This article first appeared in the St. Louis Beacon: I was not particularly shocked by Edward Snowden’s revelations that the National Security Agency has been snooping around in our supposedly private communications. Like Thoreau, “I heartily accept the motto, that government is best which governs least,” but I found news of widespread surveillance unsurprising because I’d long assumed it was going on.
My cell phone bill, for instance, details my monthly usage of the device. The provider keeps records on which numbers I call, how long I talk, what hours of the day and what days of the week I use it. The company knows how many texts I’ve sent and received and how many bytes of information have been transmitted through my receiver. So you thought all this was private?
Similarly, every email I send is processed through an unseen — and to me, unknown — nexus of servers before arriving in my correspondent’s inbox. Any expectation of genuine privacy I may harbor regarding these electronic transmissions is on its face unreasonable.
In fact, I’ve always viewed email as the modern equivalent of postcards — you send them with the full knowledge that a bored postman might read your message before delivering it. If you’re worried about privacy, you might as well communicate by smoke signal…
Of course, encryption schemes have been developed to better protect information. Unfortunately, those who encrypt can also decrypt, so the security they provide is less than absolute.
Though communication is always vulnerable to those who transmit it, there is an admittedly sinister element to governmental surveillance. The Fourth Amendment guarantee against unreasonable searches and seizures was not written to restrain the caprice of nosy neighbors but to limit the always-formidable power of government.
In 1914, the Supreme Court ruled in Weeks v. the United States that evidence obtained illegally by federal agents could not be introduced at trial. This principle is known as “the Exclusionary Rule.”
Four years later, the court expanded the ruling by making evidence later discovered as a result of an originally flawed search or interrogation likewise inadmissible, thus creating the “Fruit of the Poisoned Tree Doctrine.”
The hallmark 1961 decision, Mapp v. Ohio, made these provisions binding on state prosecutions. A citizen’s privacy was henceforth protected against overly aggressive police tactics in both federal and state courts.
Interestingly, these rules only apply to the government. If a prying landlord, for instance, illegally enters your apartment with his passkey and finds your stash of dope, that evidence actually would be admissible — unless he acted on behalf of the police, in which case he is deemed to be their agent and the evidence would be excluded.
Reconciling the demand for privacy with the need for security is a balancing act worthy of a Wallenda. In 1978, Congress passed the Foreign Intelligence Surveillance Act. The bill attempts to curtail illegal domestic surveillance of American citizens while still allowing counter-espionage agents the latitude to wage the Cold War. The new law created a secret federal court to review search and surveillance warrant applications from intelligence forces.
According to data published in the Sacramento Bee, The FISA Court approved about 28,800 warrant requests in the 30 years from 1979-2009. During the same period, the court modified and then approved another 400 applications. In 20 cases, the government withdrew its request before a decision was rendered. Numbers like those suggest one of two possible conclusions: either our intelligence services are incredibly accurate when identifying spies, or FISA is an awfully trusting watchdog.
In either case, the clandestine court has long outlasted the Cold War it was designed to fight, demonstrating again that once liberty is compromised, it tends to stay that way.
On the other hand, two successive — and ideologically opposed — administrations both defend what is essentially the same strategy. Any program that makes allies of Barack Obama and Dick Cheney cannot be lightly dismissed.
The present controversy revolves in large part around the collection of so-called metadata — everybody’s information is seized without regard for probable cause or even reasonable suspicion. Practices like these evoke images of Big Brother.
In fact, it was the routine application for renewal of a FISA warrant on a cell phone carrier that prompted Snowden’s leak to the press. But it was just such blanket surveillance that solved the Boston Marathon bombings. In that case, a department store’s security camera photographed everybody walking on a public street. After the crime, FBI agents reviewed the video and quickly identified the suspects, which prevented further horror.
Back when the internet was more an idea than a reality — before it took over the world — proponents hailed it as an emerging “information superhighway.” That metaphor may be an appropriate way to view all modern electronic communications. They provide a convenient route you’re free to travel — but do so with the expressed understanding that traffic cops are hidden along the way.
This is not to denigrate the legitimate concerns of civil libertarians. In simpler times, a popular TV game show was called “I’ve Got a Secret.” Were you to remake that program today, candor would demand that you change its title to the past tense.