Most of us are law abiding and not law fearing. By that I mean that people follow the law because they think it is reasonable to do so. This is why people stop at stop signs even in remote areas where there is no one around and they can clearly see that there is no cross traffic. This is also why people (mostly) are truthful about what they say on their tax returns and don’t steal their neighbor’s newspapers and potted plants when they are away.
But people may also people behave in certain ways not because they think the law is worthy of being followed do but because they feel they are being closely monitored and will be punished harshly if they transgress. A society that operates on such principles is an authoritarian one that is prone to instability.
Societies are a mix of the two types but function most smoothly when most people are law abiding. What makes it so? I think the issue is one of transparency and consent. All laws are to some extent arbitrary. Why is the speed limit 35 mph and not 40 mph? Or 37 mph? It is hard to justify any specific number. The reason we go along with whatever number is posted is that we realize that there should be some limit at least in some areas. If the process by which these laws are arrived at is reasonably transparent and if the result seems reasonable, we go along with it, even if we grumble.
But when the government decides to arrogate to itself the right to make laws in secret based on secret criteria and denies people the information they need to protect themselves, then that system breaks down. The new revelations that the Drug Enforcement Agency has used the NSA communications database to identify potential drug offenders, made up some pretext to stop and search them, and then constructed some bogus story to tell prosecutors and defense attorneys how they arrived at their suspicions to avoid implicating the NSA, has created fresh concerns and brought this issue into sharp focus. Civil liberties advocates have protested because if one is accused of a crime, it is hard to mount a defense if the prosecution’s case is based on a false narrative. There a now reports that the IRS is also getting access to the NSA data and covering it up just the way that the DEA did.
But what about the counter-argument that even if the NSA data were collected ostensibly to foil terrorist plots, since the data now exists anyway, why shouldn’t they be used for foiling non-terrorism crimes? Why let good data go to waste?
This incidental use of technology came up in the interesting discussion in the comments that was generated by my post on red light and speed cameras about how far we could go to stop those offenses. It was pointed out that toll booth data on highways and GPS devices on cars could also be used to identify speeders.
It is undoubtedly true that the more information that the government has about each one of us, the more it is able to prevent and solve crimes, as long as the amount of information it gets is not so large as to make analysis overwhelming. It would undoubtedly help the government if they had all our finger prints, our DNA samples, could enter our houses at will and look through all our things, stop us on the street and search us and our cars, take our computers at random and download the hard drives, or demand that we give them the passwords to all our accounts.
But clearly we want to place some limits on how far it can go. I think we would all agree that those things would be too high a price to pay for the additional security they would purportedly provide. But why are we unwilling to allow them? After all, as the currently popular argument goes, if we have nothing to hide why should we be worried?
The answer is three-fold. One is that we feel that we are entitled to some level of privacy. We all do have something to hide and do not like to feel that every action we take is being monitored. All of us, at least at an instinctive level, know that our private information in the wrong hands can be dangerous. The second is the danger that innocent actions can be misconstrued. The much vaunted information analysts do not always ‘connect the dots’ accurately and we could easily end up being wrongly accused. The third is that this information can be used against us with evil intent. We may be willing to grudgingly concede that the DEA should get the data but we know that it is also possible that people with access to the data can and will use the information it has to intimidate and silence critics by targeting individuals and disrupting their lives, even if those people are engaged in perfectly lawful and constitutional activities.
Why do we know this? Because it has done so in the past, The FBI was notorious for using the information it collected on people this way, long before it had the current capabilities, and it used it in just the way that I am now warning about. The notorious COINTELPRO program collected all manner of information on political activists with the aim of discrediting them. One of the most famous cases was that of Martin Luther King, Jr. And when the existence of the program was revealed, the FBI trotted out the same excuse we now hear and said that it was “protecting national security, preventing violence, and maintaining the existing social and political order.”
Almost all of us have information in our private lives that we would rather not have made public, not because we are criminals or dangerous but because it may adversely affect our personal and professional relationships and cause us embarrassment. Such information causes no damage to society but can be used to influence or coerce or intimidate people. By leaking or threatening to reveal emails and other personal information, the government can derail the work of people it wants to silence.
What the NSA revelations tell us is that the government has been secretly amassing enormous power over individuals. When such information is collected and stored, it is inevitable that it will be used improperly. It has done so before and it will do so again. The temptation is just too great. I am certain that with time and more whistleblowers, we will find that the NSA database has already been abused even more than it has already.