Orwell Was Wrong

By Robert H.

Surveillance is not the cornerstone of a police state.

1984 is a great book, but it has done almost as much harm as good to the English speaking world.  Our greatest, most definitive account of a modern tyranny is written about an authoritarian state that never existed by a man who had never lived in one (unless you count Burma, where he was an oppressor).  Worse, a meditation on what authoritarianism and cults of personality do to the soul and the mind is read as a sort of blueprint for the perfect police state, a how-to guide.  And the end result is that we think the improbable world of 1984 is what tyranny is like, and judge ourselves by that standard.

Here's the problem: the ultimate concern of the state in 1984 is the soul of its citizens.  The elites don't want to neutralize Winston as a threat or as something objectionable in and of itself, they don't want to use him as slave labor, they want to convert him.  So they spend a fortune monitoring him, testing him, learning his weaknesses and ambitions, and finally breaking and brainwashing him.  

Actual police states could care less about identifying or converting their enemies.  That's why they are so awful.  To a tyrant, possible enemies are to be crushed or used and who cares who gets in the way.  Tyrannies make use of surveillance, but it isn't necessary because it's not necessary to only get the right man.  Informer rats someone out, arrest that someone.  Arrest their family too, why not?  The important thing is that we, the leaders, can do what we want and they, the suspected, can suffer for it.  Police states invade your privacy without due process not because monitoring you is the lynchpin of tyranny, but because they don't care about you privacy rights or due process.  Not caring about you or your rights -- that's the police state.  It's the polar opposite of a state so fascinated with you it longs to observe and convert you.

But that isn't what 1984 told us, so we all have a bug up our butt about the state observing us, even when it doesn't violate our privacy.  For example, streets and sidewalks are not private places where you should feel free from observation.  But whenever the government installs cameras to monitor these places, people go crazy and start complaining about big brother.  

This is on my mind because everyone is freaking out about the NSA (try a google news search for NSA and Orwellian), but very few people are freaking out about, say, the casual brutality with which we treat our prisoners (did you know that thousands of California prisoners are on hunger strike right now?).  Top heavy, bureaucratic programs designed to collect arguably public information with insufficient judicial oversight are not the hallmark of a police state.  Marginalizing a whole class of citizens, writing them off as people whose hopes and feelings and rights matter, and brutalizing them is.   

As an aside, the best look at the modern police state isn't 1984, it's The Gulag Archipelago by Alexander Solzhenitsyn.  It has a lot to recommend it over 1984: Solzhenitsyn is a better writer, his subject is real, and he had personally suffered at its hands.  There is a probably true story in that book about a woman whose husband was disappeared, so she went to the police station to ask after him.  The cops were short on their arrest quota, so when she came in she (and presumably everyone else that day) was arrested, tortured, sentenced for some made-up crime (anti-soviet activities?), and converted into a slave laborer.  Again, that's a police state. No word yet if Stalin also spied on her Facebook photos.

Still Banging my Drum

By Robert H.

Kevin Drum asks and answers a question.

[I]t's possible, even likely, that these professionals aren't abusing the data they've collected. Not yet, anyway. But does Obama really think that a government that collects this kind of stuff won't abuse it eventually? That's vanishingly unlikely.

Drum wants to know what Obama really
thinks and when he really thought it.

 That strikes me as an odd assertion for three reasons:

1. You'd think, with that degree of certainty, that Drum is thinking about some particular examples.  But I know a lot of history and I can't think of any.  There have been lots and lots and lots of governments that collected information on their people *and* abused that information, but normally they go hand and hand.  It's not like the communists in Russia created the Cheka, it gathered lots of information about people, and over time its resolve weakened and it started using the info to aid in torturing and imprisoning innocent Russians.  It tortured and imprisoned them right out of the gate.  Just so, it's not like the FBI got the power to wire tap and then used it responsibly for decades before ultimately backsliding.  It was bugging political dissidents from early in its history.

On the flip side, you can think of intelligence gathering operations that have been going on for a while without any abuse scandals.  Just off the top of my head, ECHELON has been targeting foreigners since before PRISM was a glint in some spook's eye, and as far as I know it has never been credibly accused of abusing its power to go after Americans.

