Scandals just aren’t what they used to be. As mentioned in the previous column on the government building a massive database of everyone’s phone records and also figuring out a way to track absolutely all online activity in real time – scary stuff – this isn’t like other scandals. Nixon directed his people to commit actual crimes, Reagan sold arms to our sworn enemy, to fund a bunch of thugs and rapists trying to overthrow a government in Central America he didn’t like, which was specifically forbidden by a specific law, and of course Clinton’s big scandal was about hot and heavy illicit sex with a sweet young thing. This is another thing entirely. This is a scandal for nerds – the only ones who can even guess how all this works, if it does. Everyone else is in the dark, which reduces potential outrage. It’s hard to be outraged at the data-mining of metadata. Normal people don’t know what those words even mean. There will be no KEEP YOUR GOVERNMENT HANDS OFF MY METADATA or DON’T MINE ME bumper stickers.
This is not catching fire. Perhaps those of us who have participated in building data warehouses and developing algorithms to “mine” them – to find who you really don’t even know is there – are less upset about this than the general public, but a day after the revelations of all this spying on all Americans, if that’s what this is, the general public seems to have shrugged. The political blogger Kevin Drum, who also used to be in systems, suggests the problem is this:
Suppose the government started up a program that tracked everyone’s mail. They didn’t open letters to read them, they merely kept track of the address, return address, and postmark date for every piece of first class mail and every package that anyone sent anywhere. This metadata would, naturally, be collected for anything sent through the postal service, but also for packages sent via FedEx, UPS, and so forth. The postal system is pretty automated these days, so this probably wouldn’t be all that hard to implement.
Anyway, how do you think the public would react? Would people care more about this than they do about phone and email records?
That’s an interesting question. President Obama is also thinking that way, or saying he thinks that way. At the moment he’s out here, in the neighborhood – a fundraiser down in Santa Monica at noon and then a short hop out to the fancy Annenberg estate near Palm Springs for a weekend with the Chinese president, to discuss their hacking us and other matters. But the evening before that he was up in Silicon Valley, in San Jose, trying to calm things down:
He emphasized that the intelligence community is only looking at phone numbers and durations of calls, not who was talking or the contents of the calls.
“Nobody is listening to your telephone calls – that’s not what this program is about,” Obama said.
That may not help, as he didn’t exactly say what the programs were about, only that they have been “authorized by broad bipartisan majorities” in Congress, which has “been consistently informed on exactly what we’re doing” – which isn’t all that comforting. Congress is about as popular as genital warts and trusted less than Jimmy Cash in the car-loan commercial. Still, Obama does understand the unease here, and, without explaining much, because it’s so secret and so technical, he tossed the problem back to all of us:
He acknowledged that there are critics of the programs and their encroachments on privacy.
“I welcome this debate, I think it’s healthy for our democracy,” Obama said.
“We can’t have 100 percent security and also have 100 percent privacy and zero inconvenience,” he said. “We’re going to have to make some choices as a society.”
Okay, America, what do you want to do? Let’s talk.
It isn’t that easy. One of Andrew Sullivan’s readers offers this:
The line between “contents” and “metadata” has blurred in the age of mobile, and the government is taking advantage of that. In 1970s and 1980s, when we passed most of our current government privacy laws, phones were dumb, stationary, shared devices that we used several times a day and otherwise left alone. Today’s phones are “smart” personal devices that are turned on and on us all day. They generate a record of a specific individual’s calls. They also create a constant, moment-by-moment record of our movements. And once I have that, I know where you work, I know where you sleep, I know the church you attend and the doctors you visit. I can also make a pretty good guess of whether you’re gay or straight (are you always at 17th and Q on weekends?).
The old laws, and even the more recent Patriot Act, didn’t account for all this, and the Obama folks are pulling a fast one on us, except that Sullivan, in reply, doesn’t seem to care:
I guess I assumed that was already taking place, and don’t have the visceral reaction many have. I understand the gravity of the worry – and think this should have been an open, discussable program, rather than a super-secret one. … But, sorry, I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy. The threat may be far less than we fear.
In the Economist, Matthew Steinglass sees it another way:
One thing I haven’t seen enough of in the coverage of the latest surveillance scandal is a reminder of what it is we’re afraid of when the government collects such immense amounts of data in sweeps of our personal information. It’s not the totalitarian fear that an agency that knows exactly where we are and who we’re talking to at all times would find it easier to round us up; we’re not a totalitarian state, and in any case, in modern America, if the police want to arrest you, they’ll be able to find you.
Steinglass says any legitimate fear boils down to two things:
The first is the possibility of illegitimate pressure based on information we didn’t intend to be made public. Everyone has secrets; everyone has things they’d prefer not be publicly known. If a detective who suspects you of committing a crime knows that when your wife called you at 11.30 pm on Wednesday you were at the apartment of your attractive co-worker, that detective is likely to threaten to release that information to convince you to sign a confession. This problem is exacerbated by the fact that when we say “the government” we are actually referring to huge numbers of different agencies and individuals, each of which have their own interests and will use whatever information resources they get their hands on to pursue those interests.
