The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing…
The moment I read that — it’s in Glenn Greenwald’s first report from the Snowden files on June 5th — I started following, closely, the story of the surveillance state’s unveiling by Edward Snowden and the journalists who received the documents he took.
I also wrote about it: a lot. I attended Eben Moglen’s lecture series, Snowden and the future. I watched countless television segments about the revelations. Over Thanksgiving, I talked to my brother, a computer engineer, about the NSA and encryption. And of course I have had hundreds of conversations with journalists, colleagues and friends about what is without question the biggest story of 2013.
Before the year ends, I wanted to capture a few points that stand out for me from all that.
1. It’s not “privacy” but freedom. In news coverage of the Snowden files you frequently see this shorthand: “privacy advocates say…” From an AP story:
Feinstein’s committee produced a bill last week that she says increases congressional oversight and limits some NSA powers under the Foreign Intelligence Surveillance Act. Privacy advocates say the measure codifies the agency’s rights to scoop up millions of American’s telephone records.
So you have defenders of the NSA on one side, and this creature called “privacy advocates” on the other. But at stake is not just privacy. It’s freedom. This point was made by British philosopher Quentin Skinner in a July interview on opendemocracy.net:
The mere fact of there being surveillance takes away liberty. The response of those who are worried about surveillance has so far been too much couched, it seems to me, in terms of the violation of the right to privacy. Of course it’s true that my privacy has been violated if someone is reading my emails without my knowledge. But my point is that my liberty is also being violated, and not merely by the fact that someone is reading my emails but also by the fact that someone has the power to do so should they choose. We have to insist that this in itself takes away liberty because it leaves us at the mercy of arbitrary power. It’s no use those who have possession of this power promising that they won’t necessarily use it, or will use it only for the common good. What is offensive to liberty is the very existence of such arbitrary power.
The point holds for collecting phone records. Even if no one in the government reviews whom I’ve called or texted, my liberty is violated because “someone has the power to do so should they choose.” Thus: It’s not privacy; it’s freedom. But “freedom advocates” would be an awkward construction in a news story.
2. “Collect it all” was the decisive break. Over the summer, I told Glenn Greenwald that he should title the book he’s working on, “Collect it all.” Because that was the point of no return for the surveillance state. The Washington Post took note of it in this profile of NSA director Keith Alexander:
“Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official who tracked the plan’s implementation. “Collect it all, tag it, store it. . . . And whatever it is you want, you go searching for it.”
This was the fateful decision. The people whom Eben Moglen calls “the listeners” passed some invisible barrier (invisible to them) when they decided to go for the whole haystack. The line they crossed separates the possibly legitimate, though dirty and distasteful tactics of spies from the impossible-to-justify, “let’s hope it never becomes public” stratagems of an out-of-control surveillance establishment.
Moglen calls Collect it All one of the “procedures of totalitarianism.” He’s not saying the U.S. has become a totalitarian state. He’s saying it adopted one of that state’s procedures. Legitimating such a move before a self-governing people is very, very difficult. And this is why the surveillance state is in such trouble, politically.
3. Snowden going public changed everything. I have written about them before, but for me these words from Edward Snowden are the most important he has uttered since his name became public. They are in Barton Gellman’s June 9th report:
Whistleblowers before him, he said, had been destroyed by the experience. Snowden wanted “to embolden others to step forward,” he wrote, by showing that “they can win.”
By deciding to go public — as the one who leaked the documents to journalists because he could no longer live with himself if he didn’t — Snowden ended the whodunit before it could start. It wasn’t only that he revealed his name, security clearance and position. It’s that he made arguments for why he did what he did. These arguments, the most important of which was that the public should decide if the surveillance state has gone too far, were met with a furious counter-attack, and of course many of his fellow citizens rejected them.
