“There are reasons to be concerned about intelligence-agency overreach, excessive secrecy, and lack of transparency,” wrote Hendrik Hertzberg in a New Yorker piece (6/24/13) about NSA surveillance revelations. “But there are also reasons to remain calm.”
It’s his reasons to remain calm that make me nervous.
“They have not put the lives of tens of millions of Americans under ‘surveillance’ as that word is commonly understood,” Hertzberg writes; with “every American’s phone calls,” the government is merely recording “the time and the duration of the calls, along with the numbers and, potentially, the locations of the callers and the called.”
Really? If government agents followed Hertzberg around, keeping tabs on where he went and how long he stayed there, and entering these facts into a government database, I would think he would acknowledge that he was under surveillance–even if the agents didn’t get close enough to overhear his conversations. Likewise, if the government had a record of who was contacting whom through the mail–who, for example, was getting a periodical-rate mailing from the New Yorker every week–surely this would be understood to be a surveillance program.
But, Hertzberg reassures, none of the info the NSA collects on every phone call is “ever seen by human eyes except in the comparatively tiny number of instances in which a computer algorithm flags one for further examination, in which case—at least, since 2008—a judicial warrant is legally required.”
So unless your pattern of phone calls are deemed to be somehow suspicious–and who know what that means, because, as Hertzberg stresses, they’re looking for people who are calling “unknown, unsuspected terrorists”–the government won’t go to a secret Star Chamber to get rubber-stamp approval to listen in on your actual conversations. This is what Hertzberg means when he says, “From what we know so far about these NSA programs…they have been conducted lawfully.” Feel reassured yet?
Hertzberg goes on to say of NSA spying programs:
The threat that they pose to civil liberties, such as it is, is abstract, conjectural, unspecified. In the roughly seven years the programs have been in place in roughly their present form, no citizen’s freedom of speech, expression or association has been abridged by them in any identifiable way. No political critic of the administration has been harassed or blackmailed as a consequence of them.
It’s a defense often made of NSA surveillance, and it’s peculiar: It’s as if it’s not possible for the government to violate people’s Fourth Amendment rights (to be protected against “unreasonable searches and seizures”) unless it violates their First Amendment rights at the same time.
In reality, of course, our civil liberties are violated–concretely, certainly and specifically–whenever we are subjected to an unreasonable search, which is to say one that is conducted without a judge having been convinced to warrant that there is probable cause to believe that we’ve done something wrong. It’s not OK for the government to sneak into our homes just to have a look around–even if they don’t use what they saw there to mess with us.