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

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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* Incidentally, how did the invasive wiretaps used by those Baltimore police officers work out? Did listening in on all the payphone calls end the drug trade in the city? Or was the tradeoff something like, government seizes more power to fight problem, but problem doesn't get better?

** It's been awhile since I read Homage to Catalonia, but as I recall, some leftist fighters focused on erecting barricades to stop the fascists; others focused on haranguing fellow leftists about how they weren't fighting the fascists the right way. Of course, the leftists in Spain had substantial disagreements. Whereas Simon, who complains that no one cared about a heavy-handed surveillance state when it only affected poor blacks, seems oblivious to the fact that the leftists going "to the barricades" against the NSA -- Glenn Greenwald, the ACLU, and Marcy Wheeler, say -- have applied the very same principles they're invoking in the NSA case to all sorts of other injustices, and are on board with every critique of civil liberties abuses Simon makes.  

*** Julian Sanchez is worth reading at length here:

...it makes a difference when the acquisition is on a "grand scale." In a 1983 ruling that found no Fourth Amendment violation in the short-term tracking of a single automobile, Justice Rehnquist acknowledged in passing that "dragnet-type law enforcement practices" involving mass tracking might require the Court "to determine whether different constitutional principles may be applicable."

In the far more recent case of United States v. Jones, the court unanimously rejected long term tracking of a vehicle using a GPS device, though on a variety of grounds. Justice Alito's concurrence--whose reasoning was explicitly endorsed by five justices--observed that while short term observation of a vehicle's public travel violated no expectation of privacy, "society's expectation has been that law enforcement agents and others would not--and indeed, in the main, simply could not--secretly monitor and catalogue every single movement of an individual's car for a very long period." Alito suggests that the Court's guiding principle should be the "preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted"--noting that while short term visual tailing and surveillance was surely possible at the time of the Founding, 24-hour monitoring for weeks at a time would not have been. It should go without saying that what would have been impossible at an individual level was simply inconceivable at the level of society as a whole.

This more structural approach, which focuses on preserving an overall balance between state control and citizen autonomy, seems to me more appropriate for evaluating mass surveillance programs such as the NSA's... the crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience--though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster, and the Supreme Court's 7-2 ruling, in Bond v. United States, that the Fourth Amendment prohibits even the squeezing of luggage would be entirely baffling. Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too farin the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who--whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good--would seek to use it against us.