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The NSA and Your E-Mail
Better Read Than Dead?
Peter Meilaender

Hearing about the news at home from foreign sources can be an interesting experience, as I discovered earlier this year when Edward Snowden leaked his story about massive electronic surveillance by the United States’ National Security Administration. At the time, I was finishing teaching a study-abroad course in Vienna, and my information about the surveillance scandal thus came primarily from Austrian (and later, while traveling, Swiss and German) newspapers. Two things struck me. One was the immediate and high level of interest in the story. About a week or so after the news broke, as I was traveling by train from Vienna to Bern, I fell into conversation with the gentleman sitting across from me, an orchestra conductor. When he learned I was American, the first words out of his mouth were, “So, what do you think about this huge surveillance program your government is running?” This was not just an American scandal; it was of profound concern to many Europeans also.

The second thing that struck me was that the European level of interest not only seemed high, it seemed even higher than that in the United States. Perhaps this was in part due to greater feelings of vulnerability among Europeans, who, unlike American citizens, could not hope to exercise much influence on future debates over American policy. It was clear also that many Europeans—especially in Germany—felt a sudden sense of betrayal: their powerful ally and friend spied on them just as it did on everyone else. But almost every news article I read commented specifically on the low levels of interest and outrage among Americans over the revelations. Americans, it seemed, were taking this in stride, either assuming that their ­government had been engaged in such ­surveillance all along, or even relieved to learn that it had, or at least confident that it would not abuse its power. News reports gave off a certain tone of resignation on this score: Europeans could not do anything about American electronic espionage, and Americans, alas, would not.

Now perhaps these reports exaggerated the degree of American indifference. I was not in a position to judge. And concern among American citizens did seem to increase over the course of the summer, as new revelations about NSA excesses appeared on an almost weekly basis. But in light of the amount of data being collected by the government about American citizens, one might have expected more anger among citizens, perhaps even a few political heads rolling. The details of NSA operations are fuzzy, but we do know that they collect “metadata” on most telephone calls made in the US (i.e., the numbers of the phones making and receiving the calls, the calls’ location, and their duration); huge quantities of Internet traffic, which is intercepted and temporarily stored for filtering and analysis; e-mail and social media posts for a significant but unknown number of people; and the content of phone calls for those people (again, the number is unknown) who have been identified as intelligence “targets.” Because the government may collect additional information on these targets, their phone data leads out into networks of others with whom they have contact, potentially including a great many people. For much of the information collected, the NSA does not require a warrant. And there is at least some evidence to suggest that the NSA is moving toward a system in which they simply collect and store as much Internet traffic as they can.

Where, as they say, is the outrage?

As I puzzled over this, I found myself thinking about a case I often teach in Constitutional Law, class discussions of which never fail to surprise me. In 1990 the Supreme Court decided the case of Michigan State Police v. Sitz (496 US 444), in which the Court upheld the state of Michigan’s program of sobriety checkpoints to combat drunk driving. Under the program, Michigan police would set up checkpoints, typically at night, on selected roads and would then stop all vehicles passing through the checkpoint. If a driver showed signs of intoxication, the officer would then direct his vehicle to the side of the road for further tests to determine whether or not to make an arrest. These checkpoints were challenged as violating the Fourth Amendment’s protection against unreasonable searches and seizures. The Court resolved the case by balancing the state’s interest in combating drunk driving against the degree of intrusion on privacy suffered by motorists at the checkpoints. Judging the former to be substantial and the latter minimal, it upheld the program.

Although there is plenty of competition for the title, and others will no doubt have their preferred candidates, I have always regarded this outcome as the most obviously wrongheaded Court decision I know. If the police set up a checkpoint and just stop everyone who passes by, it seems patently obvious that these are not reasonable searches. Indeed, they are by definition unreasonable: there is, literally, no reason for them. There may, of course, be a reason why the police decide to erect their checkpoint at some particular location, perhaps along some county road with a reputation for alcohol-related accidents. But that does not provide a reason for stopping me, that is, for stopping any particular driver. Even if it is true, as the Court argued, that these stops are not terribly intrusive (a claim I am inclined to challenge—how do you feel about being stopped by the police on a dark road at night?), that does not supply a reason for stopping or searching any individual driver. As Justice Brennan wrote in a fine dissent in the case, “Some level of individualized suspicion is a core component of the protection that the Fourth Amendment provides against arbitrary government action.”

