The Death of Privacy: Mass Surveillance in the Technetronic Era
by Faisal Moghul
General Warrants – Contextualizing the Fourth Amendment.
man may in his cottage bid defiance to all the force of the Crown.
It may be frail; its roof may shake; the wind may blow through it;
the storms may enter, the rain may enter, – but the King of England
cannot enter; all his forces dare not cross the threshold of the
~ William Pitt,
Earl of Chatham (1763)
of colonial America is replete with incidents of abominable abuse
of power by agents of the Crown. One of the most effective means
of oppressing the colonies was through the use of Writs of Assistance,
commonly known as General Warrants, which gave British officials
a carte blanche to arbitrarily invade private homes and businesses
in search of contraband and seize any property with absolute impunity.
a Boston lawyer whose stirring denunciations of general warrants
as a violation of hallowed natural law principles enshrined in the
Magna Carta heralded him to prominence, regarded them as the "worst
instruments of arbitrary power" because they placed the "liberty
of every man in the hands of every petty officer" who "may
control, imprison, or murder any one within the realm." Arguing
before the Massachusetts Superior Court in 1761, Otis’ articulation
of the systemic despotism spawned by these writs foreshadowed the
ideological origins of the Fourth Amendment to the United States
house is his castle; and whilst he is quiet, he is as well
guarded as a prince in his castle. This writ, if it should be
declared legal, would totally annihilate this privilege. Custom-house
officers may enter our houses when they please; we are commanded
to permit their entry. Their menial servants may enter, may break
locks, bars, and everything in their way; and whether they break
through malice or revenge, no man, no court can inquire (emphasis
resistance to these much-reviled instruments of royal tyranny became
one of the embers that sparked the Revolutionary War, which culminated
in the codification of the Fourth Amendment as an enduring rebuke
to the Crown’s overzealous surveillance. Against the backdrop of
generalized suspicion, the founding fathers inserted this
provision in the Bill of Rights to prevent history from repeating
itself. If a man’s home is his castle, then the Fourth Amendment
is the mortar binding each brick that makes it an inviolable bulwark
against the prying eyes and ears of the government.
the fundamental truth -- the chief characteristic distinguishing
a free society from a tyrannical police state -- that the individual’s
right to privacy and freedom from arbitrary invasions cannot be
infringed, unless probable cause "exist[s] where the known
facts and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will
be found," Ornelas v. United States, 517 U.S. 690, 696
(1996). After having successfully prosecuted Nazi war criminals
at Nuremberg, former U.S. Supreme Court Justice Robert Jackson eloquently
reaffirmed the importance of this safeguard against unbridled governmental
search and seizure is one of the first and most effective weapons
in the arsenal of every arbitrary government. And one need only
briefly to have dwelt and worked among a people possessed of many
admirable qualities but deprived of these rights to know that
the human personality deteriorates and dignity and self-reliance
disappear where homes, persons and possessions are subject at
any hour to unheralded search and seizure by the police (Brinegar
v. United States, 338 U.S. 160, 180-81 (1949)).
Attrition -- From Public Safety to National Security.
And then came
the "War on Drugs."
all of America’s problems on drugs, Nixon’s "tough on crime"
rhetoric was portrayed as a necessary step to rid society of nefarious
drug dealers and drug-related crimes, just like agents of the Crown
sought to justify their abuse of general warrants under the guise
of rooting out "smugglers" of tea and molasses.
But the hardline
policies of Nixon’s "law and order" administration, far
from being an elixir in terms of stopping drug use or crimes, certainly
initiated the process of slowly, but inexorably, eroding the fabric
of the Fourth Amendment over the course of the next fifty years--
from increased canine searches at "drug" checkpoints to
militarized SWAT team raids of homes of "suspected" drug
dealers, from vague drug-courier profiles that allow law enforcement
to primarily target
racial minorities to the malicious
application of asset forfeiture laws to confiscate
the life savings of the innocent. Sadly, however, the death
knell for the Fourth Amendment was yet to come.
