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Reed Hundt proposes democratic action in response to our government’s secret infrastructure for monitoring and controlling modern communications. “Citizens,” he writes, “should be encouraged to take action on behalf of their own privacy and security.”
He is right, but he overlooks the fact that democratic activism has historically been a casualty of—not a cure for—powerful government surveillance. Mass surveillance insulates governments from democratic pressures. Efforts to democratize surveillance must go hand in hand with widespread adoption of privacy-enhancing technologies, or this movement will face potentially insurmountable challenges.
Technology has evolved to enable comprehensive, mass surveillance. Meanwhile, intelligence officers reassure Americans that there is no evidence any data have been misused to the disadvantage of law-abiding citizens. There are two problems with such reassurances. The first is that they are wrong. Take LOVEINT: the NSA has admitted that in multiple cases agents illegally monitored whom their lovers were calling on the phone. We also know the NSA has profiled the sexual practices and pornography-viewing habits of people, including U.S. citizens, who the government believes hold radical political views, but who are not terrorists. And for all the abuses we know about now, over time we will likely learn more. (In 1975, for example, the Church Committee discovered abuses going back to the 1950s.) And even when they follow the letter of today’s permissive and outdated laws, officials can invade privacy without justification.
But the second, larger problem with reassurances that the government has not misused our data is that they miss the point. The issue is not whether we can trust the government with our data but how to design a system that constrains government authority assuming we can’t.
History tells us that we cannot trust the government with our data.
History demonstrates that we have good reason to operate under that assumption. For decades, our government was so worried about Communists that the FBI made lists of sympathizers—including socialists, homosexuals, labor rights activists, and other suspected subversives—to be rounded up in times of national unrest. We spied on peaceful advocates who favored racial equality, labor rights, and getting out of Vietnam. For example, in the turbulence of 1967, amid war protests and riots in Newark and Detroit, President Johnson ordered intelligence agencies to find out whether civil rights and anti-war activists were under foreign influence. The government targeted Dr. Martin Luther King, Jr., Muhammad Ali, New York Times D.C. Bureau Chief Tom Wicker, Washington Post humorist Art Buchwald, and up to 1,600 others for surveillance, presumably because they were opposed to the Vietnam War. With the information gleaned from this surveillance, the FBI attempted to discredit King by threatening to reveal his marital infidelity if he did not cease his activism.
Human Rights Watch, Wikileaks, the amorphous online group Anonymous, The Pirate Bay, and other edgy political organizations. These entities pose political or economic challenges to the status quo. Regardless of their agendas, their aggressive participation in molding public policy and the future economy reflects the basic purpose of democracy. Spying on them threatens to derail that participation, while lending support to governments that more blatantly surveil and oppress political activism.
Now that technology and economics have made comprehensive mass surveillance possible, we need new ways to protect society both as it is currently constituted and as it will evolve in the future. One way is to make mass surveillance difficult and expensive again. We can do this by building systems for widespread use of strong data encryption, anonymity, digital cash, decentralized information services, and yes, strong legal protections with robust public oversight. These efforts should refocus surveillance resources on targeting real threats, while both prohibiting and discouraging government from spying on political groups and interfering with democratic change.
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