Freeman

FEATURE

The Death of Privacy

JANUARY 04, 2013 by FAISAL MOGHUL

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!

—William Pitt, Earl of Chatham (1763)
 
The history of colonial America is replete with incidents of abominable abuse of power by agents of the Crown. One of the most effective means of oppressing the colonies was through writs of assistance, commonly known as general warrants, which gave British officials carte blanche to invade private homes and businesses in search of contraband and to seize property with absolute impunity. 
 
James Otis, a Boston lawyer, believed general warrants to be a violation of hallowed natural law principles enshrined in the Magna Carta. Otis’s stirring denunciations of the Crown’s overreach launched him to prominence. He regarded general warrants as the “worst instruments of arbitrary power” because they placed the “liberty of every man in the hands of every petty officer” who “may control, imprison, or murder any one within the realm.” Arguing before the Massachusetts Superior Court in 1761, Otis’s articulation of this systemic despotism established the ideological origins of the Fourth Amendment to the United States Constitution. “A man's house is his castle;” Otis wrote, 
 
[A]nd whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. 
 
Widespread resistance to these reviled instruments of royal tyranny became one of the embers that sparked the Revolutionary War. Of course, the revolution culminated in the codification of the Fourth Amendment. The Bill of Rights stood as an enduring rebuke to the Crown’s overzealous surveillance during colonial times. That is, against the Crown’s principle of general suspicion, the Founding Fathers inserted this provision in the Bill of Rights to prevent history from repeating itself. If a man’s home is his castle, then the Fourth Amendment is the mortar binding each brick, making one’s home an inviolable bulwark against the prying eyes and ears of the government.
 
The Fourth Amendment embodies a fundamental truth and the chief characteristic distinguishing a free society from a tyrannical police state. An individual’s right to privacy and freedom from arbitrary invasions cannot be infringed, unless probable cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found” (Ornelas v. United States, 517 U.S. 690, 696, 1996). 
 
After having successfully prosecuted Nazi war criminals at Nuremberg, former U.S. Supreme Court Justice Robert Jackson eloquently reaffirmed the importance of this safeguard against unbridled governmental intrusion: 
 
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police (Brinegar v. United States, 338 U.S. 160, 180–181, 1949). 
 
And then came Richard Nixon’s “War on Drugs.”
 

From Public Safety to National Security

 
By blaming all of America’s problems on drugs, Nixon’s “tough on crime” rhetoric was portrayed as a necessary step to rid society of drug crimes, just as agents of the Crown sought to justify their abuse of general warrants under the guise of rooting out smugglers of tea and molasses. 
 
But the hardline policies of Nixon’s “law and order” administration, far from being elixirs in terms of stopping drug use or crimes, initiated the process of slowly but inexorably eroding the Fourth Amendment over the course of the next 50 years. From increased canine searches at “drug” checkpoints, to militarized SWAT team raids of homes of “suspected” drug dealers, a man’s castle was seen as a rampart to be taken down by the State. From vague drug-courier profiles that allow law enforcement to target racial minorities, to the malicious application of asset forfeiture laws in which officials arbitrarily confiscate the life savings of the innocent, the War on Drugs has turned out to be a war on citizens’ persons and property.
 
But if the War on Drugs was an erosion of the Fourth Amendment, the “War on Terror” sounded its death knell.
 
The National Security Agency (NSA), with its warrantless domestic spying program has turned America into the most surveilled society in history, eclipsing conditions of East Germans under the Stasi. Two high-profile NSA whistleblowers, Thomas Drake and William Binney, have revealed the extent of the collateral damage to our rights from the surveillance dragnet. In their own words, the government is illegally monitoring (in real time) activities not tethered to any suspicious or illegal conduct—for example, phone calls, purchases, emails, text messages, Internet searches, social media communications, health information, employment histories, and travel and student records—and creating dossiers on everyone (even senators, congressmen, and decorated generals).
 
The twin wars on drugs and terror have coalesced to re-enact the same state of generalized suspicion which, both historically and practically, enabled a Soviet-style police state to emerge. Such blatant disregard for a citizen’s privacy, person, and property is a throwback to the conditions the American Founders rebelled against. Likewise, the surveillance state is a violation of the same natural law principles enshrined in the Magna Carta, which James Otis so eloquently defended. 
 

From Man’s Castle to “Turnkey Totalitarian State” 

 
More than thirty years ago, Senator Frank Church, the chairman of the Church Committee, after investigating the widespread abuses perpetrated by the FBI under the secretive and illegal COINTELPRO, forewarned the nation of the dangers of forsaking essential liberties for temporary safety:   
 
[The NSA's]  capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.  [If a dictator ever took over, the N.S.A.] could enable it to impose total tyranny, and there would be no way to fight back.
 
Arguably, this remorseless modern-day engine of surveillance has been turned against the American people. The purpose of this widespread data mining is not to ferret out terrorist or criminal activity, as we were first told, but to neutralize any dissent and political opposition to the powers that be. William Binney, himself a target for speaking out against the illegal spying on the American people, explains how it works: “If you ever get on their enemies list, like Petraeus did, then you can be drawn into that surveillance.” In such a scenario, Binney adds, the stored information on that individual—and remember, the NSA collects vast amounts of data on virtually everyone—will be used to target, blackmail, or intimidate that person.  
 