And then came
the "War on Terror."
damage to our constitutional rights with the rise of the omnipotent
national security state since 9/11 has eviscerated whatever remained
of the Fourth Amendment.
high-profile NSA whistleblowers, Thomas
Drake and William
Binney, have revealed the harrowing details of this Big Brother
surveillance scheme that, in their own words, involves monitoring
conduct not tethered to any suspicious or illegal conduct whatsoever,
dossiers on every American, be it senators, congressmen, or
even generals. The technology of surveillance has evolved to a degree
where the government is monitoring (in real time), collecting and
storing vast amounts of data on every citizen -- "every
phone call, purchases, email, text message, internet searches,
social media communications,
health information, employment history, travel and student records."
This has turned America into the most
surveilled society in history, even more than the Germans under
Hitler or the Russians under Stalin.
The twin wars
on drugs and terror have coalesced to reenact the same state of
generalized suspicion which, both historically and practically,
is the enabler of a Soviet-style police state mentality. Such surveillance,
moreover, is a throwback to the same conditions that the founding
fathers rebelled against, and in violation of the same natural law
principles enshrined in the Magna Carta-- which predates the US
Constitution-- that James Otis so eloquently defended in his speeches
Castle to "Turnkey Totalitarian State."
More than thirty
years ago, Senator Frank Church, the chairman of the Church Committee,
after investigating the widespread abuses perpetrated by the FBI
under the secretive and illegal COINTELPRO, forewarned the nation
of the dangers of forsaking essential liberties for temporary safety:
National Security Agency's] capability at any time could be turned
around on the American people, and no American would have any
privacy left, such is the capability to monitor everything: telephone
conversations, telegrams, it doesn’t matter. There would be no
place to hide. [If a dictator ever took over, the N.S.A.] could
enable it to impose total tyranny, and there would be no way to
remorseless modern-day engine of surveillance – the electronic general
warrant – has been turned against the American people. As we have
now come to learn, the purpose of all-encompassing surveillance
is not, as we were first told, to ferret out terrorist or criminal
activity. Rather, the aim is to annihilate any sort of political
opposition to the powers that be.
Binney, himself a target for speaking out against the illegal spying
on the American people, states, "If you ever get on their enemies
list, like Petraeus did, then you can be drawn into that surveillance."
In such a scenario, Binney explains, the stored information on that
particular individual – and remember, they have every conceivable
piece of information on everyone – will be used to target, blackmail
or intimidate that person.
Take the example
of former high-level executive at the NSA, Thomas
Drake, who upon exposing the government’s blatant disregard
for the Fourth Amendment, was charged under the Espionage Act (the
case ended in an eventual misdemeanor plea bargain). In
his own words:
realize the extent to which we’re surveilled in many, many ways.
The extent to which vast amounts of our transactional data in
all forms – electronic forms, your emails, your tweets, bank records
and everything else – are all subject or suspect in terms of surveillance.
It raises the specter of the rise of so-called "soft tyranny."
It raises the specter of you being automatically suspicious until
you prove that you’re not; the specter of a universal and persistent
wiretap on every single person [...] what happens if they don’t
like you? What if you speak ill will against the government? What
if you say something they consider disloyal?...
has become our state religion, you don’t question it. And if you
question it – your loyalty is questioned.
truth to power is very dangerous. The power elites, those in charge
don’t like dirty linen being aired. They don’t like skeletons
in the closet being seen. Not only do they object to it, they
decide to turn it into criminal activity. Remember, my whistle
blowing was criminalized by my own government (emphasis added).
in the highest positions of power, Thomas Drake has now been forced
to earn his livelihood by working at an Apple store. When society
descends into collective insanity, when the apathetic masses fail
to realize the dreaded consequences of empowering the all-powerful
state with a blank check drawn against their own civil liberties,
then the only people with the courage to speak truth to power are
demonized in the most diabolical ways.
The Death of Privacy And the Technologies of Control.
be ironic if, in the name of national defense, we would sanction
the subversion of…those liberties…which make the defense of the
nation worthwhile" (US vs. Robel, 389 US 258, 264, 1967).
The most common,
and perhaps most deceptive, argument marshalled in favor of government
spying is that if people aren’t doing anything ‘wrong’, then they
should not worry about such surveillance. This ‘not-doing-anything-wrong’
argument is a classic red herring, for if an individual is not
doing anything wrong, then the government has no business
spying on that person in the first instance. As detailed above,
this is exactly what the Fourth Amendment was designed to
prevent – a state of total generalized suspicion where every person
is ‘guilty until proven innocent.’ William Binney also refutes this
argument by observing: "The problem is, if they think they’re
not doing anything that’s wrong, they don’t get to define that.
