In early 2012 when the news first went mainstream that the NSA was building its “Spy Center” in Utah, public reaction was much closer to Area 51-esque skepticism than the warranted level of alarm. However, recent events show that we can barely go a week without another accusation of the National Security Agency abusing its mass surveillance powers. Critics are blaming the Feds. The Feds are blaming the realities of the Digital Age. Me? Well, I’m blaming all of us.
‘Mass surveillance’ is the legitimized monitoring and data mining of people, governments, and businesses across the globe by the United States federal government. Ostensibly, its purposes range from furthering domestic intelligence and ensuring national security, to essentially whatever reason the NSA provides on any given day. So when it comes right down to it, mass surveillance means spying. Nothing new, right? Government agencies all over the world have used clandestine surveillance efforts to gather data for decades. So why the hysteria? Two words: the Internet. Per usual, the federal government is exploiting the lag between law and technology to further an allegedly altruistic agenda, while sacrificing basic civil liberties.
A quick and dirty breakdown of pre-Internet, U.S. surveillance policies: Regularly conducted by the FBI and/or CIA, domestic surveillance was typically subject to Fourth Amendment standards requiring a valid warrant. In contrast, overseas surveillance maneuvers were usually performed by the NSA and had very few restrictions. The veritable free-for-all of foreign intelligence operations was likely a result of the extremely covert nature of the surveillance, nonetheless, the NSA’s tactics weren’t questioned. Cut to the new millennium, where that distinct line separating foreign and domestic surveillance policies has been blurred into obscurity by the evolution of electronic communication and transactions. Intelligence data shows that millions of foreign citizens access American-based online services on the regular basis. The intermingling of foreign actors and U.S. citizens is unavoidable as the Internet is globally accessible. Taking advantage of this inevitability, the NSA is trying to have its cake and eat it too. Despite the potential for gross infringement of domestic privacy rights, the NSA maintained that flexibility was a key element in effective mass surveillance, but that Americans’ privacy was not at stake.
As much as we wanted to believe the NSA’s scout’s honor claiming to preserve domestic privacy rights, any benefit of the doubt was obliterated this past June when whistleblower, Edward Snowden became a household name. Snowden, a former NSA employee, took to the press and leaked classified information pertaining to the government’s mass surveillance operations. Snowden’s disclosures detailed the NSA’s tendency towards playing fast and loose with the U.S. Constitution, with certain intelligence programs teetering dangerously close the edge of legality. Within weeks of Snowden’s exposé, dozens of news stories surfaced alleging even more egregious abuses by the NSA’s analysts, ranging from allegedly inadvertent administrative oversights to willful violations for personal gain. As expected, the NSA came to the plate trashing Snowden and pledged to “review” the other allegations for intentional abuses, all the while guaranteeing that “most of the cases didn’t involve communications of Americans.” Suddenly I’m much more hesitant to take their word on that. How about you?
Honestly, I’ve always employed a healthy dose of skepticism when approaching statements and policies issued by the Feds. But all conspiracy theorist tendencies aside, all three branches of the federal government have repeatedly forgone the privacy rights of U.S. citizens in the name of mass surveillance. What’s even more unsettling is that such destructive tactics have obviously been occurring long before Snowden blew the proverbial whistle. For over a decade, federal agencies have executed a slow and steady expansion of their surveillance authority thanks to that legislative gift that keeps on giving: the PATRIOT Act. Each presidential administration since 2001 has exploited the notoriously controversial law to serve their respective political agendas, all under the auspices of ‘If you aren’t doing anything wrong, then don’t worry about it.” Overly invasive NSA surveillance programs like PRISM and XKeyscore undermine the fabric of public discourse, but were the inevitable progeny of knee-jerk reaction legislation like the PATRIOT Act.
The NSA continuing such expansive surveillance on its own people – especially with its current lack of legitimate oversight and public accountability – will undoubtedly result in a self-censorship backlash never experienced in the Information Age. Edward Snowden fled the U.S. as a fugitive and was forced to seek asylum in Russia. Journalists and publications involved in exposing the NSA’s compliance indiscretions are feeling the effects of intimidationtactics by law enforcement across the globe. The chilling effect of simply knowing that the NSA may be logging every key stroke, monitoring every email, and storing every credit card transaction, cannot be understated. Blogs shutting down, social media tightening the leash on user posts, etc. The true victims of NSA overreach are the unwritten books, the discarded film productions, the deleted blog posts. How many words will not be spoken, now that the world is aware of this behemoth information gathering machine? How is the average U.S. citizen supposed to reconcile fundamental American notions of freedom of press and speech with this Orwellian climate of fear? The chilling effect is even more pronounced when erotic speech is at issue, which has lived in the shadow of government censorship since its inception.
What seems to be happening all too frequently lately is the call to the public to rally against censorship at the hands of a supposedly democratic government. We saw it on January 18, 2012 (Internet Freedom Day) during the mass blackout of websites across the Internet in protest of proposed U.S. laws expected to harm online freedom. Will American citizens speak out against NSA spying abuses, and demand real accountability? Stopwatching.Us is a nonpartisan public coalition comprised of dozens of public advocacy organizations, gathered together for the purpose of stopping the chilling effect on free speech occurring at the hands of the NSA. On October 26, the twelve year anniversary of the signing of the PATRIOT Act, the Rally Against Mass Surveillance will occur in Washington D.C. The Stopwatching.Us coalition having already issued a letter to Congress voicing its concerns, is using the rally to call on the federal government to hold the NSA accountable for its questionable surveillance operations and just as importantly, reform the laws that supposedly permit such operations. With over half a million signatures on its petition reflecting the same demands, I’m cautiously optimistic that the anti-censorship lightning might strike twice thanks to the lobbying efforts of Internet freedom advocates like the EFF, ACLU, Public Knowledge, CDT, and many others. That said, a federal agency like the NSA is a force to be reckoned with, but that permanent role as Goliath in a fight to preserve domestic privacy does not place them above the law.
Government operations regulating communication in the Digital Age will always require that delicate balance between privacy, security and freedom. The NSA’s current surveillance operations forego the other two pieces of the puzzle in the name of national security. Sacrificing privacy and freedom, regardless of the reason in doing so, inevitably leads to censorship. The threat of “terrorism” pales in comparison to the threat of a government that has abandoned fundamental principles of due process, privacy, and free expression. The government of the people must decide how much privacy we are willing to sacrifice. The world is watching as Americans decide whether we will remain the home of the brave, or become the government shelter of the weak.
Larry Walters has been on the forefront of defending the adult entertainment industry for over 20 years, and has defended numerous high profile obscenity cases for adult site webmasters. He operates Walters Law Group (www.FirstAmendment.com) which focuses on Internet law, First Amendment issues and intellectual property.