, frighten you? It frightens me. Private companies can be brought to heel through the market (we can by choice use only those services that do not read our email or track us, or turn off our personal devices), or by litigation, but quis custodiet ipsos custodes? Nobody, if not we ourselves.

All too soon, everything that we might wish to hold private could be knowable to all online – without any exercise of choice on our parts. And once everything that matters most to us (love, money, politics, religious beliefs, charity, ethnicity, health concerns, personal tastes, you name it) can be made public, Big Brother will be able to exert even more control over us all than he already does.

We need to protect our privacy in those matters – and communications – that are most truly personal, and establish clear rules about the extremely limited circumstances in which those walls can be breached by our government or others, with severe penalties for violations. Otherwise, our individual freedom of thought and action will be limited by fear of retribution for deviations from others’ norms. Taking risks, challenging the status quo, learning and personal growth require the personal space provided by privacy, and the freedom that enables us to try something different. We need to preserve some space for ourselves.

Modern information technology is one of man’s greatest accomplishments; but the very ease with which information is now traded will be used to hem us in if we allow it to happen.

I understand the unease, but not the righteous indignation about the “revelations” this week (6/7/13) in The Guardian and elsewhere that our government has been involved in massive data mining of domestic communications through telephone companies and the Internet. We knew that already. Hell, even The New York Times had to know it, though they pretend otherwise.

It has been clear ever since the Patriot Act was passed that our government had motive, the means and the intent to troll through all kinds of communications for information about would-be terrorists. There had been plenty of public hints about electronic snooping; now it’s just a little more in-our-faces, so we all have to acknowledge the attendant issues relating to our civil liberties. Even the Times. 

Our government has one legitimate, indeed paramount, reason for such snooping, and many frightfully illegitimate possible ones. Though the President does all he can to divert attention from the uncomfortable fact that radical Islamists would like to set Manhattan, or any other symbol of American exuberance, afire, we know it to be true. We don’t like to think of ourselves as the constant targets of madmen; but what we like doesn’t really make much of a difference to those who would kill us if they could. If they were to get their hands on a nuke or some sarin gas, they would see these weapons as their tickets to paradise, so somebody had better be making darn sure that they don’t manage to do so and sneak into Times Square or Grand Central Station. We need fierce guardians in the military, and spies throughout the world, or our illusions of personal security will be shattered again, as they were on 9/11 and at the Boston Marathon, but perhaps on a much grander scale this time.

And if, God forbid, somebody does set off a nuke in an American city, our precious civil liberties would all disappear in an instant, and probably for the rest of our lives, so our best path is to surrender just enough of our privacy to make such an outcome as unlikely as is possible in a free society, while drawing extremely clear lines about the purposes to which information gleaned for this purpose can be put.

As far as I’m concerned, if the government trolls through every email ever written and somehow learns enough to stop the mass murder of my fellow citizens – but uses the information for no other purpose – I’m completely fine with that. If it uses data-mined information to lay a finger on citizens for any other purpose, we’re in big trouble, though, because nobody will dare to communicate by phone or via the Internet on personally sensitive matters or politically controversial ideas.

We need to preserve the privacy that protects freedom of speech in all matters except the planning of mass murder. Like shouting Fire in crowded theater, planning terror can not be a legally protected activity. Conversely, if we are sure that data-mined information will not be misused, having our electronic and telephonic communications trolled for terrorist activity will not be a real constraint on our personal freedoms.

The Obama Administration is essentially taking the same position on data mining that was taken by the George W. Bush Administration: trust me. Searches are being approved by the courts authorized by the Foreign Intelligence Surveillance Act (FISA); please ask no further questions.

In a way, that makes sense. We don’t really want the bad guys to know exactly how and when our government is listening to them, reading their email or monitoring their payments. The President’s trust me position isn’t good enough as regards the preservation of our liberties, though, because it leaves the door open to abuse of the furtively gathered information. So the question is: how are security and privacy to be balanced in a way that preserves what’s most important about both?

At present, our country is evenly divided along political lines, and each side distrusts the other. When George W. Bush was President, that was reason enough for the house organs of the left, like The New York Times, The Washington Post, MSNBC and CBS, and for candidate Obama to spew endless vitriol about alleged infringements of our civil liberties, convincing many that the dark night of fascism was descending; now that President Obama is in charge of the same security apparatus, these phony (!) civil libertarians have spent five years sleeping through revelations that our government’s information-seeking behavior has remained precisely the same.

Once in office, on matters of domestic security and threats of terrorism President Obama adopted  President Bush’s policies; given the terrorist threat, this was a laudable and responsible course of action. Notwithstanding President Obama’s previous (im)moral preening about the Patriot Act, he signed its reauthorization and has fully exercised the powers it granted to him. What he did not do was come clean to the American people about why he needs those powers, or apologize for his past bombast.

Sadly, President Obama has consistently behaved in a manner that might as well have been designed to exacerbate distrust of the motives and modus operandi of the Federal government. From the outset, he has been relentlessly partisan – denigrating the motives of any who disagree with his various policies, “joking” about siccing the IRS on opponents, and either tolerating, or positively encouraging (depending on your perspective) the Chicago-style politics of relentless partisanship and score-settling by his subordinates. It seems that nobody ever explained to this President that he is responsible for, and to, all of us.

