The Man With the Yellow Legal Pad Watching You

Imagine yourself at the end of the day – mind fuzzy from eight hours of work – walking out of your place of work towards your car. You spot a man out of the corner of your eye sitting in one of the chairs in the lobby. He is relatively nondescript, dressed in a black suit, white shirt, and blue tie. You only notice him because as you were leaving he began jotting in his yellow legal pad.

Now imagine yourself barreling into your home with an assortment of grocery bags, tote bags, and maybe a child in tow. You feel a sense of calm as you smell the familiarity of home and know you can close the door to the world outside. But there is that man again. This time he has positioned himself in the corner, out of the high traffic areas. He glances up to register that it is indeed you and he begins jotting again.

If this was a real scenario no American citizen would stand for it. Yet, the NSA collects the details of Americans on a digital legal pad, Americans now know it, and are by and large fine with it.

NSA and Spying

For years, concerned citizens – many of them former intelligence officers – have been trying to get the word out about the NSA eavesdropping on its own citizens. William Binney, a former NSA intelligence official turned whistleblower, has been a vocal critic of the agency. James Bamford’s bestseller from 2008 The Shadow Factory, was a detailed narrative on the rise of the NSA in the wake of September 11. Bamford’s book was filled with first hand accounts of people who had worked in or alongside the NSA, detailing the many ways the agency had trampled on the privacy of American citizens. But it was the documents released by Edward Snowden in May of 2013 that made the biggest imprint on the national consciousness. Snowden’s documents forced journalists to cover the transgressions of the NSA and forced the Obama administration to address it.

Because of Snowden, the public is now aware of the depth and breadth of the programs run by the National Security Agency that collect our data. A quick browse of Wikipedia could inform the uninformed. For example, the PRISM program works with large intermediaries such as Google and Apple to collect user data (audio, video, text). Or, the Xkeyscore program reportedly allows the NSA to read anyone’s e-mails. The public is also aware of the NSA collecting the when, where, and to whom of our mobile phone conversations.

The “official” narrative is that the collection and analysis of any information on Americans is done with much oversight. Supposedly, Congress passes the legislation that makes NSA operations legal. They passed the Protect America Act in 2007 and the FISA Amendments Act in 2008 and again in 2012. Further, NSA actions are subject to judicial review – requests for wiretaps must be made to the Foreign Intelligence Surveillance Court (or FISA court). Sounds all well and good.

However news organizations and civil liberties groups have been painting a different, more accurate picture. Congress does not always understand the breadth and scope of the technology there are given the NSA authority to implement. Congress was not aware that they had given FISA the authority to collect data about Americans if that data collection occurred indirectly through surveillance of foreign targets. Congress had given the NSA legal authority to spy on Americans.

Furthermore, the relationship between the NSA and the FISA court is shrouded in secrecy. The NSA is a secretive agency. The court’s hearings and decisions are conducted in secret. This means there is no public debate about what the NSA is doing: a real shame considering that between 1979 and 2012, the FISA court approved 33,731 requests and rejected 13. Well over 99% of warrant requests were approved!

And so the real story is that through a combination of a compliant Congress and a rubber stamp FISA court, the NSA has placed all types of technologies onto our networks, and is scooping up information about us. Our privacy has been violated without our consent and we are being spied on.

Why Are We OK With It?

At this point, we are all aware of what the NSA has been up to. But what has been the public’s response? A report published in June of 2013 by the Pew Research Center for the People and Press, several weeks after the Snowden revelations, showed that the majority of Americans are just fine with the NSA’s behavior to prevent terrorism. The report stated that a majority of Americans say that investigating terrorism is more important than intruding on privacy, 62%. 56% say it is acceptable for the NSA to monitor our phone calls and 51% say it is acceptable for the NSA to read our e-mails.

These types of numbers get me to the crux of this essay. Why are Americans so comfortable with this affront to not only a basic right of unreasonable searches and seizures but to a core American value of freedom from government intrusion?

Two common explanations are that Americans think “there is nothing we can do about it” or they say “I’m not doing anything wrong anyway”. There are certainly some who take this stance with respect to their rights as citizens. Many of my students adopt this stance. They don’t yet fully understand or are fully invested in the Democratic process. As a practical matter they are more concerned with getting their lives started than with critiquing the most powerful government the world has ever known. Similarly, there are millions of Americans who have the more immediate concerns of providing for their families and taking care of their health. They just can’t muster (or even justify) investing interest in the topic. So for those people who use the responses “there is nothing we can do about it” and “I’m not doing anything wrong anyway”, they get a pass.

