6 February 2006

Tap Tap Tap

On NSA Wiretapping

Walking out of Grand Central Station, New Yorkers pass a Hyatt and a Kenneth Cole. The Hyatt is full of tourists. The Kenneth Cole storefront declares, “You’re on a video camera over twenty times a day. Are you dressed for it?”

We’d better be. Those creepy-eyed, ceiling-mounted black domes are ubiquitous in drug stores,retail outlets, and everywhere else. ATMs are outfitted with cameras, as are most major buildings and even some streetlights (although this last is more likely in London than here). Our actions are tracked in a thousand other ways on a daily basis: phone calls are monitored to ensure “quality”; Radio Frequency Identification tracks product placement, sales, and even post-sale usage; and if you buy you rNew York MetroCard with a credit card, the MTA knows exactly when and where you’ve gotten on the train.

Go online and surveillance increases. Amazon knows every book ever purchased by every customer, Apple tracks music libraries against iTunes accounts, and no one quite knows what Google plans to do with the enormous backlog of contextualterms collected from users’ Gmail accounts.

Once this kind ofinformation-gathering becomes a fact of life, it makes sense to make light o fit in an ad. It also becomes easier for the government to justify its own surveillance. Perhaps this is why the New York Times‘s revelation that the NSA,with President Bush’s authorization, has been conducting broad data-mining andwiretapping of American citizens since 2002 has made such a shallow impressionon that same American public.

Of course, voiceshave been raised in opposition: The Times ran several articles suggesting the President’s authorization was illegal, and the New York Review of Books went further, publishing an open letter from Ronald Dworkin, David Cole, and sixteen other legal scholars detailing in specific and complicated terms the ways in which President Bush has overstepped his authority. Arlen Specter called for Congressional hearings, and Democrats eagerly pointed to a poll showing that 88% of Americans say they are concernedby the NSA surveillance. Nat Hentoff declared that President Bush has been“pillaging of the bill of rights.”

Compared to the outcry against domestic surveillance in the 1970s, though, public reaction has been sedate. Little being said today can compare to Senator Frank Church’scharacterization of domestic wiretapping as “the capacity … to make tyrannytotal in America.“The backlash against “the abyss from which there is no return” hurt the NixonAdministration, the NSA and the FBI. There’s hardly anyone who would considerdefending J. Edgar Hoover’s reputation; even Robert Novak has called him a“rogue and a lawbreaker.” These days, there’s more deference: witness the Times,for reasons no one seems able to explain or understand, sitting on the storyfor over a year.

Part of the reasonfor the tepid public response may be that the situation seemed unsurprising,even inevitable—we’ve had enough everyday experience of being watched to assumethat it’s always happening. Politicians may still get worked up about it, butmarketers know that we don’t much mind. Businesses are advised in the LosAngeles Times that tracking customers isn’t a problem: “As long as nobodyuses that information against [consumers], they don’t have any problem as longas it makes the experience better.” And if corporations can collect previouslyprivate information to make our experience better, why can’t the federalgovernment do the same? Although a majority of Americans are concerned aboutthe NSA’s wiretapping, they’re mostly concerned about the possibility of abuse;another poll shows that fifty-eight percent support the wiretapping, aslong as its use is restricted to suspected terrorists—i.e., “as long as nobodyuses that information against them.”


This is thepsychological reality exploited by the Bush Administration. When defendersrationalize the program, they generally start off with some legal obfuscation,and then make a quick pivot: the NSA program is necessary for nationalsecurity; saving lives is worth the cost of curtailing civil liberties; andafter all the government is only looking for terrorists. There may be costsinvolved, but the net social benefit is positive. Wiretapping is good foreverybody.

In other words, goodcitizens want to be watched, because this means the terrorists are beingwatched. Richard Posner told the Washington Post‘s online audiencethat having the NSA listen in on their phones shouldn’t necessarily be a causefor concern:

Are you worriedabout having a conversation of yours (say this conversation) recorded in agovernment database? Suppose that unbeknownst to you your neighbor is a terrorist,and you happen to mention his name in the conversation. A government computerpicks up the name and learning from your conversation where he lives, arrestshim. Would such an episode bother you? If so, why?