President George W. Bush had his flaws, but he respected the dignity of his office, never using the power of the state for partisan purposes. This contrast makes the horrid treatment of President Bush by the progressive establishment’s press all the more ironic, when compared with the obsequious treatment that President Obama has received from the same crowd. They now pretend to be shocked, shocked that there is (still) snooping going on in this establishment.

Further, we know that under President Obama many government employees, particularly the stalwarts of his administration, are willing to misuse what should be protected information for either institutional or partisan reasons. The IRS scandal has shown that government employees use theoretically protected information to try to tamp down those who hold uncongenial political perspectives: they targeted tea party organizations and conservative donors, and leaked information about them to “friendly” groups, on an organized basis, for years. And such violations of trust were not unique to the bureaucracy: their masters engaged in smear tactics based on either nothing at all, or illegal tipoffs of private information. When Austan Goolsbee announced during the campaign that the Koch brothers don’t pay taxes, and Senator Reid said that Governor Romney had improperly evaded taxes, how did they know?

So clearly, our fear that, once private information has been gathered for the essential purpose of protecting us, it will be used for less essential, or partisan, purposes is well grounded. And even if the information is not leaked for some nefarious purpose, it may be used in a manner wholly inconsistent with the original purpose of the Patriot Act, but one that some future official finds convenient. The precedent for this kind of institutionally-driven mission growth of a draconian law is the RICO statute. It was written in ways that limit the rights of criminal defendants and justified as a necessary tool to go after the Mafia, but now is routinely being used to bludgeon “ordinary” criminal defendants into plea bargains. We cannot simply trust this President – or the next one, whomever that may be – to behave properly. There must be stronger safeguards.

This Administration – and the hypocritically partisan “mainstream” press – have created an atmosphere of mutual distrust, with the predictable result that, whoever is in power, half the country will believe – with some justification – that information being gathered by the Feds will probably be used improperly. By justifying the distrust of the citizenry, they may well have made it difficult to create and sustain a political consensus in support of vital policies that have been implemented by the Bush and Obama Administrations, and that have prevented numerous planned acts of terror. If so, a future terrorist attack may have the partisanship and misbehavior of this Administration as a proximate cause.

Our government needs information to protect us against acts of terrorism, and we need stronger safeguards against the misuse of the otherwise private information that is gathered to prevent terrorism. The Patriot Act should be amended to include long imprisonments for the use of information gathered under the act for any purpose other than preventing attacks on the US, and permanent inspectors general to police the use of such information. Confidence in the integrity of the system must be restored if we are to defend both ourselves and our liberties.

 

Privacy – 2 (originally posted 10/25/13)

Edward Snowden, who seems to be both a traitor and fundamentally right about the threat to American civil liberties posed by government snooping, tells us that our government has been sifting through everybody’s phone records. Our government used to deny that, but now it doesn’t.

The government tracks our money obsessively. And now they know who we call, with what frequency, and what our travel patterns are. They have our social network connections and our email, too. Somebody, deep within the bowels of our government, could paint a detailed, individualized picture of you and me, and may be doing so now if he finds us interesting for whatever reason, good or ill.

Do I have confidence that most members of Congress even know what surveillance of American citizens is allowed under current law? What should be allowed? What is actually done, and how it fits with the law and FISA Court rulings? Absolutely not.

After all, when it emerged that James Clapper, the Director of National Intelligence, had responded to a direct question on this topic from Senator Wyden with testimony that was a flat out lie, the Administration and Congress allowed him to explain away his perjury as the “least dishonest answer” that he had felt comfortable giving. How is that ok? Most members of Congress seem to be taking the position: don’t know, don’t want to know. Would rather talk about something else.

Perhaps more to the point: do we believe that the NSA actually follows the directions of the FISA courts? Probably sorta, kinda, most of the time. But not when they really want to do otherwise. We know that they blow through FISA restrictions; let’s go to the tape: http://www.cnn.com/2013/09/10/us/fisa-court-documents/. Consequences of their presumably criminal misbehavior: none whatsoever.

I don’t actually think that the Obama Administration is a big fan of the whole idea of personal privacy. Have they gathered phone and email data on one and all? Yes. Have they also given the IRS (possessor of virtually all of our financial secrets) the right to enforce Obamacare’s innumerable edicts while encouraging, or at least tolerating, IRS abuses of private information for (their) political purposes? You bet. Have they shown much concern about the privacy of the medical and tax-related income information flowing through the unsecure Obamacare databases? No.

Information is power, and they are very fond of power.

In the above post, I wrote that I was ok with governmental snooping on American citizens for the sole purpose of preventing terrorist attacks, as long as there were adequate safeguards against, and huge penalties for, the misuse of such information. I still feel that way, but as far as I can see, the safeguards are inadequate and the penalties nonexistent.

If we do not severely punish those who, like James Clapper, invade our privacy and lie about it to Congress, or who, like the miscreants at the IRS, abuse their access to personal information for political purposes, are we not inviting further abuses?

We will lose our personal privacy – and along with it much of our freedom to dissent – if we do not bestir ourselves to define the limits of allowable governmental surveillance, and the uses to which information so gathered can be put.

After the Constitutional Convention, Ben Franklin famously answered a question about the form of our new government as “A republic, if you can keep it”. I hope we aren’t giving up on that.

 

 

Leave a reply

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>