But this is precisely what he meant by “win.” Now there was a debate. It was easy to despise and reject Snowden. Much harder to despise and reject the discussion he touched off. (Obama couldn’t.) None of that would have happened if he hadn’t gone for the win by revealing himself and his motives for leaking the documents. 
21 Comments
This is one of my favorite 50,000′ looks at the Snowden revelations.
Here’s the thing I’m still missing though: a thorough and modern argument for why we need privacy. “It’s not privacy, it’s freedom” is a step in the right direction, but I’m talking about something to connect the dots for the majority of people who are kinda sorta OK with the NSA data dragnet for a collection of reasons. I think those people are convincible, but I think old pro-privacy arguments do not work on them. Partly because they’re too abstract. Partly because they don’t address today’s facts.
In other words, they way pro-privacy arguments were made in the days when we all believed we HAD privacy somehow makes those arguments seem less applicable to our times. Hence all the people who are able to make themselves OK with the spying.
I believe we need someone to write a contemporary argument that starts with “it’s not privacy–it’s freedom” and connects the dots with everything we know, the effectiveness of the spying, past totalitarian governments, and lays out a case for how the domestic spying has a high likelihood of damaging our society in the short term.
I personally have not seen that case made particularly well in any one place, and I find it curious. I think that majority of Americans WANT to be convinced that they should object to the government’s behavior.
The case is made clearly in recent history. The STASI in East Germany, the KGB in the Soviet Union, the secret police in Romania and Bulgaria all used secrecy to foist totalitarianism on their populations. It didn’t work then and it wont work now. Gov’t must be accountable to the people, not the reverse.
Ahh, but put yourself in the mind of someone who who’s nominally pro-spying, or maybe indifferent. The differences between Soviet Russia and Communist Block Germany then and the USA today are palpable. It starts to look like “if we wear too much red we’ll become commies!” It’s way to easy to say “that’d never happen here.” If you want to make the case that Bad Things are inevitable when you have Domestic Intelligence Dragnet you need to spell that connection out for people very literally and very persuasively.
The reason you need “privacy” (or “freedom”, which I think are mostly terms of convenience, what we’re really talking about is a power relationship) is that the modern state is unimaginably powerful, in fact, the United States has the power to obliterate all human life overnight if it chose to.
One of the interesting things you’ll learn if you study a bit of cultural anthropology is that many so-called “primitive” societies don’t have much conception of “privacy”, for the simple reason that it isn’t needed in the absence of a system of power. Where a system of power does exist “privacy” or “freedom” also must, if you want a chance at a decent life.
this might be a dispute of terms, but I think of privacy more in the form of taboos. primitive societies have fewer taboos and therefore a lesser need for privacy. To a certain extent privacy implies a need to hide, and what needs to be hidden except the taboo?
With or without power we are all imperfect beings and desire privacy to hide this fact.
Privacy, in a some respect, is related to taboos, but it is a rather negative connotation and the relation is minuscule to the full extent privacy impacts our lives.
It is often the nature of human beings to hide their shame to avoid social ostrification for violating the present taboos, but there are many reasons for privacy beyond hiding what we feel guilty about.
Privacy allows us to have unadulterated conversations with ourselves and others which are not self-censored out of the fear of being recorded or anaylzed – the fear doesn’t arise because we are doing something socially or morally wrong, but because the arbitrary power performing the surveillance may not agree with the thoughts being conveyed. This is the origin of fascism.
Privacy is a fundamental requirement for exercising the right to free speech and the right to freely associate and assemble peacefully protected by the 1st amendment. Without it, the State has the ability to abridge these rights by sabatoging the individual’s capactity to be heard and spread his/her message. In other words, the government may try to quash a rights movement before it can gain traction by attacking/intimidating the leaders of the movement (and for those who say there is no proof of this power being exercised only have to look back to the origination if the FISA court due to the spying performed on Martin Luther King).
Privacy is critical to developing and exercising one’s individuality and creativity. As Snowden put it, “privacy is what allows us to determine who we are and who we want to be.”
