Life Under the Surveillance State

Roughly speaking, the contours of the debate over the Obama administration's massive digital surveillance of both foreigners and U.S. citizens have taken this shape:

Obama's critics charge the president with rank hypocrisy at best, and at worst, a fundamental betrayal of his espoused values that has moved the Republic one step closer to Big Brother.

Obama's defenders claim that the whole affair is much hyperventilating about nothing. The program is legal, it has been going on for years with the full knowledge and support of all three branches of government, and it represents merely the rational and proactive approach of a vigilant administration using all the resources at its disposal in a high-tech world to stop terrorist acts before they occur.

Though the controversy has confounded and blurred the partisan divide, both sets of arguments seem like little more than rehashed talking points from the Bush era, with little to say about how things have changed in the last decade.

It's hard to deny the flagrant hypocrisy of the president's actions. In 2007, Senator Obama inveighed against the Bush administration's "false choice between the liberties we cherish and the security we demand." That wasn't just an off-hand remark; it was a major theme of his presidential campaign. Then last week, President Obama declared that "you can't have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we're going to have to make some choices as a society."

That's about as stark as flip-flops get. On the other hand, the exposure of a politician as a hypocrite isn't exactly breaking news.

The more meaningful and vexing question dividing critics and defenders is this: Given the extant technology to track and analyze phone and digital communications in the aggregate in a manner that might substantially help law enforcement map out terrorist conspiracies, should the administration have refused to avail itself of this powerful resource in deference to its respect for privacy and civil rights? Should it have risked civilian lives to better preserve American values?

Reasonable people can -- and clearly do -- differ on the answer to that question. The president has declared the need to "strike a balance" between the two competing objectives and argues that his approach, which includes judicial review and stops short of monitoring the content of phone calls (we know less of what PRISM's online surveillance consists of), carefully positions the fulcrum at the correct balancing point. His critics argue that the president's approach is grotesquely off balance, and that the legislative and judicial oversight mechanisms built into the programs' architecture is really just the legalization of George W. Bush's unconstitutional national security and surveillance state. Moreover, limiting the scope of the intelligence gathering to "just" metadata is a lot more intrusive than it sounds.

At the end of the day, though, it's hard to imagine any president making a much different call than the one Obama has made. As long as it's permitted by the Constitution (or, what amounts to the same thing, is deemed constitutional by the Office of Legal Counsel), the reality is that any and every administration would and will avail itself of every power it has to pursue its enemies, foreign and domestic. To imagine that a president would willfully prohibit his or her security apparatus from using every tool possible to hunt down terrorists out of adherence to an abstract principle, whether it's a liberal respecting civil rights or a conservative aspiring to limited government powers, is naive bordering on an Aaron Sorkin screenplay. When it comes to surveillance (and enforcement, and detention, and warmaking), what's now being called "Bush's fourth term" will inevitably be extended to Bush's fifth and sixth terms in the next presidency.

The more far-reaching question in the debate on privacy is not whether Obama should or should not have made the decisions he did, but what social and historical conditions are making it possible for such massive surveillance programs to be constructed in the first place? This isn't just a question of policy or politics; it's a story of technology.

The fact is that we've been living in a surveillance society for years, and everybody knows it. Indeed, we're all complicit in it. Everything we do online is being monitored by someone, usually for benign purposes, such as selling us a new sports bra or luxury automobile. But it takes little imagination to conceive of the malignant purposes such a vast digital architecture could be put to. No less than Google's CEO, Eric Schmidt, has that "everything a regime would need to build an incredibly intimidating digital police state -- including software that facilitates data mining and real-time monitoring of citizens -- is commercially available right now."

Is it such a surprise that the United States government is leveraging whatever parts it can of that gargantuan information apparatus to catch terrorists? They'd be reckless not to. The 9/11 hijackers may have carried off their attacks with box cutters, but today, Al Qaeda exists primarily online. To ignore the motherlode of digital intelligence stored in Silicon Valley servers and phone company databases would be like fighting a modern guerrilla army with a cavalry armed with muskets. That's why the NSA started pushing the government to "rethink" the Fourth Amendment in the context of the digital age all the way back in 2001. The NSA, the agency's memo creepily declared, "must live on the network."

To date, if the administration is to be believed, U.S. citizens have not been subject to online surveillance and data mining by the government. Foreigners have. If that's in fact the case, will it remain so? Given the NSA's aspirations, the real and perceived exigencies of national security, the evidently pro forma character of the oversight of the two other branches of government over the executive's expanded surveillance portfolio thus far, the establishment of telephone metadata surveillance as a constitutional baseline, and the simple existence of the technical capability to extend such monitoring to domestic terrain, it takes a certain amount of optimism to expect it, especially in the aftermath of another major terrorist attack. If a single terrorist cell were to emerge that was composed of American-born citizens and carried out an attack in an American city, how long would it take for PRISM to be extended to U.S. soil? My guess is that Congress would be absolutely clamoring for it.

These are the wages we pay for our existence in a digital world. To a small minority of Americans, the risks entailed by the perpetual erosion of private space and funneling of our digital data to private corporations is an alarming reality of the modern age that has serious and disturbing implications for the future of our society. For most of us, it's just another piece of bad news to shrug off, like politicians being owned by corporations and the possibility that cell phones might cause brain cancer. There's nothing we can do about it, and there's a pretty big upside: the ease and convenience of life in the internet age.

The alarm surrounding last week's revelation of the astounding scope of government surveillance was the sudden collective recognition that the risks of living in a world in which practically our every activity is logged in a digital archive somewhere are graver than just the disturbing knowledge that corporations know intimate things about our personal lives. The data that the government accumulates for legitimate law enforcement and national security purposes today could easily become the not-so-secret files of a 21st century J. Edgar Hoover or COINTELPRO tomorrow. If history teaches us anything, it's that where there resides the possibility of government abuse of power, there will eventually be abuse of power, and the greater the power, the greater the abuse.

The power -- and the potential for abuse -- that the Obama administration is amassing to the government is monstrous. It isn't, however, being created extrinsically and imposed upon us from above. It is merely harvested and organized out of the vast, dormant reservoir of power we have forfeited by relinquishing our claims to our personal data in exchange for the enormous benefits of the digital age. Today it's our phone records; tomorrow, perhaps, our emails and browser histories. Whether the rewards are worth the risk we'll learn sometime in the near or distant future.

As is often the case, the moment is captured best by an Onion headline: "CIA's 'Facebook' Program Dramatically Cut Agency's Costs." It's in the gap between the reality and the parody that the point is clear: the government doesn't need to erect a massive apparatus of social control, because we've already happily done so ourselves. All that remains is for the president to take its helm, and for us to hope for the best.

Leighton blogs at Dog Park Media.