(Swans - July 29, 2013) Should people who live in the U.S. be concerned by what appears to look like a (drastic?) reduction of the rights afforded by the Constitution and the Bill of Rights, particularly the First and Fourth Amendments? According to critics, the U.S. is becoming a surveillance state and citizens and residents are losing their freedom (whatever the meaning or meanings of freedom). Rhetoricians are out in force. Politicians do what they always do: whine and give interviews and speeches. Older generations lament years past when privacy still had a broad meaning, and worry about the future of the nation. Youngsters are slowly redefining, consciously or not, the notion of privacy. These are peculiar times marked by an ever-increasing distrust in state authority, a national psyche hurt by a deep socioeconomic crisis, a lack of solidarity, globalization out of control, much uncertainty, and little confidence in the future. In almost every country around the world the powers, elected or not, are contested, violence is simmering, alternatives are not found. Have Big Brother and a Brave New World finally fallen upon us, or do we struggle with the consequences of technological changes and complexities that are happening faster that one can fathom?
Much has been written or spoken about the Snowden imbroglio (Assange and Manning, et al., included) in the main and alternative media and more is to follow. At this point, we are aware that the US government is relentlessly pursuing so-called whistleblowers, which are now conflated with acts of spies and terrorists by the National Insider Threat Policy. The US administration is even investigating General (ret.) James Cartwright, former vice chairman of the Joint Chiefs of Staff, for allegedly leaking classified information regarding the Stuxnet virus that targeted Iranian nuclear centrifuges. One could surmise that this administration, in charge of the defense of the nation, is on an ongoing crusade against leakers -- which is understandable if one sits at the top of the pyramid, like Mr. Obama playing the role of Captain Nemo fighting the giant squid. The main problem for our Washington leaders is not really the content of the leaks. Nothing that has been leaked was fully unknown, but it was familiar to only a small group of civil libertarians and constitutional scholars (in spite of many studies) and could be denied. The usual opponents of the socio-political system were largely ignored and dismissed, until, that is, Mr. Snowden divulged documents that indeed proved that the NSA was snooping over the entire world and, in spite of scores of denials, on many if not all people living in the USA (we still do not know the full extent). The first reaction was indignation, but quickly the powers-that-be circled the wagon and diverted the story toward Edward Snowden, making it a spy novel about the usual hero-traitor found in a Hitchcock movie. The actuality, whose significance a few representatives and senators understood, was there to see, even if it was clouded by other summer stories (a coup in Egypt; a black kid murdered by a vigilante in Florida, the latter found not guilty; the 100th edition of the Tour de France; the birth of a Royal Baby named George in London; a sexting New Yorker running for mayor, etc.): The Fourth Amendment to the Constitution was/is under attack, as Manuel García and many other observers have pointed out. But it's getting worse.
In early 2011, Jeffrey Sterling, a former employee of the CIA who had been dismissed after filing a complaint about racial discrimination practices in the agency, was charged under the Espionage Act of allegedly leaking classified defense information (about a CIA botched operation against the Iran nuclear program known as Operation Merlin) to New York Times journalist James Risen. Risen eventually wrote a book in 2005, State Of War, in which he included the secret information about the failed operation. He was subpoenaed to testify and reveal the source of his information, which he refused, invoking his right under the First Amendment. The matter went to court and a lower court ruled that indeed Risen should not be compelled to reveal his source. The prosecution appealed the ruling. It was reviewed by the Fourth District Federal Appeal Court, which reversed the ruling this July 19, deciding that the First Amendment did not protect Risen in a criminal case except if the prosecution was showing bad faith. James Risen intends to battle the ruling all the way to the Supreme Court.
It can therefore be argued that the First and Fourth Amendments are being "tested" by ongoing US administrations. Some constitutional scholars are suggesting that even the Fifth Amendment could be at risk because a defendant could not claim the Fifth and remain silent if, to follow the Fourth Circuit Court reasoning, the case was about "national security" and secrecy. Whether one has any constitutional expertise (this writer has not), we should all worry about these legal developments, without, however, falling into paranoia. This is not 1984, Nazi Germany, the Soviet Union, fascism, and the ineluctable march toward tyranny, not even the control of hoi polloi plotting the demise of the masters of the universe and the end of capitalism. Leaving aside the perennial thirst for power from any state government in history and the merits, or not, of whistleblowers depending on time and circumstances, we are undoubtedly discerning a widening of the surveillance state in the past few decades, not only political but commercial, industrial, and intellectual. We tend to focus our attention on the actions taken by the government in the name of security, like for instance the attempts to obtain users' passwords from Internet service providers (algorithm, hash, and salt), or the scanning by the US Postal Service of both sides of the 160 billion items that are sent through the Post Office each year. We feel naked, powerless, having lost control of our basic right to privacy. Indeed, due to the digital age our societies have embraced this loss of privacy without having a clue about the consequences (we still do not) -- all in the name of security and convenience.
We have surrendered our privacy surreptitiously in the entire spectrum of our lives from the groceries bought at the supermarket, to our banking transactions, our credit cards, our driving record, our health background, any purchases we make, especially on the Web, our e-mail correspondence, our phone calls, mobile or land-based, the information we share on the ubiquitous social networks, our insurance policies, the Web searches we make, the Web sites and TV channels we visit, etc. Even our dwellings show up on Google maps, our exact location at any moment of the day can be pinpointed thanks to the GPS installed in the car or the smart or mobile phone, each key pressed on a keyboard of a computer can be registered. There is virtually little part of our lives that is not somehow computerized and multi-shared between the private and public sectors. Lots more ought to be researched and written about this facet of our much-weakened privacy. That's not all.
Add industrial, commercial, intellectual espionage, often known as the world of hacking. US universities are reporting over 100,000 attempts to penetrate their computer systems in any given day. The majority comes from China, with Russia behind, even Vietnam. Hackers, often linked to their respective governments, are looking for R & D projects. Corporations are facing constant snooping from their foreign competitors often aligned with their state authorities. Cyberwar is not uniquely a military, governmental affair. It has become the modus operandi of our digital age, which goes far beyond the war on terrorism. Hacking has turned into a business whereby hackers sell details of vulnerabilities about software or an operating system to private interests or to governments. They can create bugs and sell them to companies that can use them against their competitors; and of course, they can take control of one's computer in a matter of minutes. Any industrial plant that uses a computer control system (water treatment, oil and gas, power, car manufacturer, etc.) is at risk, and no one knows where this is going. Welcome to cyberspace!
Apparently the biggest challenge we face is our lack of understanding of the fast changing complexities at play. We tend to react emotionally according to our set of references and beliefs and seem unable to look at and analyze the whole picture. Instead of howling against the elites and the assumed black, Muslim dictator-to-be ("when you assume you make an ass between you and me") we could assemble a study and advisory group composed of a wide segment of the population, young and old, computer-savvy, constitutionalists, sociologists, philosophers and, yes, thoughtful (retired?) politicians that would look into the digital world as it is and as it has evolved so rapidly in recent years. Just one example: Try to define "unreasonable searches and seizures" (in the Fourth Amendment) in light of our brave new world that is moving on as we speak.
Meanwhile, the whistleblowers are not accomplishing much but their own demise, increased backlash against subsequent whistleblowers, and the tightening of the reigns on the rest of us.
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Gilles d'Aymery on Swans -- with bio. He is Swans' publisher and co-editor. (back)