I know What You’re Thinking

Hazen Dupre May/June 2015

In Steve Spielberg’s 2002 futurist Minority Report Tom Cruise plays a policeman in 2054 on the run. Though he’s trying to be incognito, the surveillance state has so much biometric data on its citizens that, as he rushes through a mall, the stores and billboards not only beckon him by name but also fine-tune their advertisements to address his immediate stress and anxiety.

Though Minority Report was science fiction, who hasn’t been creeped out by the first experience of browsing a Web site, only to later find ads related to that site pop up on your screen when you are looking at something else entirely? You think it’s just a coincidence that Gawker knows your obsession with Waterford Crystal or Beretta M9s?

In our technodigital society we are being watched, monitored, categorized, and parsed. When you surf the Web, you leave a trail that will remain long after only your teeth do. Your smartphone reveals where you’ve been, even if you turn it off while it’s in your pocket. When you walk down a city street or into a store, you’re likely being taped and uploaded to the cloud. Every online purchase remains etched in silicon. And if we can carry Google Earth on our phones (technology that 20 years ago was probably top secret), do you think that when hiking the Grand Canyon, or lolling on a beach in southern France, you can’t be seen by someone in Fort Meade?

If Uncle Sam isn’t watching you yet, he can when he wants to.

A Government of Wolves?

Or, maybe, he already is? In a 2013 book called A Government of Wolves: The Emerging American Police State—which was given a cover endorsement by “12-term U.S Congressman and former presidential candidate Ron Paul”—constitutional scholar John Whitehead paints a chilling portrait of post September 11 America.

“When you buy food at the supermarket,” he writes, “purchase a shirt online or through a toll-free number, these transactions are recorded by data collection and information companies. In this way, you are specifically targeted as a particular type of consumer by private corporations. And if that were not worrisome enough, government intelligence agencies routinely collect the records—billions of them—about what you have done and where you have lived your entire life: every house or apartment, all your telephone numbers, the cars you’ve owned, ad infinitum.”

According to Whitehead, when you use your phone, your ATM card, your GPS, all this information is being “fed to the U.S. government intelligence agencies.”

Freedom or Protection

Even if things are not as bad as Whitehead argues, or if they are even worse—many Americans shrug their shoulders: Well, if I am not doing anything wrong, why should I care?

That’s an understandable sentiment, but dangerously shortsighted. What happens if what’s deemed “wrong” changes? What happens if your religious practices become suspect? Or your ethnic background? Or your politics? The fact that what you might be doing is not deemed “wrong” now does not mean that in two, 10, or 20 years hence some judge on a bench, or politicians in office, or voters in voting booths might decide that, indeed, it is wrong and make it illegal or include it in your present profile?

“In the 1920s and 1930s,” wrote Joan Acocella, “Stefan Zweig was an immensely popular writer, a man who had to barricade himself in his house in Salzburg in order to avoid the fans lurking around his property in the hope of waylaying him. . . . By 1933 the Hitler Youth were burning his books; in 1935 Richard Strauss’s opera The Silent Woman was canceled after two performances because Zweig had written the libretto.” And before we boast that this is America, not Austria after the Anschluss, remember the fate of Japanese citizens in America during the war. Though their plight was nothing like the Jews’ in Europe, the internment of the Japanese in America should remind us why the principles of freedom and liberty always need to be protected.

Protected, yes. But, one may ask, at what cost?

Whitehead’s book is a polemic, and many Americans might not recognize the techno-fascist America that he says we’re living in. At the same time, even exaggerated arguments are exaggerated only because there’ s still enough truth there to exaggerate. And one thing we should all know by now is that privacy in the twenty-first-century American surveillance state is like rotary phones, eight-track cassette players, and Joe Camel ads on billboards. It’s a quaint notion from bygone days that certainly weren’t as quaint as we like to remember them as being.

We are a wired nation, and as you read this article more wires are being placed, more routers are being hooked up, more video cameras are going online, more drones are flying overhead, more spying software programs are being developed, and more data is being scooped up and stored. Satellites are looking down upon us from above, Automatic License Plate Readers (APLR) are monitoring where we drive, and who knows as we stare into our computers who or what is staring back? However much our digital gizmos give us access to the world, they also give the world access to us. It’s like Newton’s third law of motion, but revamped for the digital age: for every action there’s an equal and opposite reaction. To be wired to the world cuts both ways.

On one level, we should be glad. The surveillance state does help authorities catch criminals. From the Oklahoma City bombing to the Boston Marathon bombing, video cameras helped provide helpful evidence. Who knows how many criminals, or terror attacks, have been thwarted by technology? And with ISIS videos of beheading and burnings flooding the Internet, our desire to feel safe and secure will only increase.

Of course, safety and security come with a price. The question is how to value that price correctly, a process that hardly lends itself to geometrical precision.

“They who can give up essential liberty to obtain a little temporary safety,” said Benjamin Franklin, “deserve neither liberty nor safety.”

However catchy Franklin’s quip, like all catchy quips it makes too simple what’s anything but simple. Who decides what liberty is “essential”? What constitutes “a little temporary safety” as opposed to a long-lasting and more solid one? What transcendent standard guides us to the right balance between freedom and safety? What if the protection of free speech, certainly an “essential” liberty, costs 500 lives, or 5,000, or 5 million? Who’s going to tell the mother of one of the dead, “Well, your child died, but we’ve protected free speech, and thus Larry Flynt’s Hustler magazine remains secure?

Quis Custodiet Ipsos Custodes?

No one wants to tell that to anyone’s mother, which helps explain why, in times of stress, the government has infringed upon our rights in the name of safety and security.