The central government does" (emphasis added). In other
words, a person’s subjective opinion of ‘right’ and ‘wrong’ is irrelevant;
what matters is that the government believes the person’s
actions are wrong.
for mass government spying also typically invoke the ‘necessary
evil’ doctrine – an old Machiavellian ruse – to justify this act.
They argue that illegally eavesdropping on the populace, while not
good in itself, is necessary to counter the existential threat terrorism
poses. They claim that the methods of modern-day terrorism are brutal
and unconventional, seeking to inflict mass casualties through horrific
means; its nature is irrational, perpetrated by individuals who
hold no fear of death in destroying others; its form is impenetrable,
consisting of a shadowy network spread across the globe. The danger
is ever present, threatening to strike anywhere, anytime. Consequently,
the government must be able to exercise "all necessary means"
to protect its citizens.
Such an argument,
while tempting for the unaware, suffers from historical amnesia.
The alluring language of "safety" and "security"
has, historically speaking, always served as a convenient excuse
for the executive to discard core liberties for the ostensible purpose
of pursuing some higher purpose -- in this case, "national
security" -- that renders all other considerations non-issues.
of emergency, the instinct of self-preservation naturally impels
us to seek the direction of the powers that claim to protect us.
The omnipresent fear of the unknown predisposes us to trust the
government that assures security conditioned on an absolute grant
of what John Locke calls "undoubted prerogative." The
constant, unchanging, and ceaseless mantra of the power-elite is
‘trust us, and we will protect you from the barbarians at the gate.’
The demand seems reasonable; its logic, impeccable. Destabilized
by our collective vulnerability and driven by the spirit of patriotism,
our inclination is to comply and surrender our rights.
has forever remained the same; so too has the final result, which
always stands in stark contrast to the initial promise. The now
absolute authority that originally promised to safeguard our liberties
uses that same power to subvert what it claims the threat seeks
to destroy – our way of life and hard-won freedoms. The Orwellian
nature of the scheme – selling ‘control’ in the name of ‘security’
– is slow to crystallize in our collective consciousness. We do,
finally, grasp the the fallacy of rendering blind allegiance to
absolute power, but it is already too late.
Lincoln unilaterally suspended the writ of habeas corpus in 1861
under the pretext of fighting the Civil War because "public
safety" required it, an order that resulted in the imprisonment
persons" without any trial. President John Adams insisted
that the Alien and Sedition Act was essential to protect Americans,
but he abused that power by using it to suppress dissent in the
press. Similarly, President Woodrow Wilson advocated for the necessity
of the Espionage Act to save American lives, but he only used this
law to prosecute thousands of American pacifists who spoke out against
American involvement in World War I. In the same vein, President
F.D. Roosevelt cited the exigency of World War II to pass Executive
Order 90266, which he utilized to arbitrarily imprison thousands
of innocent Japanese-American citizens. And finally, in the aftermath
of the tragedy of 9/11, President George Bush assured the American
public that the NSA’s wiretapping program was only meant to identify
and capture terrorists;
operandi of this scheme of near-total surveillance of ordinary Americans
is to streamline and perfect the technologies of controlling the
gullible masses. This blueprint was designed a long time ago, long
before 9/11 provided a feeble pretext. Elite insider and the founder
of the Trilateral Commission, Zbigniew Brezenski, apprised us of
this ultimate goal in his 1968 article America
in the Technetronic Age:
At the same
time, the capacity to assert social and political control
over the individual will vastly increase. As I have already noted,
it will soon be possible to assert almost continuous surveillance
over every citizen and to maintain up-to-date, complete files,
containing even most personal information about the health
or personal behaviour of the citizen, in addition to more customary
data. These files will be subject to instantaneous retrieval by
the authorities (p.21) (emphasis added).
fathers risked death in opposing the The King’s general warrants.
They rebelled against the yoke of monarchical despotism to establish
a constitutional republic guided by the principles of separation
of powers and checks and balances. Today, the executive wields electronic
general warrants to spy en masse, or to target
"enemy combatants" for assassinations as part of a
"disposition matrix" without a shred of due process.
A man’s home
is no longer his castle, and we are all poorer for it.
Moghul [send him mail]
is an attorney.
© 2013 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.