A model of the GCHQ headquarters in Cheltenham (Photo credit: Wikipedia)
We have heard from many writers that when the NSA and GCHQ monitor the web and communications across the web they engage in censorship or the surveillance becomes a form of censorship because it chills the freedom of expression.[1] In a liberal democracy this is a myth, a dangerous myth, because it masks the underlying power of public opinion. What silences us, if we are to be silenced, is not the state but four other actors: our neighbours, the public, our employer and, finally, the laws. While we find it convenient to blame the state, the one overt guardian who sets public limits to our behaviour in public and private, they are less effective than the other actors are in enforcing conformity. We blame the state because it is abstract and remote and by doing it we absolve ourselves from responsibility for our opinions and our actions.
The public is a better censor than the state.
Behind all of these actors is the public opinion that influences how each of these actors affects our willingness, as opposed to our ability, to speak publicly. If the public opinion frowns upon some opinions, for example common human decency restrains the more morally obtuse opinions[2], then people will usually hesitate from speaking about them publicly. They either fear the consequences, such as losing their job or their friends, or they fear being seen as inhuman in their opinions. Even if common human decency does not eliminate evil, it does contain it enough so that society can offer a morally safe space for people to live and flourish free from fear of overt physical violence and aggression. In the public sphere, as opposed to the private, we find that surveillance, in a liberal democracy, is almost unnecessary regarding speech. When people suffered abuse online they have published and broadcast the abuse to draw attention to it. In response, the decent public opinion has rightly condemned it and in many cases forced the government or the company hosting the material, as an expression of the common decent opinion, to act. In other cases, the public have acted directly on the offender’s employer to exert pressure on them to withdraw their statements of suffer consequences for having expressed them publicly. The public, not the state, had them under surveillance and restrained the other speakers. The public, rather than the state’s covert or overt surveillance, identified the offensive opinions and “censored” it.
Surveillance and control: not always the responsibility of the state.
If we consider surveillance as a substitute for social control or an extension of the rule of law, we realize that it only reflects what the community expects regarding the standard of behaviour within its borders. I purposefully ignore external, or foreign, intelligence surveillance, covert or overt, because it is outside the state’s political domain. By that I mean, what a state does externally to defend itself is not the same as what it must do domestically to retain its legitimacy.[3] To confuse or conflate the two is to embark on a utopian or dystopian journey to a world state where there is no foreign policy only domestic policy. Even in the digital domain, the two realms only overlap to the extent the digital domain has no borders. The author still has a physical presence and exists in a physical space that is subject to state authority. As the state polices the overlap between the digital and the physical, we realize that the NSA or GCHQ are too remote from our daily activity inside the state to be considered as a form of social or community control. Instead, their profile is in an inverse relationship to their influence. We need to look closer to our daily lives to understand where social or community control or influence occurs on our public opinions. The intelligence agencies in liberal democracies are not the source of censorship; other actors have that role without the aid of the state.
Public or private, if it is written down it can be read.
I would stress that we need to distinguish between our private opinions and our public opinions. Private opinions are those opinions that are limited to the spoken word in a private setting, such as the home or an association like a club or church, and it excludes places like work. Public opinions are what we say or write in public places like work, the street, in court, or on a social media platform. The focus has to be on our public opinions published or broadcast on a public media, physically, such as speaker’s corner, or, digitally, such as a social media platform. Neither of these “places” can be considered private no matter how exclusive because they are intended to be public. The “speech” is recorded and held by a publicly accountable organisation and are published to be shared and read by others beyond our control.[4] Even though the spoken word allows a plausible deniability on its meaning, its intent, and its context, which is not available to the same extent with the written word, it is still public.[5] To put it differently, but directly, you cannot write for different audiences with the same text as you can speak to different audiences with the same speech. In the latter, it is easier to display your intent differently to different audiences.
What is the orthodoxy that censorship defends?
