Monday, June 10, 2013

The discrete individual, choosing

Last week, concrete proof surfaced showing that the National Security Agency has been engaged in the collection of vast amounts of data from telephone calls placed and emails sent by Americans; that this data has been gathered in some cases under the auspices of secret court orders; and that the amount of data collection far exceeds what was previously believed.

It is no longer implausible to believe that the NSA records not only the metadata of these communications (essentially, who, when, where, and how) but also the contents, and that it captures that data from every American.

I am disturbed by this on a number of levels.  These kinds of communications are considered by most people to be private and inviolate.  My calls and emails in particular often contain information that is the subject of legal privilege, such as the attorney-client communication privilege.  For me, the intercepting of these kinds of communications is an enormous intrusion into the sanctity of those communications and carries Constitutional implications regarding the right to counsel, the right to petition the government, and the freedom of speech.  But on a broader level, this news is troublesome because limitations on the scope of the government's ability to know what its citizens are doing are an important, and perhaps the most important, foundational part of our system of governance.  Those limitations appear to have been violated, repeatedly and forcefully and with little to no recourse and with no apparent purpose other than that it can be done.

I have long been a critic of the American government's response to the terrorist attacks on 9/11/2001.  The mass murder of nearly 3,000 people is a heinous act, but the reality is that as a cause of death, terrorism barely moves the needle.  Two hundred times that many Americans die each year from heart disease, and no one is talking seriously about banning bacon.  (Anyone who tried would have to fight me.)  The government's response to terrorism was not to tout the virtues of freedom but to limit it.  We went along--and, really, what choice did we have?--and made ourselves worse off.

That the NSA news has not yet resulted in mass demonstrations and angry posturing from Congressmen and women, many of whom swear fealty to freedom as our highest value, is symptomatic of just how broken down the last twelve years have made us.

I do not care how many terrorist attacks have been stopped through this program.  I suspect it's truly zero, but even if it were a hundred or a thousand, I would still say it:  It's just not worth it.  Our freedom is too precious to squander on little temporary reprieves from the malevolence of misguided madmen.

American freedom exists and consists in the sovereignty of the individual.  The things we think of when we try to enumerate our freedoms--freedom of expression, freedom of conscience, the right against self-incrimination, the right against cruel punishments--these things are only shadows and symptoms of what American freedom is.  American freedom is, at its root, the discrete individual, choosing.  What I mean is that we individuals, ourselves, by ourselves, are the owners of the right to plot and plan and execute our own lives.  A government, rightly instituted and constituted, exists for only two core purposes:  One, to manage, prevent, and remedy the conflicts that occur between two individuals, equally free; two, to provide those things that are necessary to make civilized, free society possible, which individuals cannot easily provide for themselves.

Consider for a moment a heavily traveled stretch of roadway.  The government provides regulations for the use of that roadway--speed limits, equipment requirements, protocols--that make it possible for free people to use the roadway efficiently and conveniently.  These things facilitate freedom by minimizing conflicts.

Now imagine a scenario in which the government, using cameras and RFIDs, and various other technology, monitors your compliance with regulations on a zero-tolerance basis.  Drive 61 mph in a 60-mph zone?  That's a fine.  Change lanes without signaling?  That's a fine.  Mis-time the light and run the red slightly?  A fine.  Never mind that no one was harmed or put in the possibility of harm.

I'm sure we can all agree that these things are against the law on a technical basis. And if they generated problems that endangered others, fines may well be appropriate.  But a scheme for constant monitoring at all times, in which the smallest infraction is punished, without fail?  The creation of a surveillance state in that situation would rob us of the pleasure of living, and force us to stifle and restrict ourselves for fear of inciting the fine-collecting authority of the government against us.  Who would want to live that way, under constant accountability for our activities, always subject to question by a government ready to punish us?

It is not that I want to break the law.  It is that the government, properly constituted should not maintain such a tight surveillance and accountability.  Some lawbreaking must be tolerated; it is the price of living in a free society.

In the very first post to this blog, I quoted a long section of which I consider to be among the greatest Supreme Court opinions ever written, a concurring opinion from Justice Louis Brandeis in Whitney v. California.  In fact, astute observers will note that the name of this blog was inspired by that very opinion.  I'll set it out again:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
This latest revelation, about the NSA's activities, is one in a long string of governmental acts that, though probably not designed to that purpose, are clearly arranged in such a manner to maximize fear among Americans.  Whether it is Ari Fleischer saying that "You'd better watch what you say," or a Charlotte-area congresswoman wondering, "If you haven't done anything wrong, what are you worried about?" to body scanners and baggies of liquids and shoe removal at airports, or the constant surveillance of public places by police, to "shelter-in-place" orders when a terrorist is being pursued, we have tolerated and acquiesced and stepped our freedoms back to calibrate to the new normal state of affairs.  But this?  This is wrong.  It is evil.  It is un-American.  It must be stopped.  Who will step up to stop it?  Anyone?

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