A Seamless Surveillance Culture

A Seamless Surveillance Culture

Despite urban legend that NSA surveillance is a news media crusade because the majority of Americans "approve" government surveillance to protect them from terrorists, a new USA Today/Gallup poll finds that almost two-thirds of Americans are concerned that the monitoring may signal other, not-yet-disclosed efforts to gather information on the general public.

This is the central question: Are all of these NSA ingestion and digestion programs merely more efficient efforts to apprehend criminals and terrorists in the digital age, or are they the building blocks of a new seamless surveillance culture?

The government's position is that if you are "innocent," you have nothing to hide. It is a new version of 'you are either with us or against us.' Massive monitoring is of course meant to find terrorists; I completely believe that this is not some 1960's enemies list politically motivated effort. But these post 9/11 programs signal a new and different problem.

People of Middle Eastern and South Asian descent and Muslims are potential terrorists, machine selected as "of interest."

Throw in there callers and travelers to Pakistan and Saudi Arabia, recipients of wire transfers, purchasers of fertilizer, flight school attendees. These are the new guilty until proven innocent.

Innocent means of course mostly white, mostly Christian Americans who accept that the government knows best and that the national security state is only after the bad guys and would never apply its new found capacities in any illegitimate way.

The government and its new seamless surveillance culture are building a digital dividing line, even in our own society. The assumption is one of an enemy in our midst.

The government's failure to provide for domestic tranquility and basic security in our homes is rewarded by more power for the government; "innocent" Americans are increasingly primed and frightened to accept that greater government surveillance is required by the realities of infiltration, ceding even more power. It is as much a way of thinking as it is a way of life.

In his radio address Saturday, President Bush said that "the privacy of all Americans is fiercely protected in all our activities."

"We are not trolling through the personal lives of millions of innocent Americans," Bush said.

National security adviser Stephen Hadley said on CBS' Face the Nation that "there are a variety of ways in which [telephone call] records lawfully can be provided to the government."

"These are business records that have been held by the courts not to be protected by a right of privacy," Hadley said.

The Supreme Court ruled in the 1970's (Smith v. MD, 442 U.S. 735) that government collection of phone call records did not violate the Fourth Amendment of the Constitution, that collection of the numbers was not a 'search' and hence no warrant was required.

"[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial," the Court said. Telephone users convey numbers to the phone company, the numbers are listed on bills, and there is no legitimate expectation of privacy in information voluntarily turned over to third parties. The caller assumes the risk that the phone company could and would reveal the number dialed to the police, the Court concluded.

Almost thirty years later, much has changed. The government and the law enforcement agencies can not only seek this information without a warrant to examine calls of suspect individuals. With modern computing power and data crunching programs, the government can now ingest all of the data seeking suspect individuals. The starting point is different. In the 1970's, given technology, targeting was necessary by virtue of efficiency. Today, the computers and software are let loose on the data trawl, looking for indicators of wrong-doing, tip-offs worthy of further attention.

When the President says that the NSA is "not trolling through the personal lives of millions of innocent Americans," I'm sure he is saying to "innocent" Americans shouldn't be concerned that the computers and the new surveillance will tag them as "of interest." Innocent Americans is the key here, not trolling. The personal lives and privacy of innocent Americans, so the argument goes, are safe from the computers because their activities are not triggering the system.

In today's post 9/11 we've-got-to-give-up-some-liberties-to-fight-terrorism-world, the expectation is being created though that it is normal then for the government to churn through the phone records and Email headers and credit card receipts and bank records of EVERYONE for tip-offs and triggers. What started as an expectation that individuals already of interest to the law enforcement agencies had no expectation that their records were private has digitally expanded to the expectation that no one's records are private.

White House spokeswoman Dana M. Perino says that the government has and will continue to be aggressive in exploiting intelligence resources to target al Qaeda. The government's, she says, is "going to continue to use those tools to their fullest lawful extent until they're no longer necessary."

Political scientist Richard Eichenberg of Tufts University told USA Today that "the public's tolerance for this sort of invasion of privacy may be topping out. It may be people are starting to say: 'When is the other shoe going to drop? What else are they doing?'"

Right now, I don't think that there is a "what else." But tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile.

Two-thirds of Americans polled by USA Today/Gallup say that are concerned that databases will identify innocent Americans as possible terrorism suspects.

With the new seamless surveillance culture, Americans are right to be concerned. In our zeal to identify an enemy in our midst, we have applied 1970's laws and pre-digital age thinking to the problem of privacy and security. The end product is an assumption of two Americas -- one innocent and one threatening. It is an assumption that itself enhances government power and facilitates greater abuse.