We cannot claim that surveillance from our home, our work, or the public “censor” or constrain our speech until we can explain what orthodoxy they enforce. Censorship only exists to the extent that it is used to enforce or defend a known orthodoxy. Those who claim that surveillance has chilling effect on public speech fail to articulate the orthodoxy or the common standard of opinion that is being defended by such surveillance. If the opinion that might be chilled is in line with the opinion being defended by surveillance, then the speaker should not fear the surveillance. Even this assumes that the people who undertake the surveillance understand what is being said, find some threat or challenge in it, and then know its possible effect on the orthodox opinion. Leaving aside those secondary questions, we still return to the fundamental question: what is the orthodox opinion that is being defended or propagated by those who undertake surveillance? The theorists who speak against surveillance and its “chilling effect” seem to believe that the orthodoxy is automatically challenged by all speech and surveillance automatically creates or enforces conformity. Instead, what we find is that surveillance and the orthodoxy it defends is more concerned with public order issues and those that could lead to an attack or action against the public order, which is the state’s fundamental responsibility to its citizens. The state’s concern with the orthodoxy fits closely with what the legal system or the laws (an expression of the community) require.
You cannot advocate the abolition of the monarchy, but who cares?
To illustrate the point consider that in the UK it is illegal to argue or advocate for the abolition of the monarchy. Yet, no one has revealed any surveillance or any arrests or prosecutions for it.[6] In that simple case, we see how benign the state is in its surveillance or how far it has accepted the idea of free speech even though it would, technically, have an interest in this part of the orthodoxy. Moreover, we see that its focus is on a narrow issue of physical and immediate threats to public order through violent acts that are designed to damage or destroy the society and its guardians rather than sustain some political orthodoxy. If the state and surveillance were focused on stopping free speech or chilling speech, it would focus on those activists or speakers who advocated the abolition of the crown, yet the surveillance state has not done that. When the state has put activists or speakers under surveillance these have been directed against public order threats rather than political speech. We only need to consider how extensively and widely “hate” preachers are able to operate before the state takes an interest. When they do, it is because their word is threatening to become a deed, which will affect public safety.
Is surveillance different from being in the public gaze?
In many ways, surveillance makes one self-conscious. In much the same way that a person becomes acutely self-conscious when they have to speak before a group.[7] People would rather remain in the audience rather than be on the stage. Surveillance gives the psychological appearance that the person is no longer in the audience but on the stage. From this point, we can begin to understand why people in the entertainment industry and politicians are inured to surveillance. They are in the public gaze, they court it, and they attract it and surveillance is similar to being on the stage. For the average person, such attention may seem strange or threatening. Yet, the average person is unlikely to be under surveillance. If anyone has them under surveillance, it is likely their family, their work, or their community. The final actor, after all of these have been exhausted, is the laws.
Family and neighbours
Our family and neighbours are people for whom we would not say in private or public something that would embarrass or alarm them. In our family, there are topics we will not discuss or we would not want them to see us discussing. Often times, this will restrain some discussions and in that sense our concern for how our public comments affect our families or friends can inhibit what we say. We are censored by those relationships when their views actively inhibit us from speaking and we know why. In that sense, we try to conform to their expectations in speech and actions. The Ancient Greeks, through Oedipus Rex, revealed the power and danger of familial conformity and censorship for behaviour that was threatening to the family.
Public (community).
Our community, either the wider public or simply our cohort or network of contacts creates standards that constrain our opinions. These standards are often closely, but not completely related to the laws. This can include religious groups but only to the extent that it is a public religion. We can see this censorship at work on in contexts such as twitter, or Facebook, where a social group that determines what acceptable behaviour is. We can see this in political communities where the group’s orthodoxy must be respected or the speaker is reproached or potentially expelled. Baruch Spinoza is perhaps the best-known philosophical example. Our community, beyond our family and friend, create a constraint on our views. If we speak publicly our community, either physically or online, may express a view that our opinions are not welcome or are not acceptable within that community. Such speakers may find their accounts blocked, or disabled, and the community shunning them in public or refusing to engage with them. We must remember that in a liberal democracy public opinion is more tyrannical than the state in defence of its orthodoxy.[8] Consider the case of Justine Sacco to see the power of public opinion on an individual.[9]
Work (Not Suitable for Work).
At work, we see a form of surveillance and censorship from our employer’s expectation or even a legal requirement that certain speech be avoided. The colloquial phrase, Not Suitable for Work (NSFW) exemplifies this issue. In the United States for example, the freedom of speech does not extend into the company domain. A company can set rules regarding political speech within its workplace such as those stopping political speech. More generally, the standard of the workplace, (is it work related), determines whether some topics can be discussed.
