Our lawless surveillance state

So our Senators have ripped up our Constitutional protections against being searched on some bureaucratic snooper's say-so. (And remember, the snooper's view of the world is too often closer to Dick Cheney's than yours or mine.) That's really what the new verion of the FISA law they just passed does with our phone and email communications.

And yes, our champion of hope and change, Senator Obama, didn't care enough to lift a finger to stop it. He just wants all the noisy defenders of civil liberty to shut up and walk precincts for him. And many of us will, a testament to the tyranny of the two party system.

The wholesale destruction of our presumption of individual privacy for our opinions, foibles, and habits is happening for two reasons.

• It has become extremely cheap and easy to snoop. Electronic data can be swept up in enormous volume and stored and analyzed at very little cost to the sweeper. Our phones report our whereabouts through their GPS function; visual records of us on thousands of surveillance cameras more and more can be studied electronically without human labor. And if all else fails, they can track us by satellite.

• We never had to devise legal protections from this level of grab bag surveillance because such measures used to be to be beyond the capacity of people who want to sell us things or government agencies. Our privacy relied on the difficulty of breaching it. No more.

If we don't like the emerging Lawless Surveillance State (in Glenn Greenwald's excellent formulation), we're in a for a prolonged struggle. I believe this struggle is vital to the survival of a quasi-democratic society.

First, we need to make it understandable what we are fighting for. This is not easy. Technological change has made forms of surveillance once literally unimaginably now easy and feasible. We have to help people understand what is going on, that something they never thought possible is happening.

As well, we have to cut through the fear -- "but there are terrorists under the bed." There might be terrorists somewhere (though probably not under the bed) but that can't be allowed to justify sweeping up everything about everybody. Might as well hand the country over to the terrorists if we're all to be treated as suspect until cleared by the spooks.

This set of tasks, those that involve defining the problem and cutting through the fear, are, mostly, tasks that relate to an older generation of folks. This isn't entirely about chronological age -- it's about folks stuck in mindsets that were once rational and have become dangerous to liberty. Both an awareness that everything about our lives can be an open book and that this country, so isolated by its oceans and history, could be subject to foreign-based terrorist attacks are wildly new and dissonant ideas to lots of us who've lived awhile. Something did change after 9/11 -- authoritarians won license to curtail our historic freedoms.

That goes, especially I think, for many of our lawmakers. On this subject, a Diane Feinstein (or even more a computer-illiterate John McCain) is simply stupid, utterly without relevant understanding of what's at stake when they gut civil liberties. (And yes, they might also be more than a little ready to do favors for the companies that pay for their campaigns.) Building a fight against the lawless surveillance state has an element that is analogous to what an old (chronologically) friend of mine once said about achieving gay marriage: "Some people are going to have to die off." There are people, heavily represented in Congress, who are never going to understand what is happening in this arena. We have to replace them. And we, and the passage of time, will replace them.

There's a further obstacle to fighting the lawless surveillance state: more informed people's resignation and cynicism. The more technically savvy among us, often younger people, take for granted that they give away a lot of privacy in order to play with their tech toys -- and either don't mind losing their privacy or don't think having the world know their innermost souls and habits can hurt them. I get this -- I live it and I like my toys. It's all too easy on this side of the digital divide to believe that "resistance is futile."

Those of us who live inside this new world of easy surveillance aren't going to really understand what has gone wrong until we see or experience abuses ourselves. It won't always be somebody over there -- some hapless foreigner, some powerless brown person, some drug trafficker -- on the wrong end of unregulated government snooping. True stories of abuse will leak out -- and those of us in the electronic arena will amplify those stories. The snoops will pick the wrong target. Or they'll just plain do something dumb as they did in the cases the telecoms got thrown out today; plaintiffs' lawyers were sent transcripts of illegal wiretaps for which no warrants existed.

Building a movement for civil liberties that fits the contemporary lawless surveillance state is not going to be the work of a few months or even years. Remedies need to be envisioned that take into account the new, enormous, and cheap capacity for privacy invasions that technology has brought us. Both Canada and the European Union have something like "privacy officials" whose mandate is prevent abusive surveillance. Maybe there is something in that approach, rather than trying to reinstate warrants. I don't know -- these are things we'll learn by political struggle and in the doing.

It's good to know that some semi-establishment voices are already denouncing the surveillance regime, for example this New York Times editorial.

The magnitude of the threat to individual autonomy is so great that the very terrain of the fight will of necessity change. What now appear unlikely coalitions will make sense because we are confronting something new. Specifically, I'm going to have to work in cooperation with libertarians, though as I said the other day, I think the way they understand a good society is crackpot.


The always excellent Glenn Greenwald has made a start on building a movement to bring the lawless surveillance state back under legal limits -- not surprisingly, it is called "Strange Bedfellows." Click on the graphic about to explore that project.

And even after betrayal on FISA, we have to keep kicking back -- that's what free people do.