Privacy protects the intellectual property of individuals and businesses.
Privacy is the liberty to disclose only the information about you you wish to have disclosed whether that information violates taboos or not.
Privacy is much more than hiding. It is liberty and freedom to be oneself.
Extremely well put. After reading your comment I can’t help but conclude that this NSA surveillance program ultimately represents an attack on individualism. Combine this with the insidious nature of commercial data collection via apps, search engines and social networking and it becomes clear we, as a society, are being not so subtly ‘encouraged’ to trade privacy and freedom for consumerism and the pretense of safety…and the number of people willing and able to explain why this is a bad deal seems to decrease with each passing year.
The conflict with privacy or freedom isn’t the real trade-off with “security.” The trade-off is between the power of those whom we’ve employed to serve our interests and our power to decide what our interests are. The real conflict is one regarding the balance of power in our republic.
Our Constitution is a contract between 2 parties; and it’s premised on mutual interests and cooperation, each clearly articulated in order to make sure that the contract is fair. But it also articulates what can’t happen as a result of that contract–it codifies our rights.
So, the ultimate take-away from the Snowden revelations may be that one party to the contract tried to get away with actions that would make our contractually fair relationship inherently unfair, by doing things about which we weren’t aware to us whilst suggesting that what we didn’t know about was approved by us (through our elected agents) and in our best interests.
Snowden reveals that our elected officials and their subordinates decided to reduce our liberty in the name of our security, in secret.
Contract. You mention the word 3 times in your second paragraph. That’s the key, I think.
The problem with the spying is that there is no contract between the spies (govt) and the people. There is a series of secret “orders”. So we feel “under the boot” of this monolithic power – which pretends to be our government or to act in the name of the government.
So, yes, I’d agree that the issue relates to freedom/liberty. And a lack of justice!
I wonder if we’re talking about isn’t “injustice”?
(I once wrote a blog called: Is freedom possible without justice? Click my name, which should now connect with that blog.)
Alesh,
It would seem that Dr. Rosen has just written one such contemporary argument, building upon Quentin Skinner’s argument of the same….now it’s up to the general public and all responsible journalists to lather, rinse, and repeat….
I agree that this post is a step in the right direction, and connects important points that need to be connected. But I can also imagine someone who’s on the fence about Domestic Intelligence Dragnet coming away from it thinking something like “yeah, there are troubling aspects to this, but on the whole it’s probably a good thing, and in any case there’s nothing I can do about it.”
If we can change a huge number of people from that mindset to “this is an outrage! It has to stop!” we’ll be on to something.
The debate is about trading freedom for security. Our forefathers have traded quite a lot of freedom for security in establishing the modern state. The citizens of the state need to collectively decide where to draw that boundary under current circumstances. The Snowdon revelations have enabled an informed debate to happen, and I’m grateful to him for that. Michael
“It’s no use those who have possession of this power promising that they won’t necessarily use it, or will use it only for the common good. What is offensive to liberty is the very existence of such arbitrary power.”
NSA? Of course
IRA?
EPA?
There is some irony in here somewhere.
Also all of your medical records are going into massive searchable databases.
I agree with you on the problem but probably disagree to its extent.
You cannot have freedom without privacy. Nor, if you are not free, can privacy have any meaning since, by definition it is always contingent on the whim of your masters.
It is not a case of “It’s not privacy, it’s freedom!” – although, as others have noted, the point about freedom needs to be made, and I am very glad to see it made.
Privacy is a necessary aspect of freedom; the freedom to choose to be alone, to have a life separate from communal oversight, to explore our own *private* sense of what it means to be an individual.
I also dispute the author’s statement that the USA has not become a totalitarian state. Which features of such a state are missing?
Americans have no privacy and, increasingly, no right to privacy.
Americans require their government’s permission to leave and enter their own country, and can be denied this permission on an unaudited whim of a faceless bureaucrat, with no recourse.
