The NSA Scandal Is All That: A Polite Rebuttal to Marc Ambinder

The backlash against the surveillance state is not overblown.
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My former colleague Marc Ambinder is an honest, well-sourced reporter who has done his utmost to understand NSA surveillance and the controversy that surrounds it. His explanatory journalism is always informative, and it's useful to watch him thinking through the implications of his reporting, even though -- or perhaps especially because -- he and I have such different attitudes toward government. His latest is an intriguing devil's advocate exercise: one post makes the case that "the NSA scandal ain't all that," while another lays out "4 reasons why the NSA scandal is troubling."

They're both worth your while.

I'd like to persuade him that the case for the NSA scandal being overblown isn't at all compelling. And I hope he'll push back by telling me where he thinks my counterarguments go wrong. Hopefully we'll all learn something. 

Let's begin where he does:

What NSA does with the metadata it collects on Americans is orders of magnitude less intrusive that what other government agencies do with what they collect, than what companies do with what we give them voluntarily and without our knowledge, or what political campaigns profess to know about you buying data you did not intend for them to see.

I see five problems with this argument.

1. This presumes that we know everything that the NSA does with the metadata it collects on Americans. Why? Perhaps it does things far more intrusive than we realize. That has turned out to be true over and over again in recent years. One cause for concern is that the NSA doesn't believe Americans have any right to know what it is doing, regardless of how intrusive it is. So long as that's true we can never know how intrusive NSA activities are, or will be a year out.

2. It may be that Americans are appropriately worried about the NSA and insufficiently worried about the information other people collect -- the fact that there are threats to privacy we ought to worry about more in no way demonstrates that we ought to worry about NSA surveillance less.

3. While other entities collect lots of sensitive data, the NSA is hoovering up data from everywhere, gathering it all together inside one institution, and marshaling software that permits it to be searched and analyzed with unprecedented sophistication, or stored indefinitely.

4. Abuses by other entities can be challenged in court. The NSA invokes standing and the state secrets privilege to shield itself from lawsuits.

5. Intrusiveness isn't the only relevant metric to consider here -- degree of violation is important too. I permit my doctor to touch me in maximally intrusive ways without feeling violated, because it is voluntary. If a priest tried to touch the same parts of me, but less intrusively, I would feel much more violated, largely because I wouldn't have consented to the act. Wisely or stupidly, Americans give their private information to Google voluntarily, and for that reason, they don't feel violated when Google scans it to sell them ads, or whatever. The NSA takes their data without their consent, and if they had any choice in the matter, they wouldn't consent. 

It does matter that Americans have no way of knowing whether their number popped up during an analyst's call-chaining session. The daily flow of their lives does not intersect with the NSA's use of the data, so the only mechanism that connects NSA metadata collection with the "chilling" of free speech is the unreasonable expectation that it will, or that it might. Fear itself, in other words, is the biggest threat to our freedoms.

The NSA itself, and surveillance agencies all over the world, have long and well-documented histories of serious abuses. It may still be unlikely that the NSA's use of private data will ever affect, say, a Heathcliff Huxtable and his family, or the folks that gather at Cheers, or most Americans. But it is reasonable to suspect that journalists, or political dissidents, or ethnic minorities might find their speech chilled or their rights abused. To point out that the average person realistically has nothing to fear misunderstands that, while some abusive surveillance states, like the one run by the Stasi, affect almost everyone, others, including a bygone surveillance apparatus in the United States, does great harm by abusing a very small number of people.

Since it is hard to know in advance who the unlucky ones will be, it isn't irrational for many people to feel the chilling effect who won't ever themselves be subject to abuse. Who knows what group will be suspect after the next terrorist attack? America's Chechen community only recently found how quickly a group can find itself unexpectedly targeted by the national-security state. FBI Director Robert Mueller implied that NSA data collection led the FBI to Ibragim Todashev, who they subsequently shot and killed under circumstances that still haven't been explained.

The "privacy rights" that are being violated are very hard to describe in tangible terms. By comparison, when a person is stopped and frisked for no reason other than that he is black -- well, I've just described the rights violation and need not say more.

Stop and frisk is itself a serious abuse of civil liberties, and I don't think its victims have suffered abuses less serious than NSA abuses. At the same time, it conceivable that a military man would feel less violated being stopped and frisked because of his race than he would upon discovering that an NSA employee had been listening in when he was talking dirty to his wife, and sharing a time-stamped recording of the call so that other NSA employees could get in on the fun. It's easy to imagine a Muslim American who'd prefer being stopped and frisked to knowing that, somewhere on an NSA server, there is a permanently stored email that he sent to his family in Yemen in the hours after the Boston bombing that says, "I can't condone what those boys did, but I understand their rage at drone strikes that kill Muslim children, and I confess I share that rage." Marc, if you were a Muslim in NSA-era America, would you send that email? And if you were Senator Ron Wyden (or his wife), wouldn't a small part of you think back on everything you've ever sent by email, and assess how damaging or embarrassing it could be if it came out?

I can succinctly describe the privacy rights being violated. The Fourth Amendment is supposed to guarantee that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Yet Americans are being deprived of security in their papers and effects by the seizure of their private communications without probable cause or an individualized warrant. Admittedly, the NSA isn't the only problem here. It is perpetrating the abuses, but it's been enabled by out-of-date Supreme Court jurisprudence and a flawed "reasonable expectation" test.

The disinclination of critics to articulate the actual harm done by NSA collection, and the inclination to assume facts not in evidence and the worst possible motivations behind those facts, suggests that the scandal is being fed by (real but) disembodied outrage. And this has warped public opinion.

Critics of the NSA are not, in fact, assuming the worst possible motivations. Glenn Greenwald, perhaps its most staunch critic, is not alleging that the Obama Administration is attempting to seize permanent power in a coup, or to blackmail its political opponents into leaving Obamacare alone. The ACLU is not asserting that NSA analysts are nefarious people intent on abusing their fellow Americans. The Electronic Frontier Foundation has not asserted that the worst case scenario for abusing NSA data is already being realized. And in my own work, I've made it clear -- as have many others -- that serious abuses need not spring from malign motives. 

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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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