But for those groups who are invested in the political process they know better than to say “there is nothing we can do about it” or “I’m not doing anything wrong anyway so it doesn’t affect me”. These people (and shall we say corporations) run our country. They are the ones who invest in political campaigns and vote regularly. They know something can be done.

Indeed, bigger demons have been slayed in the past. The social movements that opened up opportunities to people of color, women, and homosexuals are some of the prime examples. I can also think of the many people and organization who brought notice to the unfairness of our drug laws as another. The idea that it doesn’t affect you doesn’t quite work either. Americans are very good at fighting for causes based on principles. Consider the man who stands out in front of abortion clinics and hands out pro-life pamphlets. Or, consider the woman who chains herself to a tree to prevent deforestation. The problem cannot be that we believe there is nothing we can do about it or that we don’t care because we are law abiding. There has to be another explanation.

A third explanation, probably the most compelling, is that Americans are willing to give up freedom for security. The Pew report I mentioned earlier says as much, with 62% of Americans choosing security over privacy. In order to be protected from terrorism, it is necessary for the government to monitor the ways in which potential terrorists communicate. It may be that in the process one of our rights – freedom from unlawful searches – will be suspended temporarily.

On the surface, this is to be the explanation. This is why we are indifferent to NSA spying. After all, we have given up freedom for security in so many areas of life already. In many large cities you can’t walk into a building without showing your ID – even public university buildings. When attending sporting events or boarding airplanes you cannot bring just anything, and your bags are searched.

But these are by and large voluntary activities. People are well aware that if they are not willing to give up their freedoms to do these activities, or have other options, they have alternatives. They can watch the football game at home instead of attend (they cost way too much anyway). I don’t believe Americans are willing to give up freedom for security when it really matters to them.

The main reason why we are okay with it NSA eavesdropping, why we are OK with nondescript agents sitting in the corner of our home jotting down our daily activities, is that we are simply not aware of how important the digital environment is and will be to our daily lives.

Our Lives Online

Our perceptions of the online world are rooted in the initial understandings of what the web was and would be. Remember the terms “information superhighway”? What about “virtual community”? We don’t use these terms as much anymore, but they are embedded in our thinking. The term information superhighway was applicable to the early versions of the web, where it was mainly for reading text on machines rooted to a slow, wired network. People communicated by sending each other messages through a chat application or by leaving messages on a discussion board to be read later. In this early era, it made sense to see the digital environment as primarily a place for sharing information, and any community that emerged from this sharing of information could only ever be “virtual”. You played online, but you did real things in the physical world of bricks and mortar.

Because we believe that what we do online is a lesser version of what we do offline – something not worth getting in a huff over – we do not see NSA eavesdropping as that serious. Our homes are private and intimate, and the communications we have there are worth protecting – but the clicks we make online, the words in our emails and texts, and the things we say on our mobiles – are not worthy. This is a flawed understanding of the power and ubiquity of the computer networks that compose our digital environment.

The quality of audio and video, the speed of communications, and the creativity of computer programmers have produced a digital environment in which the social interactions produced there trigger the same responses as they would in the physical environment. It would hurt the same to be dumped via Skype as it would to be dumped over coffee in a café. People can organize in real time via Twitter for a smart mob the same way that people in community centers rally before a protest march. Young people learn about the world and develop their identities via any number of social networking sites. Those identities are not fake. They are real and power the actions of those young people on through adulthood. Furthermore, entering into the digital environment is not voluntary. We have no real choice in using computer networks, no more than we have a real choice in taking paved roads. Those of us who do not use the Internet in their daily lives are few. And even those of us who do not use computers still are probably a part of the digital environment with their use of cell phones. Thirty years ago television was such an integral part of our lives that if someone chose not to buy a television and watch any of the popular shows were buying themselves a ticket to social isolation. It is the same with the digital environment in 2014.

And so, I believe that the reason why Americans are so unconcerned with NSA spying is because they don’t consider the degree to which our lives are online. This needs to change. By being so blasé about eavesdropping now, we are giving government the license to know all the intimate details of our lives. Those posts and tweets and emails and texts and videos and audio messages and search results and online purchases represent you. They should be private. Not shared with the man in the corner making note of them in his yellow legal pad.

Links of Interest


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