Within a decade of the ratification of the United States Constitution, the government passed the Alien and Seditions Acts in 1798. Signed into law by President John Adams, the Alien and Sedition Acts consisted of four laws passed by the Federalist-controlled Congress as America prepared for war with France. Among other things, it made illegal for any person to “print, utter, or publish . . . any false, scandalous, and malicious writing” against the government. (This was how long after the ratification of the First Amendment right to free speech?) During the Civil War Abraham Lincoln suspended the (“essential?”) right of habeas corpus and even arrested members of the Maryland legislature and others he deemed dangerous to the cause of the Union. During the First World War President Woodrow Wilson severely curtailed free speech, throwing in jail some who dared to question his war policies. We already mentioned the Japanese internment, a policy upheld by the U.S. Supreme Court, the one body specifically designed to protect citizens from the infringements upon their rights that wartime hysteria can create.

Quis Custodiet Ipsos Custodes? (“Who guards the guardians themselves?”) is a question that becomes even more pertinent, especially now that the guardians are equipped with a host of devices that their predecessors never dreamed of.

“Ways may someday be developed,” wrote U.S. Supreme Court Justice Louis Brandeis in a 1928 wiretapping case, “by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”

Well, someday is here!

The Sad Case of Lars P. Qualben

The question of government snooping on its citizens is not new. Governments have always snooped on their own people. Many times it’s nothing but law enforcement. The only problem is that that same technology that can track down drug traffickers, child pornographers, or terrorists can be used on those who are not doing anything illegal.

How then does the government find the “right” balance (whatever that is) between protecting the lives and property of its citizens and their privacy as well?

Right after September 11 the U.S. government faced a lot of hand-wringing and criticism. Why didn’t we stop these fanatics? Shouldn’t our intelligence have warned us beforehand? Could not these attacks have been prevented? One thing we didn’t hear, at least in the immediate aftermath, were worries about too much government intrusion into private lives.

If anything, people were ready for more.

And they got it, too: the Aviation and Transportation Security Act, the Patriot Act, the Enhanced Border Security and Visa Reform Act, and the Homeland Security Act. All these acts came directly in the wake of September 11, and all with the same purpose: national security. These were at least the legal actions; it took someone like Edwin Snowden to reveal the illegal ones.

John Whitehead has warned that the Patriot Act “drove a stake in the heart of the Bill of Rights, violating at least six of the Constitution’s ten original amendments.” It does allow for, among other things, “sneak and peek” and “black bag” secret searches of people’s homes, cars, computers, and workplaces. In other words, the government can break into your home, snoop around, and leave without ever telling you it had ever been there—exactly what Brandeis had worried about back in the 1920s. Whether a liberal or a conservative, one can’t help thinking something is very un-American about a practice like this.

The ACLU warns that the Patriot Act “granted the FBI—and, under new information sharing provisions, many other law-enforcement and intelligence agencies—broad access to highly personal medical, financial, mental health, library, and student records with only the most minimal judicial oversight. The court must issue a subpoena whenever the FBI states that it is for an investigation to protect against international terrorism. The recipient of the subpoena is prohibited from telling anyone that the FBI has asked for the information. Now the FBI can get the entire database of a credit card company or the records of everyone who has used a certain public library. It can obtain information on everyone registered at a particular hotel, hospital, or university. It does not need to show probable cause that a crime is, has been, or will be committed.”

The Secret Surveillance-Industrial Complex

We might not like this intrusive power, but what if—had they been in place before September 11—Patriot Act provisions might have saved the lives of the thousands of others who died when the towers fell? Would the provisions have been worth it?

How many lives might these provisions still save? None? Thousands? How much privacy is worth a life, anyway? If letting the United States government read e-mail or collect phone data saved a life from a terrorist attack, would it be worth it? If it were your life, or your child’s, your mother’s, or your sibling’s, the answer would be a no-brainer. Just ask the relatives of the mothers, children, and siblings killed on September 11. The moral ambiguity that John Whitehead and others face about the dangers of the surveillance state probably isn’t theirs.

But the dangers are, nonetheless, real. In 2011 the American Bar Association warned about our technologically advancing nation.

“These technological advances,” the authors say, “combined with popular and governmental anxiety about terrorism and other transnational crime, have led to the rise of a massive and secret surveillance-industrial complex—part of what the Washington Post has called the ‘alternative geography of the United States.’ This alternative geography encompasses what Professors Jack Balkin and Sandy Levinson term the ‘national surveillance state’: the proliferation of government technology and bureaucracies that are able to acquire vast and detailed amounts of digital information about individuals with minimal or no judicial supervision and often in complete secrecy. The U.S. government has the capability to single out any American and track his or her movements, purchases, reading habits, and sometimes even private conversations. And it is already using this power.”

1984 but a Few Decades Later?

If Uncle Sam is using this power to track down the next Mohamed Atta or Dzhokhar Tsarnaev, who’s going to complain? The question is How many innocent people get their privacy violated in the process? And again, whose political belief or religious practice deemed fine now will become suspect tomorrow? The issue gets even more complicated when U.S. security isn’t just looking to catch those who have committed crimes but to stop those who intend to before they do.

This was the theme of Spielberg’s Minority Report. The state had the ability to stop murderers before they committed the crime, even if the technology turned out to be flawed and was eventually shut down. Minority Report was an interesting, if not far-fetched, vision of the future. Though decades too premature, maybe George Orwell’s 1984 better captures our potential techno-tyranny.

“There was,” wrote Orwell of this dystopian society, “of course no way of knowing whether you were being watched at any given moment. . . . It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

We might not be there yet (some think we already are); and maybe we never will be, regardless of how much the surveillance complex grows. No question, though: the more dangers we face from without, the more we will face from within as well. And the more our consciences will be stage-managed by the expectations of the system.

Article Author: Hazen Dupre

Hazen Dupre is a pen name.