The laws are the censor we consent to accept
Behind all of these communities as a last resort are the laws. The law constrains what we can or cannot say. The defamation law in the UK that came into force will change how people write. Most concerns about NSA surveillance are on what is written or recorded electronically rather than what is spoken extemporaneously. Even speech is covered by the law with slander and libel laws limiting what people can say with impunity.
Surveillance is not censorship: public opinion is a better censor than the state.
What we find is the NSA surveillance or any surveillance does not censor our speech so much that other institutions already in society, before the surveillance and distinct from surveillance, create a belief that we must censor ourselves or face censorship from them. In other words, we conform to our peer groups and the societal clues that do not require state surveillance or enforcement. If we focus on censorship, rather than conformity, the claim that surveillance creates censorship is not useful unless one knows the orthodoxy that surveillance seeks to defend. Surveillance for the sake of surveillance will have no effect on speech. Surveillance to defend the orthodoxy against its critics could. In liberal democracies, where freedom of speech is promoted and the orthodoxy is tolerant of dissent, it would take an extremely dangerous speech to even warrant surveillance and that would usually only be on the basis that a physical threat of disorder were proposed. To put it differently but directly, people regularly make radical statements without consequences. One could say that so many radical statements are made they drown each other out. Alternatively, radical statements are now so common that we do not recognize true radicalism as moderate and measured statements are ignored or shouted down. However, when word becomes deed then surveillance may become censorship, which is what the community expects and demands despite the myths to from those who benefit from an agitated public. Perhaps the conformity that is being demanded is that we accept that surveillance leads to censorship and conformity.
[1] We have to be clear to differentiate between censorship, which is a specific act by a group or the state to stop someone from speaking and chilling free speech, which is stopping anyone from speaking freely. Censorship usually implies or requires orthodoxy to be defended. By contrast chilling of free speech must suggest that people are unwilling to speak more generally not simply about a specific topic or topics. On the issue of conformity, consider http://psychology.about.com/od/socialinfluence/f/conformity.htm
[2] Please note that I distinguish between general opinions and the more specific case of “truth telling” as defined by the idea of parrhesia or truth telling in all settings literally “say anything”. The latter is a specific case in which the person knows, or at least has taken time to discover a truth and has to speak it for the benefit of the common good regardless of context or circumstance. This is not the same as speaking truth to power although it is related. Speaking truth to power is a subset of parrhesia, which is truth telling A whistle-blower is not by definition someone who is practicing parrhesia, they are making an opinion about an event or issue that needs to be tested to discover whether it is a truth. They believe a clear criminal wrongdoing has occurred which they know from their professional work. One does not claim to be a whistle-blower to have a “debate” or to let people decide. In a liberal democratic state with elected representatives exercising administrative responsibility such a role does not exist because the system, by its structure, intent, and design, is for democratic debate.
[3] I also distinguish between monitoring the various domains, like the published press, and surveillance which is directed towards a specific person, topic, or target. Surveillance is not monitoring or collecting. Surveillance has to be intentional with a target and a purpose that reflect the state’s politically legitimate process. To put it another way, even theocracies have intelligence agencies.
[4] If someone publishes something on their company’s internal email system or their intranet, they are still subject to the law of libel or defamation. The law does not distinguish between private and public statements.
[5] On speaker’s corner someone may take exception to what you are saying and react to it either verbally or physically, which is a crude form of accountability.
[6] See the article in the Guardian.
[7] In this sense, one could say the NSA surveillance reminds one of God. As the believer understand that God knows what is in their hearts and what their intent is behind their acts. Perhaps people are uncomfortable with confronting their conscience once they are reminded of it? This is not to preclude the danger of a state abusing surveillance, which is why the focus here is on a liberal democratic state, which starts with the assumptions that the individual is well protected and has a robust legal and political system to protect an individuals legal and political rights.
[8] Public opinion is not always the same the orthodoxy. In a liberal democratic state, the state defends the orthodoxy even from public opinion although even the state may succumb to a sustain assault by public opinion.
[9] http://www.theguardian.com/world/2013/dec/22/pr-exec-fired-racist-tweet-aids-africa-apology
Related articles
Philosophical Politics 
Is surveillance different from the public gaze?
Yes, most definitely. The public gaze will not have a bunch of firearms cops break into your flat and arrest you. Surveillance will, and mass surveillance will do so independently if you actually did something wrong or not, as sheer statistics mandate that with the amount of data, the amount of mistakes in its use will increase as well.