One high-level NSA bureaucrat, Thomas Drake, who was charged under the Espionage Act for exposing the illegal eavesdropping (the case ended in an eventual misdemeanor plea bargain), illustrates the dangers of an unchecked surveillance state. Allow me to quote Drake at length: 
 
People don’t realize the extent to which we’re surveilled in many, many ways. The extent to which vast amounts of our transactional data in all forms—electronic forms, your emails, your tweets, bank records and everything else—are all subject or suspect in terms of surveillance. It raises the specter of the rise of so-called “soft tyranny.” It raises the specter of you being automatically suspicious until you prove that you’re not; the specter of a universal and persistent wiretap on every single person [ . . . ] what happens if they don’t like you? What if you speak ill will against the government? What if you say something they consider disloyal? . . . 
 
Our security has become our state religion, you don’t question it. And if you question it—your loyalty is questioned.
 
Speaking truth to power is very dangerous. The power elites, those in charge, don’t like dirty linen being aired. They don’t like skeletons in the closet being seen. Not only do they object to it, they decide to turn it into criminal activity. Remember, my whistle blowing was criminalized by my own government. 
 
After years of government service, Thomas Drake now works at an Apple store. When society descends into collective insanity, when the apathetic masses fail to realize the dreaded consequences of empowering the all-powerful state with a blank check drawn against their own civil liberties, then the only people with the courage to speak truth to power are demonized in the most diabolical ways.  
 

The Death of Privacy and the Technologies of Control 

 
“It would be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which make the defense of the nation worthwhile” (U.S. v. Robel, 389 U.S. 258, 264, 1967).
 
The most common, and perhaps most deceptive, argument marshaled in favor of government spying is that if people aren’t doing anything "wrong," then they have nothing to worry about. This "not-doing-anything-wrong" argument is a classic red herring, for if an individual is not doing anything wrong, then the government has no business spying on that person in the first place. This is exactly what the Fourth Amendment was designed to prevent—a state of total generalized suspicion where everyone is guilty until proven innocent. William Binney also refutes this argument: “The problem is, if they think they’re not doing anything that’s wrong, they don’t get to define that. The central government does.” In other words, one’s subjective opinion of right and wrong is irrelevant; the government’s interpretation governs.   
 
Apologists for mass government spying also typically invoke the "necessary evil" doctrine—an old Machiavellian ruse—to justify this activity. They argue that illegally eavesdropping on the populace, while not good in itself, is necessary to counter the existential threat terrorism poses. They claim that the methods of modern-day terrorism are brutal and unconventional. Terrorists seek to inflict mass casualties through horrific means; terrorism's nature is irrational, perpetrated by individuals who hold no fear of death in destroying others; its form is impenetrable, consisting of a shadowy network spread across the globe. The danger is ever present, threatening to strike anywhere, anytime. Consequently, the government must exercise “all necessary means” to protect its citizens.  
 
Such an argument, while tempting for the unaware, suffers from historical amnesia. During times of emergency, the instinct of self-preservation naturally impels us to seek the direction of the powers that claim to protect us. The omnipresent fear of the unknown predisposes us to trust the government that assures security conditioned on an absolute grant of what John Locke calls “undoubted prerogative.” The constant, unchanging mantra of the power elite is "trust us, and we will protect you from the barbarians at the gate." The demand seems reasonable, its logic impeccable. Destabilized by our collective vulnerability and driven by the spirit of patriotism, our inclination is to comply and surrender our rights.
 
This formula has forever remained the same; so too has the final result, which always stands in stark contrast to the initial promise. For example:
  • President John Adams insisted that the Alien and Sedition Act was essential to protect Americans, but he abused that power by using it to suppress dissent in the press. 
  • President Abraham Lincoln unilaterally suspended the writ of habeas corpus in 1861 under the pretext of fighting the Civil War because “public safety” required it. This order resulted in the imprisonment of “disloyal persons” without any trial. 
  • President Woodrow Wilson advocated for the necessity of the Espionage Act to save American lives, but he only used this law to prosecute thousands of American pacifists who spoke out against American involvement in World War I. 
  • President Franklin D. Roosevelt cited the exigency of World War II to pass Executive Order 90266, which he utilized for the mass internment of thousands of innocent Japanese Americans. 
  • In the aftermath of the 9/11 tragedy, President George W. Bush assured the public that the NSA’s wiretapping program was only directed at identifying terrorists. 

The now-absolute authority that promised to safeguard our liberties uses that same power to subvert what it claims our enemies seek to destroy—our way of life and hard-won freedoms. The Orwellian nature of the scheme—selling "control" in the name of "security"—is slow to crystallize in our collective consciousness. We will in the end grasp the fallacy of rendering blind allegiance to absolute power, but by then it will be too late.

The modus operandi of the current scheme of total surveillance is to streamline and perfect the technologies of controlling society. This blueprint was designed a long time ago, before 9/11 provided the pretext. Elite insider and the founder of the Trilateral Commission, Zbigniew Brzezenski, apprised us of this ultimate goal in his 1968 article “America in the Technetronic Age”: 
 
At the same time, the capacity to assert social and political control over the individual will vastly increase. As I have already noted, it will soon be possible to assert almost continuous surveillance over every citizen and to maintain up-to-date, complete files, containing even most personal information about the health or personal behaviour of the citizen, in addition to more customary data. These files will be subject to instantaneous retrieval by the authorities [emphasis added]. 
 
More than two centuries after the Founding Fathers risked death in opposing the king’s general warrants, we have come full circle, and the executive not only illegally spies on everyone, but also wields secretive “kill lists” and “enemy lists.”  
 
A man’s home is no longer his castle, and we are all poorer for it. 
 

ASSOCIATED ISSUE

January/February 2013

ABOUT

FAISAL MOGHUL

Faisal Moghul is a Washington, D.C.-based attorney. 

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