The second is the fear that a pattern of circumstantial activity will lead us to be falsely incriminated, or to suffer administrative penalties that don’t even require any actual indictment. In the era of the no-fly list, it’s not clear what set of activities are enough to get you to pop up on somebody’s computer screen at DHS and turn your life into a Kafkaesque hassle-dome. Did you visit Qatar, then Pakistan, then Qatar again? Did you spray-paint artistic graffiti on a sidewalk that turned out to be too close to Dick Cheney’s daughter’s house? We don’t know; our security agencies will never tell us. Giving the NSA a vast database of phone calls – and inviting them to search for correlations that might be predictive of terrorist activity – is likely to generate a massive number of false positives.
Steinglass also notes that the phone companies on their own “routinely store call and location data from your phone, aggregate it, and sell it to third parties” – and everyone is doing that on all platforms. Have you disabled your cookies lately?
Don’t bother. It’s too late:
A while back I had a conversation about this with a longtime digital-freedom hacktivist who had initially been a senior advisor in the WikiLeaks project. I asked him what he thought were the most important political projects to protect online privacy and organizational openness. He said that ship had sailed; it was too late to carve out a zone of electronic freedom. The architecture had already been defined; the telecoms corporations and the government can learn whatever they want about you, and there was no way to undo what had been built. So, I asked, how did he plan on protecting himself against America’s crusade against WikiLeaks? He didn’t, he said. He had a family to consider. He’d dropped out.
That’s not exactly cheery, but that’s how things are, and on national security, we made a deal with the devil long ago. Josh Barro puts that in perspective:
Sen. Dianne Feinstein (D-Calif.) offered this very succinct justification for the phone records dragnet, in which Verizon and apparently all the other major cellular providers hand over all subscribers’ phone records to the government: “It’s called protecting America.”
Both the public and politicians have been clear: The goal of policies on terrorism is not just to reduce terrorism deaths but eliminate them altogether. Lately, we’ve been getting pretty close. Over the last five years, Americans’ annual odds of dying in a terror attack have been just 1 in 20 million.
If we hope to maintain that record, we had better not have any false negatives in our search for potential terrorists. If the government can’t miss any terrorists, how can it not have a massively overbroad surveillance infrastructure that snoops on all of us?
The perverse impact of zero tolerance for terrorism doesn’t just show up in surveillance. It’s the reason we all have to take our shoes off at the airport, that Boston shut down for a day after the Marathon bombings at a likely cost of over $100 million, and that we invaded Iraq.
Barro argues that this really is perverse:
We don’t think about other social ills this way. Nobody says we should have a goal of zero heart disease deaths or zero auto accident deaths, because that would be nuts. We balance the objective of saving lives against other considerations, like cost and individual rights and the fact that bacon is delicious.
We should apply this cost-benefit approach to terrorism too. This approach would allow us to say that the phone records dragnet can be a bad idea even if it saves lives. But the big resistance to that analysis doesn’t come from Congress; it comes from the American public.
The people have spoken. Absolute and complete security trumps everything else, even who we are, even if absolute and complete security is impossible and always will be. Obama wants to have a discussion on trade-offs. No one else, anywhere, does. That’s why this scandal isn’t much of a scandal.
Salon’s Joan Walsh captures the problem:
Rachel Maddow spoke for a lot of progressives, as usual, when she admitted on her show Thursday night, about the rolling wave of revelations about NSA’s data-dragnet: “Part of me feels like screaming, part of me feels like we’ve known this was going on since 2006-2007.”
We want to scream – this is awful – but at the same time we’ve become passive – this is how things have been for a long time and no one has had a problem with any of it. Walsh is not happy with our passivity:
It’s true, we’ve learned a lot about aspects of the vast post-9/11 surveillance state in the last 10 years, and it’s hard to keep track of who knew what when, and what mattered most about each revelation (including these latest). It’s true that George W. Bush took both the Patriot Act and the Foreign Intelligence Surveillance Act and pushed them beyond the boundaries of legality – and then Congress acted, not to rebuke Bush or rein him in, but to make those abuses legal.
But in just the last few days, we’ve learned vastly more.
It’s just that what we learned isn’t comforting:
None of this, though, is illegal. All three branches of government are in on the deal, from Congress, which passed the laws, to the executive, Bush, who used and abused them; back to Congress, which legalized many of the abuses; to a judicial branch that has consistently accepted the broadest possible interpretation of the laws; to the next executive, Barack Obama, who has used the laws aggressively and demanded utter secrecy about them.
Cue some screaming here: Obama promised the most transparent administration; he has run the most secretive, prosecuting more whistle-blowers for national security leaks – six – than all prior presidents put together. And yes, many, maybe all, Congress members knew about these NSA programs, but some who knew have been blowing the whistle – in code, anyway, as old-fashioned whistle-blowing might get them arrested – that the administration’s interpretation of what the law allowed, if widely known, would be beyond what most people believe the law allowed.