Americans can be tasered or shot to death in the street for failing to show sufficient deference to police officers.
Americans can be tortured, imprisoned indefinitely without charge, and killed, on a secret executive whim: again, all the above without recourse to a court, to any legal representation, to public or family notification, and most significantly, with complete impunity for the people who carry out these criminal assaults on your liberty.
What the author SEEMS to mean is that he doesn’t yet fear this will happen to him, or perhaps that these things are not yet pervasive enough to compel such a conclusion?
But these are questions only of degree: the character of this beast has been made manifestly and incontrovertibly plain. That this is a totalitarian state is beyond question.
The only real question remaining for Americans to answer is: how many of you will you let it kill before you stop supporting it?
[“It’s not “privacy” but freedom.”]
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Rather it’s vast “criminal” action by people we employ in the government. The NSA/FBI actors are felonious criminals.
Abstract theory about freedom is nice background, but the barbarians have already surged over the castle walls and are standing over you right now at your home PC keyboard. Much worse is coming soon — time for theorizing is an amusing illusion.
A just American legal system would immediately indict and convict these revealed government criminals. But that will not happen because justice and the rule of law were lost long ago in America. Government actors/criminals do what they wish; they control the alleged criminal justice system, while the MSM keeps us fully informed about ships stranded in Antarctic ice.
This NSA stuff is just a symptom of a MUCH larger malady within core American government.
“There is hope, but not for us ”
(Franz Kafka)
The fatal flaw in the argument presented in this article is the assumption that most people know what freedom is, let alone why it is valuable. Ask people around you for a definition of ‘freedom’ and their responses will help you see what a perilous state this experiment in democracy is in. In fact, if all parties to this discussion (and the entire ‘war on terror’ paradigm it stems from) were forced to define their terms, the agendas would be obvious. In a larger sense the point is not privacy vs. freedom but the purpose of language itself. Once you understand that, for most people in government and media, language has morphed from a means to communicate and inform into a means to manipulate…then things begin to make sense.
Good post! I think the point about the Snowden files not being about privacy but freedom is something one can also apply to foreign countries whose citizens’ data has also been scooped up by the NSA (accidentally, intentionally, whatever). It’s the same argument I’ve used with friends when the Snowden files came out — because as a Canadian, I felt that the Canadian government not taking a staunch stance on the revelations that the US also scooped up foreign communications demonstrated that it was okay with a foreign power being able to potentially spy on its citizens if it wanted/needed to.
It is ironic that one of the greatest difficulties in reporting this story, is explaining to Americans the concept of freedom and why it has value, other than as a slogan. Under a regime of ubiquitous surveillance, you must self censor and consider how your thoughts might be perceived by the powerful.
just a random thought
The Declaration of Independence, the Constitution, and the Bill of Rights do not contain any reference to a right to privacy.
The right to privacy, however, is implicit in the right to private property which is mentioned in the Bill of Rights.
One cannot have Freedom, Liberty, or Privacy without the right to private property.
Greetings Jay,
As you might be aware, the Putins of the Cold War period placed a price on any head which tried to expose the insider workings of the soviet regime. The KGB, Stasi and Czech secret police used surveillance ‘to know everything’ and in a very surreal way the West is exchanging one brutalism for another…
The recent Times’s editorial on the First Day in January looked at the ways Snowden effect has impacted on the United States, and in fact, the world. I must admit that I agree that Snowden is a whistleblower who will go down in history as performing a great public service. But, I know that his life is not really worth living as suffering will meet him on every corner …
Sadly, most of us are cruel and will disagree with the tenor of the editorial: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.”
Vaclav Havel used to remind his followers that every avalanche began with a snowflake …
If a criminal dictator ever takes charge of any country we better pray that the snowflakes do good rather than evil!
My Two Cents Worth as the editorial is causing wide division of opinions
Jozef