Your statement in annotation 2: “In a liberal democratic state with elected representatives exercising administrative responsibility such a role does not exist because the system, by its structure, intent, and design, is for democratic debate.” fails to recognize that one can only engage in democratic debate on issues one is aware about. This is precisely the reason why a significant degree of transparency is essential for a liberal democratic state to function: With elections having also a corrective function, it is a critical requirement that the electorate has at least a general idea what those elected have been doing on issues that the electorate deems important enough that it might sway their decisions one way or other. You cannot debate nor correct that which you are unaware of.
Dear Oliver,
Thank you for the comment. Is surveillance that much different from the public gaze? In a sense, it has to be as surveillance is directed by the state for the state’s purposes which are to serve the purpose of the common good as understood by the state. However, in the public domain the public gaze is very similar to surveillance because it reflects, at a macro level, public opinion. We look at strangers because they stand out from the community, they are under “surveillance” by the community, by public opinion. In the same way anyone who does something different or unexpected from public opinion is under the public gaze which may lead to state action. For example, people call the police when they see someone acting criminally or public drunkenness.
I am not sure how statistics or mass collection of data creates an issue. All states conduct a census and collect a lot of data. That does not lead to state action. At the same time, the state has limited resources so the census and other state activity to collect information from and about its citizens, and foreigners, is needed to deliver those public services effectively and efficiently. I am not sure how that information automatically or even statistically leads to fire arm police coming to someone’s home. Usually the police do not have time to deal with hypotheticals and the court is not interested in probabilities. For the case to interest the police let alone the courts, they need more to go on than a statistical correlation.
On the awareness issue, that is a problem of the democratic system and also why we elect representatives so that we do not have direct democracy and what that requires. Not every citizen has the time or skills to monitor the laws in the way that we elect and employ agents to do that. If every citizen were as informed about all aspects of government as a government minister, then would that make them better, what society would we have? Who would farm the land? Who would educate the children, who would build houses? We can, and should, hold our representative to account for what they are trying to achieve, which is to protect and promote the common good. Have they done that with their oversight of the intelligence agencies? That is more important, ultimately, than whether a citizen knows as much details of the surveillance programme as its creator or its oversight bodies. What the citizen needs is the ability to hold their representatives to account, which is a different type of information.
Interestingly enough in the US, the congress and the senate were briefed on these programmes and hearings had been taking place over the years, since at least 2001 concerning these programmes, their effectiveness, and their purpose. The issue is not oversight but whether the NSA or the representatives had a system for assessing the effectiveness of the programme, which is different from knowing whether and how the programme works. I do not need to be an electrical engineer to know if my computer delivers what I want it to deliver. I am unaware of its capacity to store memory but I do know when the memory is full and I know when it no longer works. Do I really need to know more than that for the purpose for which I use it?
“Usually the police do not have time to deal with hypotheticals and the court is not interested in probabilities. For the case to interest the police let alone the courts, they need more to go on than a statistical correlation.”
If we were talking about simple theft, yes. But we are talking about terrorism, Your assumption that the police would not act on probabilities is proven wrong, in the UK, by both more recent cases such as Jean Charles de Menezes, but also the Guildford Four, the Birmingham Six and the Maguire Seven.
As for the US, check here: http://www.nytimes.com/2003/06/19/us/threats-responses-law-enforcement-false-terrorism-tips-fbi-uproot-lives-suspects.html
You underestimate the pressure on both police and the courts to prevent further attacks.
“We can, and should, hold our representative to account for what they are trying to achieve, which is to protect and promote the common good. Have they done that with their oversight of the intelligence agencies? That is more important, ultimately, than whether a citizen knows as much details of the surveillance programme as its creator or its oversight bodies. What the citizen needs is the ability to hold their representatives to account, which is a different type of information.”
You are committing two flaws in thinking here. First, is any representative capable of effective oversight at all? The fact that the NSA refuses to rule out that they are keeping tabs on Senators and Congressmen speaks volumes. The control mechanism is turned on its head: Not Congress is controlling the NSA, but the NSA knows precisely what skeletons those supposed to control it have in the closet. On that basis, no effective control is possible.