The laws haven’t been secret, but the ways the administration interprets and acts on the laws long have been.
Perhaps that’s the real scandal, or maybe so, or maybe not. It depends:
Now that these details aren’t secret anymore, Americans, including progressives, are trying to decide how outraged to be. I found myself thinking about Brown University’s Michael Tesler’s research… showing that liberal Obama supporters disapprove of certain national security policies like targeted assassination – until they learn Obama supports them, and then they’re fine with it. Is Obama neutralizing a liberal constituency that might be expected to protest some of these national security excesses, because they trust him? I hope they like all these policies as much under President Ted Cruz.
And I can’t tell you how many times I saw devoted Obama supporters, some of them my friends, say something on Twitter Thursday to the effect of “if you’re not doing anything wrong, you have nothing to worry about” – which is exactly how police officers defend controversial policies like “stop and frisk” or aggressive surveillance of high-crime neighborhoods. Lots of people apparently don’t care if the NSA knows how often they call their mom or order pizza, either.
They should, as Walsh cites Jane Mayer explaining the problem with metadata:
In the world of business, a pattern of phone calls from key executives can reveal impending corporate takeovers. Personal phone calls can also reveal sensitive medical information: “You can see a call to a gynecologist, and then a call to an oncologist, and then a call to close family members.” Such information from cell-phone towers can reveal the caller’s location…. Such data can reveal, too, who is romantically involved with whom, by tracking the locations of cell phones at night. …
Metadata… can be so revelatory about whom reporters talk to in order to get sensitive stories that it can make more traditional tools in leak investigations, like search warrants and subpoenas, look quaint. … When the FBI obtains such records from news agencies, the Attorney General is required to sign off on each invasion of privacy. When the NSA sweeps up millions of records a minute, it’s unclear if any such brakes are applied.
Walsh then adds her perspective:
I don’t think Barack Obama cares about my visits to the gynecologist, or that the NSA is keeping data on your affair with that married politician, or John Boehner’s calls ordering another merlot delivery from that place near his home in Washington, D.C. I really don’t. But do we really trust that none of these “patterns” of metadata that expose our private lives will ever become public? That someone won’t mine our metadata for their own purposes, as long as such vast swaths of it are being stored? The scurrilous investigations into the private lives of Rev. Martin Luther King Jr. and John F. Kennedy began with national security concerns, and ended in the disclosure of embarrassing personal information – in the case of King, designed to shame his wife and drive him to suicide. Meanwhile, as Mayer notes, the latest revelations make you wonder why they bothered to use “quaint” measures like search warrants and subpoenas to get records from AP and Fox News’ James Rosen: These kinds of dragnets must make keeping tabs on the media so much easier than when Richard Nixon was trying.
All that makes Walsh want to scream, but she’s not sure how much to scream about it all. For one thing, she might look foolish:
On Thursday night the National Journal released a poll showing that 85 percent of those surveyed believed it was “likely” that their “communications history, like phone calls, e-mails, and Internet use,” was “available for businesses, government, individuals, and other groups to access without your consent.” The steady drip, drip, drip of detail about our ever-expanding national security state has led all of us to protect ourselves a little with a kind of tired cynicism about it.
Yes, protect yourself with tired cynicism. It’s the American way, and appropriate to the times, or, alternatively, try this:
I think there’s more to the indifference, even by a lot of liberals, to this latest news than just saying “it’s okay when our guy does it.” Partly, we blame ourselves. Probably every one of us has thought from time to time about how exposed we all are, from our cellphones to email to the Internet “cloud” to all of social media – and then we go about our business using all of it because it’s all so damn awesome. And so, on some level, we feel partly culpable. We always knew, or suspected, all of this was possible – and went on doing it anyway.
We know our cellphone signal lets us be tracked, which sometimes seems creepy, but seems excellent when you can activate “Find My Phone” to locate your iPhone in the cab where you dropped it last night, or find the best Japanese restaurant near your current location on Yelp. We all scream when Facebook changes its privacy settings without notice – but very few of us close our accounts in protest. We are tweeting our outrage from our Sprint smartphones, Googling to find out whether Sen. Obama really flip-flopped and voted to authorize the way the Bush administration was using FISA in 2008 (he did), then G-chatting with our editors about when we’re filing our stories on all of it.
Technology is so seductive, and our whole world, as we know it, is now our gizmos and how we use them. We can’t go back.
So, is this a scandal? Is this Obama’s scandal? Walsh says no:
There’s a strong Calvinist impulse in the American psyche. So often, Americans blame themselves for their troubles. If I worked harder, maybe I wouldn’t have lost my job. I should have stayed in school. If I hadn’t gotten so drunk, I wouldn’t have been date-raped. If I wasn’t strutting all over social media like a strumpet – and so tied to my iPhone, addicted to my email – they wouldn’t have so much data on me. We shouldn’t have walked down that dark data alley; it’s not like we weren’t warned.
It’s our scandal. Obama asked us if we want to talk about it. It seems we’re not sure.