Posner’s argumentabout the NSA’s wiretapping is essentially technical: he claims thatdata-mining done by computer can’t be properly called surveillance, and sinceany actual wiretapping is the result of computer-determined “hot” numbers oremails, the eventual surveillance might as well be legal. He may be right,legally speaking: the Foreign Intelligence Surveillance Act was written in1978, when neither dragnets nor data-mining existed in their current forms, andso didn’t need to be outlawed. But Posner supports the same claim as the Bush administration:citizens should happily restrict their rights and submit to being watched,because it’s good for everyone if they do.

So get watched orget terrorized. And Americans accept the terms of the debate. When a group ofanti-war students at UC Santa Cruz was informed that the Pentagon had beentracking their movements, their response was far closer to resignation thansurprise or even outrage. “It doesn’t surprise me because our own universityhas been spying on us since our group was founded,” Josh Sonnenfield, a memberof Students Against War, told the New York Times. “This nation has ahistory of spying on political dissenters.” Sonnenfield may be right on thiscount. At any rate, he certainly assumes that somebody’s watching

Then there’s thereaction of Faye Crosby, a faculty member associated with the UC Santa Cruzstudent group. “It’s a waste of taxpayer money,” she said, “What are we athreat to?” Crosby’s argument makes a certainsense—she’s probably not much of a threat—but the terms she uses are preciselythose the Bush Administration wants. Once you begin to weigh the question inthis way, with “taxpayer money” on one side and the “threat” on the other, theoutcome is swiftly decided. Who wouldn’t spend a few dollars to thwartterrorists?


It’s not so muchthat we need to be watched, though—we just need to assume we’re beingwatched. If the bad guys who want to collapse the Brooklyn Bridgeassume that the NSA is breathing down their necks, it doesn’t matter whetherthis is actually true or not. At least, that’s what the Bush Administration isarguing now—originally, of course, they kept the wiretapping under wraps foryears, ostensibly in order to keep those under surveillance from learning theywere being watched. Now that the program has been disclosed, they need tojustify its continuance in the light of day, and that justification will haveto be for wiretapping that terrorists do generally know about.

To do this, AttorneyGeneral Alberto Gonzales argues that the UnitedStates has a “long tradition of wartime enemysurveillance” that includes the interception and collection of internationalcommunications; Karl Rove claims that “if Al Qaeda is calling someone in America, it isin our national interest to know who they’re calling and why.” And yet itremains unclear exactly who is being listened to and why. The President hassaid that he’ll oppose laws meant to “expose the nature of the program” andGeneral Michael V. Hayden, who ran the NSA at the time of the surveillance’sinception, has left things particularly undefined. Noting that he couldn’t“give details without increasing the danger to Americans,” Hayden said thatsurveillance was limited to communications the NSA has a “reasonable basis tobelieve involve Al Qaeda or one of its affiliates.”

The Bushadministration claims that providing more information—defining this “reasonablebasis,” for example—would endanger Americans, as it would more specificallyinform the terrorists it intends to track that they’re being watched. It’s betterif these individuals believe that the NSA might be listening at any givenmoment. As Hayden has admitted, though, “it’s the nature of intelligence thatmany tips lead nowhere, but you have to go down some blind alleys to find thetips that pay off.” Watching the terrorists will mean often watching innocentcitizens. The Bush Administration doesn’t explain when, or how, or why—justthat it could be happening. If we want the terrorists to feel watched, then weneed to feel the same.

This is dangerouslyclose to asking the American people to be paranoid. To be fair, the Bushadministration hasn’t demanded that the American people fear for their libertyand livelihood at any given moment. The NSA merely suggests that citizensconsider the possibility—when sending an email or making a phone call—thatthey may be watched by their government. But this is okay, since the effectwill be to catch terrorists. This is a mild and diffuse paranoia, but apervasive one.

The effects areevident already. The ACLU, in an ingenious countermove, has filed suit in Manhattan, alleging thatthe NSA has been wiretapping their phones and violating privilegedconversations with legal clients of Middle Eastern origin. The ACLU admits thatthey don’t have any evidence to support their claim, but the likelihood ishigh—once such a program exists, why wouldn’t the ACLU be wiretapped?And if the government doesn’t need special evidence to spy on citizens, whyshould citizens need special evidence to sue in response? Remember: it’s not thatthe NSA will be watching, just that it’s possible. So, as Kenneth Colewould tell you: speak clearly. Wear socks. Smile.

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