Domestic Surveillance: When Everything is Illegal

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Following the recent revelations about the National Security Agency surveilling American citizens, we need to examine the impact of these programs in the context of our nation's laws and propensity for abuse going forward.

Submitted: June 16, 2013

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Submitted: June 16, 2013



In the wake of Edward Snowden’s bombshell revelations regarding the extent to which we, the American people, are the subjects of massive domestic surveillance by the National Security Agency, a shocking question seems to have crystallized in the minds of many:  Why does it matter?  Or phrased differently, a question most have heard from friends or family:

“If you don’t have anything to hide, what’s the big deal?”

Let me see if I can address this question.  Here is why it matters, and indeed, is a very big deal.

The government is collecting, as a matter of course your phone records and associated metadata.  So this means they know who everyone is that you call, or who call you.  In the case of cell phone records they also know the location you call from, and the location of the individual receiving the call and vice versa.  Pattern based analysis of this data can very quickly and effectively establish a very complete picture of your daily life.

So that’s still not enough to give you pause?  Let’s now add financial transaction data, which is also turned over as a matter of course.  Now they know everywhere you spend your money, the amounts spent, and the timing of your purchases, now let’s just combine those two databases (actually countless databases, but for the purposes of this article, we’ll call each area a single “database”), and now we know who you call, when you call them, where both of you are, and where money is spent along those travel routes.  Stopping at the liquor store?  $45 was an awful lot to spend on alcohol, isn’t it?  And you do that trip and spend that amount twice a week?  Clearly an alcoholic.

Not creepy enough for you yet?  Let’s add in the content of your email and text messages.  Ah, now this one should give you pause. 

Not good enough?  Let’s add in the websites you visit, and how long you stay at each.  Throw in all the Google or Yahoo searches you’ve ever done.  Starting to feel like this is a bit invasive?  This is just the beginning.

The generous byproduct of a fulltime legislature at the national, state and local levels is an infinite number of legal statutes, both civil and criminal that is literally impossible to keep up with.  Even for the authorities tasked with enforcing them.  In fact, the total number cannot, and has never been calculated.  The only thing that those who study this know is that the number of criminal statutes in the U.S. grows exponentially every year, with outdated laws rarely actually leaving the books. 

In the U.S., currently there are roughly 4,500 federal criminal statutes, and when you include federal regulations that carry criminal penalties, that number grows to anywhere between 30,000 and 300,000.  After literally decades of trying to find the answer to the question of how many laws there are on the books under which an American citizen can be indicted, there has never been a definitive study that has been able to arrive at a number.

According to John Baker, a Louisiana State University law professor who undertook one such study, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.  That is not an exaggeration.”

Add to that the previously mentioned state and local statutes and regulations, and there is almost literally no individual who hasn’t committed countless legal transgressions, knowingly or unknowingly.

Do you see where I’m going with this?

When we have a government that is vacuuming up all of our data, telephone records and any other database they can get their hands on, they are collecting evidence and proof.  There is no one that they can’t prosecute if they choose to do so.  Obscenity laws alone could jail a healthy cross section of the male populace.  Prosecutors no longer have to provide first the evidence of a crime.  They find the suspicious person; the target that they or law enforcement have deemed a public enemy, and then find which of those countless statutes they will be able to charge them with.

In fact, a favorite game of law clerks has often been to have one clerk name a random politician, celebrity or other popular figure, and the other has to come up with something they could possibly be indicted for.

Are you still alright with the government having access to all of your private information?

If so, let’s go ahead and add health and medical records to the pot.  With the recent second amendment battles that raged through the country in response to the Sandy Hook shooting in Connecticut, many states responded by allowing greater access to medical records for the background checks required to purchase firearms.  In many states, this took a rather oppressive turn when those who had been diagnosed with fairly common mental issues also had their guns seized.  In many cases this included those who had been diagnosed as children, but suffered no lasting symptoms into adulthood.

The Affordable Care Act is here, and health and medical information required to sign up for health insurance through the government insurance exchanges will now be part of the mass of data captured and kept by the US government.

While we’re here, let’s go ahead and add gun purchase and ownership records.  Is that something you’re okay with the government having and tracking, particularly given all the other data they’re collecting?

The propensity of law enforcement and intelligence agencies to overreach their constitutionally mandated guidelines is ubiquitous and well documented, and many will say that this is just another example of that tendency.

Edward Snowden, in his first recorded interview following the stories in the Washington Post and the Guardian explained his greatest fear regarding the outcome of his revelations:

"The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They'll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won't be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests."

"And the months ahead, the years ahead it's only going to get worse until eventually there will be a time where policies will change because the only thing that restricts the activities of the surveillance state is policy. Even our agreements with other sovereign governments, we consider that to be a stipulation of policy rather than a stipulation of law. And because of that a new leader will be elected, they'll find the switch, say that 'Because of the crisis, because of the dangers we face in the world, some new and unpredicted threat, we need more authority, we need more power.' And there will be nothing the people can do at that point to oppose it. And it will be turnkey tyranny."

While I reserve judgment on Edward Snowden, on his motives and end goal, I find his explanations and reasoning to be well founded and thought out.  How many of us have already transitioned from outrage at the disclosure and admission on the part of the NSA to a sense of futility knowing that it will likely never change?

Is this the new normal?  Are we closer to 1984 than we are to 2013?  The destination of our current path is a clear one.  The government is amassing staggering amounts of personal data on its American citizenry.  Data rarely goes unused, and yet that is what we are expected to believe.  One of the most touted and cheered aspects of the Patriot Act was the intelligence sharing that was not only allowed under the act, but mandated.  Where will the use and sharing of the data gathered eventually stop?  Will it be accessible to politicians, state and local police departments?

During a speech at the GigaOM Structure Data conference on March 20th, Gus Hunt, the Chief Technology Officer of the CIA, said this:

"Technology in this world is moving faster than government or law can keep up," he said. "It's moving faster I would argue than you can keep up: You should be asking the question of what are your rights and who owns your data."

Was the CTO of one of our most powerful and secretive intelligence agencies warning us about our own government?  It almost seems that way.

One of the common elements to humans and societies is the fact that rarely are we able to keep ourselves in check.  We tend to require oversight.  Otherwise we push the boundaries of our authority.  So many adages bear this out.  Power corrupts, and absolute power corrupts absolutely.

As the Roman poet Juvenal inquired, “Who will guard the guards themselves?”  Often modernly translated as who will watch the watchers themselves?  Has there ever been a group more worthy of the title of Watcher than the National Security Agency?  I do not dispute the legitimate mission of the National Security Agency.  They are tasked with collecting signals intelligence, with gathering as much information as they can, but we have already seen the target shift from foreign to domestic.  According to several government officials and publications produced by government agencies, the new threat; the overriding threat is no longer attack from abroad.  The greatest current threat is from within.  We are the new target.  Don’t kid yourselves. 

Who will watch the watchers?  We are told that there is oversight.  That these programs operate within a very controlled and prescribed set protocols and procedures.  We’re told to trust the Obama administration and our elected leaders with the so-called oversight.  But who watches the watchers?  We, the American people are the administration’s oversight. 

We are a nation of laws.  That has been a guiding principle of our country and a differentiator from much of the world.  But there is a natural outflow of our legislative process, and we have already far surpassed the ability of any individual, company or government to even be able to catalog and keep up with them.  We have given every prosecutor an endless treasure trove of charges that can be brought upon anyone they see fit to indict.

Now, the National Security Agency is collecting evidence against every American, and storing it indefinitely.  Houston, I think we have a problem...

© Copyright 2019 RossMonnett. All rights reserved.

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