As for holding the representatives to account, how do you do that if the actually relevant information is kept secret? The electorate assumes that when Microsoft gives them certain guarantees regarding the safety of their data, that Microsoft will adhere to it and inform them of any breach of security. But the fact is that Microsoft is not even allowed to tell them. More: The owner of an encryption service recently was not even allowed to tell his lawyer everything about his correspondence with intelligence services. He rather shut the service down than breaching the trust of his customers.
How do you suppose the electorate holds their representatives to account for allowing such measures when they do not even know of them?
” The issue is not oversight but whether the NSA or the representatives had a system for assessing the effectiveness of the programme, which is different from knowing whether and how the programme works. ”
The issue is very much oversight, as the electorate was deprived of the chance to make an informed decision.
“I do not need to be an electrical engineer to know if my computer delivers what I want it to deliver. I am unaware of its capacity to store memory but I do know when the memory is full and I know when it no longer works. Do I really need to know more than that for the purpose for which I use it?”
It speaks volumes that you compare the constitution of a country to a disposable and easily replacable device.
Oliver/Tyleko
Thanks for the response. I think we are moving away from the central point. The police activity in the cases you described was not created by NSA or GCHQ intercepts or their surveillance. They were human mistakes of the basic kind in the Jean Charles de Menezes case, it was a rash decision immediately after 7/7 so the context is more hot pursuit than analytical inference.
As for false tips, we are moving beyond what were discussing NSA surveillance and how it works to the next two stages, analysis and operationalisation of that analysis. In particular, how the police and domestic law enforcement use the intelligence provided to them by the NSA or the GCHQ. They are rarely seamless and they are not without their own institutional biases.
I do not underestimate the pressure, but the pressure is self-imposed as much as a failure to understand what creates the threats. This is not to say they do not exist nor that the work is not necessary. However we have moved away from my point about defence in depth and the larger point of public opinion as more powerful at enforcing conformity than surveillance.
On the democratic process, I think the representatives and their staff are pretty good at their job. I have worked with politicians and they do take an interest. They may not be experts but they know how to find things out, what they mean politically, and how to ask questions. Are Senators and Congressmen above the law? Are they above suspicion?
I really doubt the NSA knows the skeletons. They have no upside to that because they cannot operationalize such knowledge. Political operatives will know these better. Look at how Sanford’s trek in the mountains quickly unravelled or how divorce proceedings of Obama’s opponents were unsealed so easily. Neither of these required NSA involvement. After Nixon the NSA and CIA are very scrupulous about these issues and the politicians would be fools to try it. Why? Because the downside is higher than the upside. Even when Kissinger thought his aides were leaking material and put them under phone surveillance; it turned up very little of interest and nothing of use.
I would suggest you familiarise yourself with the amount of disclosure that is legally required to work for the government. Your co-workers are going to know more about you than the NSA is going to find out through signals intelligence. Someone’s bad divorce is going to be on a paper record in a court house not being transmitted through the internet via yahoo mail.
Have a look at Pozen’s work on deep secrets. Pozen, David, Deep Secrecy (April 19, 2011). Stanford Law Review, Vol. 62, No. 2, pp. 257-339, 2010. Available at SSRN: http://ssrn.com/abstract=1501803
There are very few deep secrets in DC and what is secret is usually sources and methods which are not of interest to anyone except technological experts. That the politicians do not do as you exactly want does not mean they are not holding to account. I think we need to remember Burke’s statement regarding what a representative does. http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html
Congress, though they do not always like to hear it, have to obey the law. Espionage law exists to protect secrets. That someone is interested even a congressman does not make it ok to break the law. These sources and methods have taken a long time to develop and they are not discussed or disclosed lightly.
Did you make an informed decision about the recent decision by the Bundestag on HFT? http://www.eurexchange.com/blob/exchange-en/455384/457548/4/data/presentation_german_hft_bill_client_information_session.pdf
Surely this is important and will affect your economic future.
Hardly comparing the constitution or the political process to an electrical item. I am comparing the need for knowledge of what it does, its effect, versus how it works. The two are not always connected and most users of a political process want to know its effects not how it works.
Mr. Serewicz,
“By that I mean, what a state does externally to defend itself is not the same as what it must do domestically to retain its legitimacy.[3] To confuse or conflate the two is to embark on a utopian or dystopian journey to a world state where there is no foreign policy only domestic policy.”
