“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” – Brandeis’ dissent in Olmstead v. U.S., 277 U.S. 438 (1928)
A common reaction to the National Security Administration’s mass surveillance activities is the statement that as long as you have done nothing “wrong,” there is no reason to be concerned. This assumes we can trust the government and that its notion of reprehensible behavior will not change over time. Yet, history is replete with events justifying a healthy dose of distrust towards the government. Notorious examples in recent U.S. history include the FBI spying on Martin Luther King Jr., and the Nixon Administration wiretapping its political opponents. The fact that the constitutions of most democratic nations protect the basic freedoms and liberties of their citizens suggests a shared belief that blind trust in the government is unwise (for Edward Snowden’s take on this issue, see this TED Talk).
Nevertheless, even for those who agree that mass surveillance is problematic, a second argument tends to put an end to any productive debate. It is the assertion that terrorist plots that could otherwise be thwarted may be carried out if these programs were to be curtailed. This assertion seems persuasive given that the counterargument implies a cost/benefit analysis where costs are measured in the potential loss of human lives, and benefits are measured in terms of averting the (remote) risk of erosion of civil liberties and the rule of law. Striking such a balance appears to be morally unacceptable. I contend that it needs to be struck nonetheless. As a society, we already do so in other areas, and there is no reason to abstain from doing so here.
By way of illustration, imagine that for the purpose of fighting crime, the government were to install cameras in every room of every house. This would undoubtedly entail law-enforcement benefits. Nevertheless, most people would find it an intolerable intrusion into their privacy. The number of crimes potentially prevented or solved in addition to those that would be prevented or solved through traditional law enforcement methods does not justify such massive privacy intrusions. Implicitly, this means we are prepared to accept a higher risk of suffering a crime, if the suppression of this marginal risk would require a disproportionate reduction of our rights. Effectively, we are thus striking the difficult balance mentioned above. The NSA’s surveillance activities need to be scrutinized under the same light. To argue mass surveillance may thwart terrorism attacks and is therefore acceptable stops short of the real question, which is: does the benefit of the additional security afforded by mass surveillance justify the costs associated therewith?
The costs of – possibly incredibly intrusive – mass surveillance are manifold. Aside from the considerable loss of privacy, the potential for government abuses increases substantially (for recent examples of CIA and NSA abuses, see here, here, and here), while at the same time, the press’ ability to uncover such abuses decreases. In the context of the Watergate scandal, the press played a crucial role in uncovering the Administration’s wrongdoings. It is doubtful whether this could be achieved again today, for the press can no longer be expected to protect its sources when the government has complete oversight over who contacted them (for more details: Journalism after Snowden, held at Columbia Journalism School on Jan. 30th, 2014). Without protection of journalistic sources, persons with knowledge of government abuses are not likely to share such information. We thus lose an essential element of government control.
On the benefits side, we have an allegedly increased safety from terrorism attacks. Given the scarcity of information provided, this can hardly be verified, rendering balancing efforts difficult, if not impossible. We have to ask ourselves: is it plausible that national security interests prevent the executive branch from disclosing even a single occurrence where mass surveillance has provided useful information? The only thing we do know is that traditional law enforcement methods had failed on 9/11. We also know that the new surveillance methods might have uncovered that plot, and that they may thwart future terrorist plots that otherwise would not be.
But even if there were concrete benefits associated with the NSA’s mass surveillance program, the question remains: do these benefits justify the costs? And if in doubt, should the government be allowed to proceed – in secret (!)?