1st Place Essay Contest Winner Undergraduate Category GOVERNMENT SPONSORED BLACKMAIL? Mass Surveillance and the Threat to Personal Privacy Ben Woodfinden
CANADIAN STUDENT REVIEW WINTER 2016 13 dward Snowden is a No. 755 at 227-230 (1976)). Every polarizing figure. Yet even presidential administration since his detractors must concede Franklin Roosevelt’s has made use of Ethat the information he disclosed the state apparatus to spy on political about the surveillance operations opponents (Downs, 2013, June 14). In of the US National Security Agency the early 1970s, a series of scandals (NSA) and other security agencies involving American intelligence worldwide have led to an important agencies shook public trust in the US public discussion on surveillance and government. Between 1968 and 1975, civil liberties in the post-9/11 world. public trust in government dropped from 61% to 36% (Pew Research Centre, 2014). As a result, Congress Snowden’s disclosures have initiated the Church Committee raised a series of important in 1975 to investigate American intelligence gathering in the wake of legal, philosophical, and political these revelations (Senate Historical questions. Office, 1975).
Snowden’s disclosures have The final Church Committee raised a series of important report, published in 1976, revealed legal, philosophical, and political widespread and systematic abuses questions. Do mass surveillance of power (Senate Select Committee, programs actually keep us safer? No. 755 at 16-17 (1976)). On multiple More fundamentally, can we trust occasions, the CIA, FBI, and NSA the government not to misuse the violated the fundamental rights of information it gains through mass peaceful American citizens. One surveillance? In the United States, specific example is worth highlighting. where many of these debates are The founder of the FBI, J. Edgar centered, there is a history of the Hoover, was notoriously unconcerned state misusing the surveillance with violating certain citizens’ powers it has granted to itself. constitutional rights in the name of Historical government surveillance protecting the country against (often in the United States has resulted in imaginary) enemies (Kessler, 2002: blackmail intended to silence dissent. 140). One such imagined enemy Disturbingly, this is also taking place was Martin Luther King. Despite today. overwhelming evidence that he was not a security threat, Hoover ordered extensive surveillance and wiretapping MASS SURVEILLANCE IN THE of King. The surveillance produced UNITED STATES BEFORE 9/11 nothing to suggest that King was a security threat, but it did produce The debate raging around mass evidence of sexual misconduct. This surveillance is not new. The American included a tape of King participating government has been using large- in an orgy in a Washington hotel. scale peacetime surveillance since at Although this information had no least 1919 (Senate Select Committee, relevance to any security operations, a
14 FRASERINSTITUTE.ORG governments use these programs to violate citizens’ basic rights and discredit political opponents then they become a danger to, and not a guardian of, the people they are supposed to protect.
If governments use surveillance programs to violate citizens’ basic rights and discredit political opponents then they become a danger to, and not a guardian of, the people they are supposed to protect.
MASS SURVEILLANCE IN THE POST-9/11 ERA In the aftermath of the Church
J. Edgar Hoover, first Director of the Federal Bureau Committee, Congress established of Investigation. In office March 23, 1935 – May 2, 1972. the Foreign Intelligence Surveillance Wikipedia photo Court (FISC), a special judicial body that had the power to consider letter was sent out to King that requests for secret warrants to spy included copies of the tape shortly on non-US persons acting as foreign before he received the Nobel Prize. agents within US borders. The court The intention was clear: to blackmail was supposed to end the frequent King and either damage his credibility abuses that the Church Committee or force him to resign his position uncovered by introducing a layer of (Kessler, 2002: 144). judicial accountability.
On repeated occasions, surveillance Only weeks after the September 11 operations were not designed to attacks, Congress passed the Patriot simply monitor for suspicious activity. Act, which vastly increased the power Rather, they were intended to collect of American intelligence agencies. information that could be used to Oversight from both Congress and attack the reputation and character the FISC was supposed to ensure of the individuals in question (Senate the law was not misused. However, Select Committee, No. 755 at 221 many suspected that intelligence (1976)). The temptation to use mass agencies abused the law nevertheless surveillance programs to silence (Greenwald, 2013, September 27). and discredit political opponents is an obvious one, and it is one In June of 2013, The Guardian began with a well-documented history. If publishing leaked documents about
CANADIAN STUDENT REVIEW WINTER 2016 15 secret NSA programs. The suspicions historical abuses by agencies such of several critics of surveillance were as the FBI? Documents disclosed by confirmed, including revelations that Snowden suggests that this is the governments have the capacity to case. One document that Snowden collect, store, and analyze almost released through The Guardian from all of our online and electronic October of 2012 suggests that the communications. Furthermore, NSA had been collecting evidence governments have indeed exercised of online sexual activity, such as these abilities. Programs like visits to pornographic websites, by PRISM, Boundless Informant, and six different targets (Ehrenfreund, XKeyscore allow the NSA to collect 2013, November 27). All six men enormous amounts of information were Muslims, and were believed about anyone it deems of interest by the NSA to have been involved directly from the Internet backbone in radicalization efforts. However, (Bauman, 2014: 122-126). Questions none of the six targeted individuals of constitutionality aside, these were accused in the document of programs completely overstep the being involved in terror plots. The intent and scope of the Patriot Act.1 document identifies at least one of them as being a “US Person,” a Does the NSA’s abuse of surveillance significant legal category that would power have any similarities to preclude surveillance overseen by