You have a talent for making innocuous statements that all but a handful of communists or anarchists would disagree with, then leaping from that sound premise to a conclusion that does not follow. It is akin to the U.S. Supreme Court deciding in 1973 that its prior rulings that individuals have a right to privacy and that women have a right not to have the government involved in their medical decision to use birth control means the government has no right to abjure them from killing or injuring an innocent life inside their womb. The twist is always at the end with your essays, which seem normal, sound and persuasive until one gets to the conclusion which is invariably attempting to justify or rationalize immoral or unConstitutional acts and laws through tautologies. Even the Nazis, at the risk of ignoring Godwin’s law from the outset here, were big on the German concept of Gemeinschaft, which only loosely translates as ‘community’ but has deeper undertones in German thought. But they clearly meant something different by the term than say, Wilhelm Ropke or Dietrich Bonhoeffer!
This statement has the same problem as the essay you wrote on Abraham Lincoln’s birthday, “Edward Snowden and America’s suicide”. It ascribes all the harm being done or that could be done to the individual, not to the State, because the State seems tame and tolerant for the moment of dissent (unless one literally takes one’s discontent to the streets, like the Occupy movement). It ascribes all the blame for the decline in respect for the U.S. government and American laws to the People and not to their government in Washington (and to a lesser extent at the state and local levels) that routinely ignores laws it itself has passed to rule by waiver or bureaucratic dirigisme, Take for example, President Obama’s Affordable Care Act.
The tea party Republicans insisted, regardless of Supreme Court Justice John Roberts finding the act suddenly Constitutional by virtue of it being a tax rather than a fine, that the Supreme Court got the decision wrong. Democrats responded that ACA was now the law of the land and the Republicans and tea partyers needed to respect the High Court’s decision. The trouble with that Statist position was twofold: the historical fact that the Supreme Court’s rulings in Dred Scott and Korematsu, upholding slavery and the internment of Japanese-Americans, were also at one time regarded as the law of the land. But the second far bigger problem the Democrats had was that their own standard bearer found it politically impossible to uphold the law he had championed even AFTER the Supreme Court found a (disingenuous) way to uphold the Constituionality of the State making individuals pay a fine for refusing to fund health insurance corporations which are private entities.
Thus, the responsibility for Americans losing respect for the ACA aka Obamacare lies not in the hands of the tea party which fought it tooth and nail in Congress and in the courts, but in the White House that believes the ACA is a mere plaything for the President to modify at whim, thus ruling by waiver (what would’ve been known in the 1920s-30s as rule by diktat or decree).
Similarly, the responsibility for blurring the lines between law enforcement and foreign intelligence gathering lies with the National Security Agency and the GCHQ. Why? Because it is the NSA and the GCHQ that have created the impression that they routinely swap data on American and British citizens that it would be illegal for the respective 5Eyes partners to obtain without a judge signing off on a warrant in their respective countries. Furthermore, it is the NSA in its zeal to ‘close the gap’ between ‘foreign’ and ‘domestic’ plots that has created a program that scoops up all the telephone metadata its systems can possibly hold, despite the fact that the metadata program has proven to be unsuccessful in stopping the Boston bombing terrorist attack, and President Obama’s own handpicked NSA review panel found its worth rather lacking. Gen. Clapper himself, after damaging respect for the NSA by giving in his own words the ‘least untruthful’ answer under oath to a United States Senator, had to backtrack on his claim that the telephone metadata program had helped to foil 50 terror plots, dialing the real number down to perhaps one. Even Clapper’s insistence to CBS News that the NSA missed one of the 9/11 hijackers making a phone call from San Diego, CA to an Al-Qaeda safe house in Yemen that was already tapped lacks credibility. Really the NSA pre-9/11, pre-Patriot Act had no authorization whatsoever to tell the FBI field office in San Diego to check out a San Diego area code number that showed up on the metadata of a line it had already tapped overseas? The very claim is laughable.
Thus time and again while your agenda is clearly to blame the People and individuals for declining respect (and hence trust) for the NSA and its counterparts, as well as the American and British governments, it is the actions of these governments that have destroyed public faith and the respect for the rule of law.
