The use of warrantless surveillance by the NSA has brought a wave of naïve statements from a segment of Americans who claim they have nothing to fear from NSA surveillance of their telephone calls and internet traffic because they’ve done nothing wrong.
Obviously, the NSA and its employees are capable of using any violation of law to intimidate or blackmail a voter or public official, such as the millions of Americans who have experimented with illegal drugs. In fact, the past three Presidents – Barack Obama, George W. Bush and Bill Clinton – would basically be ineligible for office on illegal drug use charges, based on their own published statements. And as Senator Rand Paul (R-KY) said in a June 24 op-ed for USA Today, the three would be "barely employable" under our current drug laws.
The NSA would also obviously be able to intimidate/blackmail anyone who has had an extra-marital affair, which could be a corrupting influence on a future Bill Clinton in office.
But what if you, like many who have said in recent weeks, have not broken the law or engaged in an extra-marital affair in recent years? What do you have to fear?
In fact, there’s quite a bit to fear. Not everything embarrassing which can be used for blackmail or intimidation requires that a person have serious moral failings or to have committed crimes. In short, you have much to fear if you or anyone in your family have:
- seen a psychiatrist or counselor;
- a personal medical issue, such as cosmetic surgery, an eating disorder, take medication related to erectile disfunction, bowel or urinary tract issues, warts, sexually transmitted diseases, etc.;
- had an abortion;
- viewed pornography of any kind;
- closeted homosexual views;
- said anything negative about a friend, relative or boss behind their back;
- experimented with alcohol under the legal age;
- arguments between spouses, or between parents and children when passions are at their highest;
- had financial difficulties, such as a bankruptcy or home foreclosure;
- had poor grades in high school or college;
- had employment difficulties, such as disciplinary letters in your file or have been fired.
The list could go on much longer, but the point is that even innocent people have many things about their lives they do not want exposed.
And hundreds of thousands of people currently have access to this data. Consider that the NSA employs an estimated 40,000 people. Add a percentage of that number to the many officials in other federal security agencies (such as the CIA, FBI, DHS, U.S. Secret Service) and branches of the armed forces who would have access to the information. But that’s only the tip of the iceberg. Consider that NSA whistleblower Edward Snowden didn’t even work for the NSA; he was employed by Booz Allen Hamilton, one of many technology subcontractors hired by the NSA. Tens of thousands of people who don’t even work for the federal government, who instead work for private contractors, also have access to the information.
Ultimately, hundreds of thousands of government officials and private citizens would have access to the private information on every American citizen, and have the potential to blackmail and intimidate both innocent and guilty. All it would take is one – just one – of those several hundreds of thousands of government employees and contractors to have a grudge against you, or against an organization or political party you support.
Edward Snowden’s revelations were a warning in a way that perhaps he did not intend. The takeaway from the Snowden scandal is that the NSA is already incapable of keeping its data secret from wayward employees. Snowden exposed this terrible power to the public, though he did so as a public service. But suppose the next employee who leaks is not so publicly-minded. Suppose he sends the personal files of leading Republican politicians to dirty Democratic Party operatives (or he’s a Republican ideologue who sends files on Democratic politicians to leading Tea Party organizations).
The potential for abuse of this private information is not limited to grand political conspiracies, though the IRS scandal targeting Tea Party organizations is more than ample evidence that government officials have and are doing this (as was Richard Nixon’s "enemies list" and Watergate scandal). Access to this data is available to people in many communities across the nation. What if a neighbor has access to the data and bears a grudge against you, punishing you with a controlled leak of embarrassing information about you or a family member throughout the neighborhood or to your employer?
Some people would say – despite the IRS scandal – that the cost and risk is worth it for increased safety from the threat of terrorism. But is the United States really safer by searching the phone records of grandmothers and corn farmers? The Fourth Amendment – which bans warrantless searches of the type in which the NSA is engaging – should be seen as a guideline for effective police and intelligence work.
The Fourth Amendment bans "unreasonable searches and seizures," and then defines what is meant by unreasonable:
"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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In essence, the Fourth Amendment requires that searches have 1. a warrant from a judge, 2. evidence of probable cause, 3. the warrant signed by an official under the penalties of perjury, and 4. the warrant describes what officials are looking for and where they expect to find it.
Searches without probable cause are – by definition – searches of people who are probably innocent. And that’s a tremendous waste of law enforcement/intelligence manpower and resources.
Perhaps the best example of this is the case of the Boston Marathon Bombing. Alleged Boston Marathon Bombers Tamerlin and Dzhokar Tsarnaev had been under the watchful gaze of the FBI in the years before the bombing, but the FBI did not devote sufficient resources to surveillance of these brothers, despite Tamerlin’s increasingly radical rhetoric on-line. FBI surveillance of these likely suspects, despite diplomatic communication from Russia that they could be Islamic terrorists, was met by the wall of limited resources … tens of billions of dollars in resources that had been diverted to watching hundreds of millions of Americans who are not terrorists. The FBI simply didn’t have the manpower to watch likely suspects because the NSA was spending that money checking up on unlikely suspects, like cataloging and storing your mom’s emails and GPS data about her trip to the grocery store.
The question for Americans is not whether the the government can check up on all possibilities; that kind of analysis could never happen in a world of limited resources. The question is where anti-terrorism resources are best directed. The Fourth Amendment at least guarantees that tax dollars for preventing terrorism will be spent effectively, i.e., toward people where there is "probable cause" of criminality, while at the same time preventing the horrific kind of surveillance state that once plagued East Germany.