By David Simon's Own Logic, NSA Surveillance Should Alarm Him

The creator of The Wire sets out to condemn NSA surveillance alarmists and ends up ensnaring himself.
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David Simon, the creator of The Wire, has taken to his personal website in the last few days to castigate Americans who object to the NSA's massive program of secret surveillance on innocents. His posts are an amalgam of real insight, self-indulgence, and a strange insistence that aspects of drug policing in Baltimore are an "apples to apples" analogue for NSA spying*. "If I sound exasperated with other liberal voices on this issue," Simon writes, "it's because their barricades are in the wrong place, facing the wrong way, defending the wrong moral and legal terrain." ** I'd like to address one of the wrongheaded arguments he offers for that proposition.

Simon writes (emphasis added):

We are comfortable with a certain level of intrusion involving all previous weapons of law enforcement, and even the use of phone metadata as it can be utilized. Why, I wonder. And why has this particular law enforcement intervention -- no less legal as it was proposed to the FISA-court -- engaged the worst fears of many.

The grand scale of the conjured nightmare? Sure, the fear of the massed totalitarian power of a surveillance state gets points for imagination. Mr. Maciej refers to himself as a technologist, and it is his considered opinion that the computer capabilities of the NSA are such that the government has finally created a law enforcement asset so big and dangerous that we dare not lift it, even to a legitimate task. Maybe so. And yet my problem with drawing the line at the technology itself is that it ignores the actual and essential responsibilities of self-governance. It's head-in-the-sand pretending, as if we can simply ask law enforcement to avoid using any of the really sharp and pointy things in its tool chest, rather than ask the government -- our government -- what they are building and why. That is where the hard work of sustaining a democracy must happen. And that is where it isn't happening.  And anything that delays or excuses our delay in addressing the systemic is, I'm sorry, a waste of time and energy.

That "maybe so" is quite a concession! Maybe we've built a tool so powerful and dangerous that we dare not use it -- but Simon doesn't want to draw a line anyway, because preemptively deciding not to use the dangerous technology would be an evasion of ... hard work? This seems a bit like telling a married man high on Ecstacy that he must enter the brothel, because to avoid entering it would be an evasion of the hard work that sustaining a faithful marriage demands. Sometimes the most responsible thing is to foresee and avoid what you can't responsibly handle. 

Simon writes (emphasis added):

Being a technologist, as he puts it, Mr. Maciej's greater point, beyond the secrecy and lack of accountability in the FISA oversight, is that one can't apply the past to the future when one considers the formidable possibilities for human monitoring that this metadata and this level of modern computing offers. Let me stipulate to this, once and for all. I understand the capabilities of the NSA and I concede that this data can be abused and that, certainly, the risks are higher than for previous uses of such data, just as the benefits of utilizing the data are now more advanced because of digital technology's march. But again, all law enforcement capability can be abused: A 9mm on a patrolman's hip can take human life in an unjustifiable manner, a search warrant can be used to plant evidence, informants can be used to manufacture false probable cause, and interrogation rooms can be used to beat on people until they implicate themselves and others. Still, we continue to allow police to arm themselves, use informants for cause, write search warrants and talk to reluctant people in small, windowless and unsupervised rooms.

In other words, abuses of this technology pose higher risks than other technology, "but again," technology posing lower risks can also be abused. The argument doesn't lead where Simon thinks.

Says Simon:

At no point in the legal history of the United States have we ever issued a blanket prohibition against the use of a proven, scientifically-sound technology or law enforcement asset because of its imagined possibilities for misuse. There's no precedent for such. The entire construct of our legal system is predicated on allowing that which is done legally, and trying to prohibit or even punish that which is done with the same methodologies illegally.

The technology exists to put a video camera in every home and office in America; or to embed a tracking device in every person. By Simon's logic, we should all be fine with doing so, just as long as the FBI requires a warrant before it can switch on the home cameras or the tracking devices***. Why stop there? How about a lethal capsule in every American that, legally speaking, can only be activated to stop someone who has been designated a terrorist? Surely Simon can conceive of some possible technology that would be more prudently banned outright than exploited. Indeed, he goes on to express deep misgivings about DNA collection of people arrested but never convicted. (He deems that threat greater than NSA spying; ergo, anyone who doesn't is contemptible.) 

Simon does, at least, grant that present oversight of the NSA is insufficient:

The FISA process and its court are so completely shrouded in unaccountable secrecy that it is an unworkable apparatus for democracy. Independent review and oversight, with teeth, are the necessity here. And that oversight needs to have a healthy number of knowledgeable civilians -- duly vetted for national security -- who are professionals in the business of maintaining constitutional guarantees and civil liberties, and whose sole purpose in the process is to address those ideals. There needs to a congressional review process that can access the investigative documentation and arguments contained in affidavits for all FISA programming and investigative ventures, just as all decisions of the court need to be available to the vetted members of the intelligence committees. There needs to be periodic reporting -- a general report-card of sorts -- on the degree of civil liberties intrusions undertaken by the FISA process that is available for public review, even if such a document would be necessarily general about methodologies employed. This is the where the barricade ought to be. 

This is the fight to have.

So basically, Simon castigates the people expressing deep worry about NSA surveillance for being alarmists; then argues that the program won't, in fact, be safe, pending lots of checks that don't exist and oversight that is unlikely to be implemented in the foreseeable future. Simon's series is rife with that sort of contradiction. I'll perhaps address more of them in a future post.  

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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