“As the state polices the overlap between the digital and the physical, we realize that the NSA or GCHQ are too remote from our daily activity inside the state to be considered as a form of social or community control.” With all due respect sir, the National Rifle Association in its court filing in the southern district of New York does not agree with you. The heart of the NRA case is not the claim that the NSA may have created a de facto registry of American legal gun owners in violation of the 1986 Firearms Owners Protection Act which prohibits such a thing, but rather that NSA surveillance itself creates a chilling effect on who may choose to join the NRA, just as Congress and courts agreed in the 1970s that FBI Cointelpro surveillance was designed not so much to identify individual radical actors in the anti Vietnam War movement but to intimidate Americans from participating in the antiwar movement at all.
Dear American Kulak,
Thank you for the many comments across several blogs. I will try to answer them in order. I cannot answer them in the same detail. I believe you have written over 4000 words, which is probably the same as 5 blogs for me!
On this comment, I can respond as follows.
First, the government in the United States is of, by and for the people. In it people rule and are ruled in turn. In that sense, it is made up of individuals. The country is made up of individuals melded or moulded into one. Our national motto is E Pluribus Unum. Out of many, one. The harm comes from our individual lawlessness. I do not ascribe to the view that aggregating our personal vices becomes a public virtue. Furthermore, I prefer government to state in the case of the United States Government. We are a collection of United States to create a Union. The union is first then the states, but that simply is, in this discussion, an administrative issue. I do not ascribe to the view that the states made the union.
Second, the deeper issue is that public opinion rather the government rules in America. The laws only reflect the public opinion. To an extent they shape it but in that shaping, they only reflect a view influenced and driven by public opinion. Public opinion, though, only, usually, concentrates in the laws occasionally. Usually, public opinion is a diffuse idea that ebbs and flows on a topic by topic basis. Tomorrow’s hero is yesterday’s goat.
Third, I am not sure the point with the ACA. This type of issue has played out before. I find it rather amusing, but almost horrifying, to think that the Tea Party would think that whatever ACA’s flaws that they are as bad as or worse than Korematsu or Dredd Scott. These were wrong, then, now, and forever.
Fourth, the blurred lines have not occurred. There is a bright line between law enforcement and foreign military power. The military are clear on this as is the constitution. The foreign intelligence is less clear because the nature of intelligence in a war setting, which AUMF recognizes, is different. The war is not fought on battlefields that have physical armies. We are fighting a digital war on a digital battlefield with few physical combatants. The intelligence demands and behaviour reflect that changed understanding.
Fifth, intelligence gathering is about connecting the dots backwards faster to affect the situation. No one can connect them forward. God can, but man cannot. What it does, if you have a faster intelligence cycle, is disrupt the enemy, deter their attacks, and makes it harder for them to operate unless they are as fast or better at hiding the dots? So, the enemy is not going to be faster, no one is at this stage, so they have to hide in plain sight. This is the challenge. They are not going to encrypt, that looks like a target. They will use open language on open channels but in a way, like code, to avoid detection. Thus, the NSA will have to Hoover up open channel even as it spends time trying to crunch the encrypted for the possibility, real if only to make the open source less conspicuous, it contains the necessary intelligence.
Sixth, the opponent is clever and they know what they are doing because they are facing a hard target. However, once inside the system, it is soft, which is why we had airliners as weapons and not fighter jets or military bombers.
Seventh, I blame the people because the people are sovereign. To believe otherwise is to absolve all citizens of responsibility. This is not the UK in which the parliament is sovereign, not the people, or the Monarch. Parliament rules the country. In America the people rule the country and the government acts in their name according to the constitution. Everyone lives under the Rule of Law set out by the constitution. In the UK, they live under the Rule of Parliament.
I think most NRA members are going to join regardless of what someone says or knows. I find it rather doubtful that someone serious about the NRA is going to be worried what the NSA thinks let alone their neighbour. If they were worried about such things, why have the stickers? Why have membership lists? Why have a regular magazine and regular events? The reason they have those is that they do not fear the NSA.
On the FBI in the 60s and 70s, while they had that effect, their genesis was not that issue. There were riots, there were bombs, and there were assassinations. Let us not betray our memory, our history, and the truth to believe or speak otherwise. Recall that Malcolm X spoke of the ballot or the bullet. He spoke about a revolution and the use of the bullet if the ballot did not respond. Even though he mellowed at the end of his life under a religious conversion, his message at that time was confrontational and demagogic. Lastly, the USSR was running agents and attempts, even if crude, to support opposition to the Government as an attempt to weaken the US effort in Vietnam.