2. I think it's just obviously wrong.  As I tried to make clear in my last post, simply keeping the government from gathering information is our first and weakest line of defense when it comes to keeping the government from abusing that information, so the government getting the information does not mean that the war is lost and abuses are right around the corner.   In America, even when the government can collect info in secret, most of the things it does to us -- tax us, seize our property, imprison us -- happen openly and can be challenged in court, where secret information gathered without due process can be disallowed (the exclusionary rule) or, at least, exposed.  The scary stuff is the supreme court making loop holes in the exclusionary rule or congress letting people be convicted with secret evidence or the states secret privilege letting abusive government actors avoid court.  The least scary stuff is the mere fact that the government is gathering information (duh, of course they are.  They have been for decades).  I'll say it again: the government gathering secrets is not as scary as the government using secrets, which is not as scary as the government using secrets in secret.

3.  The government is probably not doing anything illegal with these programs.   So I think it is a bit brazen to claim that illegal or unconstitutional abuses are a natural follow up.

***

So yeah, my point is A. If you don't think the government is abusing these programs, it's not inevitable that it will, B. The news of this week shouldn't adjust anyone's priorities.  The government gathering information is not nearly as scary as lots of the assaults on due process we already knew were happening. The key to surviving the information age with our liberties intact is not going to be locking down the flow of information to the government (or to anywhere else, for that matter.  Remember, the government isn't even invading our privacy with these programs, it's invading the privacy of companies we merrily gave access to our private information without a second thought.  Privacy is dying at our hands, not government's, and it's futile to imagine a world where we freely distribute and share our secrets but the government politely looks the otherway).  Rather, preserving our liberties will depend on 1. Maintaining (and expanding) a robust exclusionary rule for private information gathered without probable cause, while also expanding the definition of privacy to be more along the lines of "the stuff we work really hard to keep secret" as opposed to "the stuff, if there is any, we can actually keep secret," and 2. maintaining (and expanding) our ability to challenge government takings and restraints on speech in open court.

Big Brother Imprisoning You is Worse than Big Brother Watching You

By Robert H.

So this week we learned the government is gathering a lot of info about you without the usual procedures you jump through to get a search warrant (see links below), and people are freaking out.  But this ignores an important fact: search warrants themselves are really easy to get.  Search warrants aren't important because they make it hard for the police to search your house; they are important because they make it hard for the police to send you to jail.

Let's look at two attempts by the government to get information about you:

1. A cop goes to a judge and says a reliable informant he trusts promised you were a drug dealer.  He asks for a warrant to search your home.  The judge, inevitably, grants it.

2. A cop avers to the US foreign intelligence surveillance court that he needs meta data Verizon has about your calls, or searches through PRISM data in a way designed to avoid returning data about American citizens but which, in this instance, does return information about you.

To me, the procedure in one does not look much more rigorous than two, at least in terms of judicial oversight.  A cop trying to get an abusive search warrant just has to make up the existence of a reliable informant and, bam, a warrant is issued based on the testimony of "reliable informant" Lies McFartWhistle.

Lies McFartWhistle seen here (Lady McFartWhistle not pictured).

But now compare these two situations:

1. A cop made up the existence of a "reliable informant" to get a search warrant to your house, where he found drugs.  This comes out at trial after the warrant is examined and the cop questioned by the defense, the Court rules both that there was no probable cause for the search and that the officer did not act in good faith, and all the evidence springing from the search is ruled inadmissible.  Cops can't tell the jury they found drugs in your place; you go free.

2. A cop lies to get an FISC warrant and gathers data demonstrating you are a terrorist.  This data is then presented against you at trial. Because FISC warrants are secret, you cannot see the warrant or explore the reasons it was granted.  You go to jail.

Get my point?  It's very terrible when the government learns your private information and all, but it is really REALLY terrible when the government uses that private information to convict you of a crime.  Because of that, our number one safeguard against government intrusion into our privacy isn't magistrates issuing warrants -- they do so based on perfunctory and routine affidavits -- it is judges excluding evidence that wasn't gathered with probable cause.

In other words, the most important thing when it comes to the government invading your privacy isn't stopping the invasion itself, it is keeping the government from using the information they got to hurt you.  And that is why the use of secret evidence and secret warrants in criminal trials are and always have been the biggest threat to our way of life and to our privacy that has emerged in the war on terror.  And that's even if you include "terrorism" as something that has emerged in the war on terror.

So the new abuses that are being reported are bad, but you shouldn't take your eye off the ball: the real victims aren't we whose cell phone meta data is insecure, it is the terrorist being convicted or the immigrant being deported based on secret evidence approved by secret means.  It's not the government gathering secrets we should fear; it's the government using them.