While it is obvious to me that this case was wrongly decided, this has never seemed obvious to my students. The first time I taught it I was utterly astounded that not one student out of a class of a dozen seemed to think there was anything wrong with the decision at all. On the contrary, they all seemed rather surprised that I felt strongly about it. And student reactions have remained consistent over the years. I have not yet succeeded in working up any outrage in them over this case! That first group was about a decade ago, so these were students who would have grown up with things like mandatory drug testing regimes for school athletes or ubiquitous security cameras. Thus they were perhaps more accustomed than I to a world in which authorities at various times and for various reasons could access details about their private lives without their consent. Still, these students would not yet have been accustomed to sharing all the details of their private lives on Facebook, Twitter, and the like, or to a world in which practically everybody walks around with a pocket phone capable of photographing anything, any time, and immediately posting it online for all the world to see. It seems unlikely that people’s expectations of privacy today are higher than those of my first con law class ten years ago.

As revelations about the extent of NSA surveillance operations have mounted, citizen concern does appear to have increased, but the response nevertheless remains muted. The similarities to the Sitz case are suggestive. In both cases, authorities, out of a concern for public safety, stop all vehicles (vacuum up all electronic communications) passing through a certain point, without a warrant, or consent, or the “individualized suspicion” that Brennan pointed to in his Sitz dissent. (Even the additional information that can be gathered about those identified as “targets” involves evidential standards lower than those necessary to obtain a normal warrant.) And in both cases, the ­public—perhaps happy to be protected against harm—shows only modest concern. I suggest that there are a few lessons to be learned here.

(1) Hobbes was right. Almost four hundred years ago, Thomas Hobbes, in his Leviathan, argued that the first duty of governments was to protect their subjects. People would submit to and obey a government that could ensure basic security; a government that proved unable to do so could not expect (and was not entitled) to retain its subjects’ allegiance. People’s greatest fear, Hobbes argued, is fear of violent death. More than anything, they want their lives not to be “solitary, poor, nasty, brutish, and short.” And so they demand a power sufficient to protect them. The modern West has enjoyed so much liberty and prosperity that it is easy to forget this basic fact. But presidents know it. Both Bush and Obama, for all their differences, have understood the importance of not allowing another 9/11 on their watch. The public demands security and will sacrifice a great deal of liberty for it. And as Hobbes understood, this desire for safety is a force tending to concentrate tremendous power in the hands of any government that can satisfy it.

(2) Tocqueville was also right. Tocqueville concluded his classic study of American democracy with several chapters pondering “what sort of despotism democratic nations have to fear.” He did not expect democracies to suffer the kinds of obvious, brutal despotism nations had known in the past, the tyranny of the rack and screw. But he did fear that their love of a calm, predictable life allowing a steady accumulation of wealth and comfort—the house in the suburbs, the two-car garage, the iPhones and flat-screen televisions, with a Whole Foods Market a ten-minute drive away—might lead them to submit to a new kind of despotism, “servitude of [a] regular, quiet, and gentle kind.” In particular, a government that could protect their comfortable lifestyle would have a free hand to accumulate ever more power without citizens objecting to it:

[T]he increasing love of well-being and the fluctuating character of property cause democratic nations to dread all violent disturbances. The love of public tranquillity is frequently the only passion which these nations retain, and it becomes more active and powerful among them in proportion as all other passions droop and die. This naturally disposes the members of the community constantly to give or to surrender additional rights to the central power, which alone seems to be interested in defending them by the same means that it uses to defend itself.

We should not underestimate the way in which this kind of habituation over time leads us to accept ever greater infringements on our liberties, to take for granted a world in which the authorities (and others) know or can easily find out whatever they wish to know about us, and thus in which the very concept of an “unreasonable search and seizure” gradually loses meaning. There is a line of descent to be traced from sobriety checkpoints to the online world of Facebook to NSA surveillance.

(3) Lessons from Luther. Despite polling data showing negative opinions about or low levels of confidence in politicians, at a basic level Americans nevertheless retain a fair amount of trust in their government. They believe that the NSA really is working to protect us against security threats (as it surely is), and they don’t really expect it to abuse its growing power or, if it does, they expect the abuse will be the exception rather than the rule, will be corrected, and in any case is better than some terrorist setting off a bomb in one of our cities. This is all no doubt true, and certainly we are fortunate to live in a country where we need not routinely expect the worst of our rulers, one far removed from the world of Hobbes or, to pick a more contemporary example, Bashar al-Assad. But perhaps we might still want to learn a lesson or two from Luther as well. “[S]ince the beginning of the world,” Luther warned in his essay on “Temporal Authority,” “a wise prince is a mighty rare bird, and an upright prince even rarer. They are generally the biggest fools or the worst scoundrels on earth; therefore, one must constantly expect the worst from them and look for little good....” With our system of separated powers, checks and balances, and federalism, we have taken more precautions against these fools and scoundrels than Hobbes did. But this may lull us, as Tocqueville feared, into a false sense of security. We would do well to remember that political rulers exercise, first and foremost, power. They are—Luther again—“God’s executioners and hangmen.” If these executioners and hangmen want to know the details of our private lives, perhaps we should make them work a little harder for it than the NSA appears to be doing these days.

 

Peter Meilaender is Professor of Political Science at Houghton College.

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