Even with such work, it was hardly an effective suppression system as America’s political culture does not work that way unlike the USSR or East German or the PRC’s political culture, which fosters such conformity and political oppression and actively and viciously suppresses any opposition to the government. The United States tolerated an official communist party. I do not recall a liberal democratic party in the USSR, East Germany, or the PRC.
Thanks again for a stimulating response.
Sic “You have a talent for making innocuous statements that all but a handful of communists or anarchists would NOT disagree with,”
Here’s the link to the National Rifle Association’s amicus brief to the American Civil Liberties Union’s lawsuit against President Obama, Atty Gen Eric Holder, and Gen. Clapper and the NSA in NY, NY federal court. The NRA is still legally registered in NY State.
https://www.aclu.org/national-security/aclu-v-clapper-amicus-brief-national-rifle-association
ACLU vs. Clapper – NRA
http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act
Firearms Owners Protection Act of 1986 — which would make any warrantless list building of American gun owners and their firearms/ammunition purchases by the NSA or any NSA employees a felony. Please note that nothing, short of NSA participation in domestic drone strikes on Americans, could arouse more popular fury in ‘Red States’ against the NSA and threats by State lawmakers and governors to either cut off water supply or electricity to NSA facilities or even order State troopers to arrest NSA personnel in places like Utah or Texas than an NSA gun log being revealed as a fact.
http://www.theguardian.com/world/2014/feb/12/utah-lawmaker-nsa-data-centre-water-supply
Of course, the next question is: if some governor or state lawmaker actually were to succeed in cutting off the water or power to NSA Bluffdale or San Antonio, and the local law enforcement and/or National Guard units followed their state rather than federal authorities, could such an event trigger a hyper violent response from the federal government starting a Second American Civil War?
Sic “You have a talent for making innocuous statements that all but a handful of communists or anarchists would NOT disagree with,”
Here’s the link to the National Rifle Association’s amicus brief to the American Civil Liberties Union’s lawsuit against President Obama, Atty Gen Eric Holder, and Gen. Clapper and the NSA in NY, NY federal court. The NRA is still legally registered in NY State.
https://www.aclu.org/national-security/aclu-v-clapper-amicus-brief-national-rifle-association
ACLU vs. Clapper – NRA
http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act
Firearms Owners Protection Act of 1986 — which would make any warrantless list building of American gun owners and their firearms/ammunition purchases by the NSA or any NSA employees a felony. Please note that nothing, short of NSA participation in domestic drone strikes on Americans, could arouse more popular fury in ‘Red States’ against the NSA and threats by State lawmakers and governors to either cut off water supply or electricity to NSA facilities or even order State troopers to arrest NSA personnel in places like Utah or Texas than an NSA gun log being revealed as a fact.
http://www.theguardian.com/world/2014/feb/12/utah-lawmaker-nsa-data-centre-water-supply
Of course, the next question is: if some governor or state lawmaker actually were to succeed in cutting off the water or power to NSA Bluffdale or San Antonio, and the local law enforcement and/or National Guard units followed their state rather than federal authorities, could such an event trigger a hyper violent response from the federal government starting a Second American Civil War?
Dear American Kulak,
I will focus on your last point. I do not see that possibility. There is very little chance of that happening. Why? To what end? There are lots of legal ways for individuals and states to challenge the federal government. Public opinion is a key tool at their disposal and the Snowden revelations have been used to give the NSA and the government a lesson in public opinion’s power. The NSA lost the public opinion battle. However, the government remains legitimate because the people understand the basis for its legitimacy and the legitimacy of the NSA.
Thanks for the links. I doubt the NSA is going to be interested in gun ownership except to cross reference against the foreign intelligence they are pursuing. They do not have operative agents, by law, so any intelligence would be auctioned by relevant agencies that would need to consider whether it was useful or needed. Seriously, the NSA tracking a gun owner is almost laughable. They have enough trouble with known terrorists let alone someone who is going to be foolish with a handgun. Instead, local and state law enforcement is going to be interested in and know about the local issues. If it went across borders and was highly complex, like a Mexican drug cartel, then, maybe, the NSA may have help out in some fashion, but that is really a stretch. Why use a sledgehammer to crack a nut? The NSA would not agree to that as their primary mission is national security not law enforcement.
Thanks again for a stimulating post.
Best,
Lawrence
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