Things to Hide
I have things to hide.
No, I won’t tell you about them. I’m hiding them.
Don’t worry. I’m not hurting. I don’t need professional help. It’s just some things about me are (1) unlikely to get out and (2) pretty damned embarrassing.
You’re probably hiding some similar things. I’d really rather hear about them.
I don’t think I’m special. The NSA probably isn’t on my tail. To them I’m just some metadata, probably nothing more. The same is almost certainly true of you.
Yes, I once published Glenn Greenwald, and a mighty fine job he did. But I’m not paranoid enough to think that I’m on some special surveillance list. That’s not the point.
The point is that we all hide things. Hiding things is a good bit of what makes civilization both possible and pleasant. It’s a code that we all share together: You mind your business, I’ll mind mine. Usually things work out okay.
This code is way too simplistic to handle everything, of course. It does sometimes need to be violated. And our law has a mechanism for when the government commits that violation. It’s known as a warrant. Warrants are nothing new.
General warrants — those that allow a search of anyone, anywhere, at any time, without showing probable cause — aren’t new either. But that doesn’t necessarily make them good. Give the government the ability to violate the privacy code whenever it wants, with no consequences, and sooner or later it will.
We’ve been here before. Sometimes going under the name “writs of assistance,” general warrants were among the grievances that prompted the American Revolution:
[T]he government’s ongoing violation of fundamental civil liberties would have been very familiar to the men who gathered in 1791 to adopt the Bill of Rights. The Founding Fathers battled an 18th century version of the wholesale surveillance that the government is accused of doing today – an expansive abuse of power by King George II and III that invaded the colonists’ communications privacy.
Using “writs of assistance,” the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs” spurred colonists toward revolution and directly motivated James Madison’s crafting of the Fourth Amendment.
Writs of assistance are also exactly what we have now.
Has this power been used for evil? Not that we know of. But then again — we only found out about it what, not even a week ago? How the hell could we know?
If we are worried about it, where should we apply the check? Before the data is collected, or after? It must be before: In a world where we all have things to hide, and where the government can potentially know about any of them, individuals can easily be manipulated without anyone else ever knowing. Blackmail happens in private. By its nature, the victims don’t talk, and it takes someone of rare courage to defy a blackmail attempt.
But did we do all these things to ourselves, democratically, and does that make it okay?
No, and no. Democracies routinely act badly, of course, but worse, this was not the product of the usual democratic process. The American public did not authorize any such thing, and neither did its representatives.
Not when the few who were briefed could not discuss it with constituents.
Not when they could not take notes at briefings, and not when they could not allow their staffs to review the documents.
Not when all we had on the record were obviously false answers like these.
A reminder from the bad old days: One can slap the label “democratic” on anything at all. That doesn’t make it so. Democracy is a joke when the voters and representatives can’t talk about — can’t even know about — the procedures that govern them. Secret laws are by definition undemocratic.
Yes — some parts of our government do have to be secret, and thus undemocratic. No one disputes it. But a procedure that aims at all the citizens, all the time, with no restrictions — at the very least, we need to know about that.