1 For more information on the scope and constitutionality of the Patriot Act, see Etzioni, 2004.
16 FRASERINSTITUTE.ORG the FISC. The intention of collecting is dulled. Individuals lose the full this information, according to the freedom to speak as they please, document, was to release evidence afraid of sanctions from a government of sexual transgressions online to that does not welcome certain views. discredit and destroy the reputations Thus, in the name of security, these of the individuals in question. programs harm the very freedom they are supposed to protect. As we have seen, this is not without precedent. The FBI under Hoover In his dissenting opinion in Olmstead is the most obvious example of v. U.S, Supreme Court Justice this. Not only has the NSA used Louis Brandeis offered a famous surveillance tools to discredit those formulation on the value of privacy. it deems dangerous, it has also used Brandeis wrote that: those tools to spy on the members The makers of our Constitution of Congress tasked with overseeing undertook to secure conditions NSA programs and funding (Pengelly, favorable to the pursuit of 2014, January 4). While it is unclear happiness. They recognized the how extensive this spying is, the significance of man’s spiritual potential for abuse is evident. Mass nature, of his feelings, and of his surveillance programs are known intellect. They knew that only a to have been used by the NSA to part of the pain, pleasure and blackmail individuals who were satisfactions of life are to be found not involved in planning any terror in material things. They sought to attacks against the United States. protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, The power that mass surveillance as against the Government, the gives to governments creates right to be let alone—the most comprehensive of rights and the a historically verifiable threat to right most valued by civilized men. individuals by creating the potential (Olmstead, 277 U.S. 438 (1928)) for state-sponsored blackmail. From formulating heterodox opinions to character evolution, privacy is a vital component in the development CIVIL LIBERTIES AND MASS of our personal identities. Studies SURVEILLANCE have shown that human behaviour changes substantially when people The power that mass surveillance believe, correctly or incorrectly, that gives to governments creates a they are being watched (Ernest- historically verifiable threat to Jones, Nettle, and Bateson, 2011). individuals by creating the potential There is a reason that we do not for state-sponsored blackmail. But have toilets in the middle of living why is this so dangerous? Put simply, rooms: we naturally value privacy. when governments blackmail their There are things about ourselves, citizens, the potential for dissent from our bodily appearance to the
CANADIAN STUDENT REVIEW WINTER 2016 17 websites we visit to our personal often violate our civil liberties and banking information, that we do not abuse the immense power they want others to know. Regardless of wield to silence dissent and discredit any positive impact this may have opposition. on the behaviour of individuals, we should be wary of attempts by Mass surveillance in the modern governments to influence and change era fundamentally changes our our behaviour. State mandated paternalism reduces the autonomy relationship with the government. of the individual and invites even more government intrusion in the Privacy enables us to have private private lives of citizens. Even if the lives and to do things we may not behaviours of anti-war activists, want others to know about. When we or Martin Luther King, or Islamic lose this sphere of privacy, anything preachers, were questionable or embarrassing or questionable in our unpopular, they should not have personal lives becomes a weapon been used by their government as a that can be used against us. This weapon to silence their speech. It is information can then be used to in the private realm that we can think, silence dissent or opposition, as both write, speak and act away from the the FBI and the NSA have attempted judgement of others. Privacy is thus a to do. Time and time again, security foundational part of what it means to agencies have shown that they be a free individual. cannot be trusted with the sensitive information they collect about Privacy is a foundational part individuals; the temptation to use this of what it means to be a free information is simply too strong. individual. Mass surveillance in the modern era fundamentally changes our relationship with the government One of the major findings of the by creating the potential to destroy Church Committee was that that the private sphere. If we cannot “covert action programs [had] been have privacy, we cannot have used to disrupt the lawful political secrets. What’s worse, those who activities of individual Americans are not willing to give up their and groups and to discredit them, secrets become potential victims using dangerous and degrading of state-sanctioned extortion. The tactics which are abhorrent in a deck is stacked against privacy free and decent society” (Senate either way. From FBI spying on Select Committee, No. 755 at 211 prominent civil rights and anti- (1976)). A 21st century investigation war activists to present-day NSA of the contemporary activities of spying on Islamic preachers, there American intelligence agencies would are too many examples of state- very likely find evidence of similar sponsored blackmail for us to trust wrongdoings. Government agencies that the government will not use
18 FRASERINSTITUTE.ORG the information it collects against dissidents who pose no threat to Ben Woodfinden is a current national security. While surveillance graduate student at Carleton programs are designed to protect University, specializing in Political Philosophy. He graduated from us, ultimately the misuse of the Carleton with a B.A in Political information collected through these Science and History in June programs endangers the very rights 2015. Ben has public policy they are supposed to protect. experience having previously worked for Transport Canada and the Canadian Federation of Independent Business.
REFERENCES Bauman, Zygmunt, Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, and R.B.J. Walker (2014). After Snowden: Rethinking the Impact of Surveillance. International Political Sociology 8 (2): 121-144.
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