Hearing about
the news at home from foreign sources can be an interesting experience, as I
discovered earlier this year when Edward Snowden leaked his story about massive
electronic surveillance by the United States’ National Security Administration.
At the time, I was finishing teaching a study-abroad course in Vienna, and my
information about the surveillance scandal thus came primarily from Austrian
(and later, while traveling, Swiss and German) newspapers. Two things struck
me. One was the immediate and high level of interest in the story. About a week
or so after the news broke, as I was traveling by train from Vienna to Bern, I
fell into conversation with the gentleman sitting across from me, an orchestra
conductor. When he learned I was American, the first words out of his mouth
were, “So, what do you think about this huge surveillance program your
government is running?” This was not just an American scandal; it was of
profound concern to many Europeans also.
The
second thing that struck me was that the European level of interest not only
seemed high, it seemed even higher than that in the United States. Perhaps this
was in part due to greater feelings of vulnerability among Europeans, who,
unlike American citizens, could not hope to exercise much influence on future
debates over American policy. It was clear also that many Europeans—especially
in Germany—felt a sudden sense of betrayal: their powerful ally and friend
spied on them just as it did on everyone else. But almost every news article I
read commented specifically on the low levels of interest and outrage among
Americans over the revelations. Americans, it seemed, were taking this in
stride, either assuming that their government had been engaged in such surveillance
all along, or even relieved to learn that it had, or at least confident that it
would not abuse its power. News reports gave off a certain tone of resignation
on this score: Europeans could not do anything about American electronic
espionage, and Americans, alas, would not.
Now
perhaps these reports exaggerated the degree of American indifference. I was
not in a position to judge. And concern among American citizens did seem to
increase over the course of the summer, as new revelations about NSA excesses
appeared on an almost weekly basis. But in light of the amount of data being
collected by the government about American citizens, one might have expected
more anger among citizens, perhaps even a few political heads rolling. The
details of NSA operations are fuzzy, but we do know that they collect
“metadata” on most telephone calls made in the US (i.e., the numbers of the
phones making and receiving the calls, the calls’ location, and their
duration); huge quantities of Internet traffic, which is intercepted and
temporarily stored for filtering and analysis; e-mail and social media posts
for a significant but unknown number of people; and the content of phone calls
for those people (again, the number is unknown) who have been identified as
intelligence “targets.” Because the government may collect additional
information on these targets, their phone data leads out into networks of
others with whom they have contact, potentially including a great many people.
For much of the information collected, the NSA does not require a warrant. And
there is at least some evidence to suggest that the NSA is moving toward a
system in which they simply collect and store as much Internet traffic as they
can.
Where,
as they say, is the outrage?
As I puzzled
over this, I found myself thinking about a case I often teach in Constitutional
Law, class discussions of which never fail to surprise me. In 1990 the Supreme
Court decided the case of Michigan State Police v. Sitz (496 US 444), in which
the Court upheld the state of Michigan’s program of sobriety checkpoints to
combat drunk driving. Under the program, Michigan police would set up
checkpoints, typically at night, on selected roads and would then stop all
vehicles passing through the checkpoint. If a driver showed signs of
intoxication, the officer would then direct his vehicle to the side of the road
for further tests to determine whether or not to make an arrest. These
checkpoints were challenged as violating the Fourth Amendment’s protection
against unreasonable searches and seizures. The Court resolved the case by
balancing the state’s interest in combating drunk driving against the degree of
intrusion on privacy suffered by motorists at the checkpoints. Judging the
former to be substantial and the latter minimal, it upheld the program.
Although
there is plenty of competition for the title, and others will no doubt have
their preferred candidates, I have always regarded this outcome as the most
obviously wrongheaded Court decision I know. If the police set up a checkpoint
and just stop everyone who passes by, it seems patently obvious that these are
not reasonable searches. Indeed, they are by definition unreasonable: there is,
literally, no reason for them. There may, of course, be a reason why the police
decide to erect their checkpoint at some particular location, perhaps along
some county road with a reputation for alcohol-related accidents. But that does
not provide a reason for stopping me, that is, for stopping any particular
driver. Even if it is true, as the Court argued, that these stops are not
terribly intrusive (a claim I am inclined to challenge—how do you feel about
being stopped by the police on a dark road at night?), that does not supply a
reason for stopping or searching any individual driver. As Justice Brennan
wrote in a fine dissent in the case, “Some level of individualized suspicion is
a core component of the protection that the Fourth Amendment provides against
arbitrary government action.”
While
it is obvious to me that this case was wrongly decided, this has never seemed
obvious to my students. The first time I taught it I was utterly astounded that
not one student out of a class of a dozen seemed to think there was anything
wrong with the decision at all. On the contrary, they all seemed rather surprised
that I felt strongly about it. And student reactions have remained consistent
over the years. I have not yet succeeded in working up any outrage in them over
this case! That first group was about a decade ago, so these were students who
would have grown up with things like mandatory drug testing regimes for school
athletes or ubiquitous security cameras. Thus they were perhaps more accustomed
than I to a world in which authorities at various times and for various reasons
could access details about their private lives without their consent. Still,
these students would not yet have been accustomed to sharing all the details of
their private lives on Facebook, Twitter, and the like, or to a world in which
practically everybody walks around with a pocket phone capable of photographing
anything, any time, and immediately posting it online for all the world to see.
It seems unlikely that people’s expectations of privacy today are higher than
those of my first con law class ten years ago.
As
revelations about the extent of NSA surveillance operations have mounted,
citizen concern does appear to have increased, but the response nevertheless
remains muted. The similarities to the Sitz case are suggestive. In both cases,
authorities, out of a concern for public safety, stop all vehicles (vacuum up
all electronic communications) passing through a certain point, without a
warrant, or consent, or the “individualized suspicion” that Brennan pointed to
in his Sitz dissent. (Even the additional information that can be gathered
about those identified as “targets” involves evidential standards lower than
those necessary to obtain a normal warrant.) And in both cases, the public—perhaps
happy to be protected against harm—shows only modest concern. I suggest that
there are a few lessons to be learned here.
(1) Hobbes was right. Almost four hundred years ago, Thomas Hobbes, in his Leviathan, argued that the
first duty of governments was to protect their subjects. People would submit to
and obey a government that could ensure basic security; a government that
proved unable to do so could not expect (and was not entitled) to retain its
subjects’ allegiance. People’s greatest fear, Hobbes argued, is fear of violent
death. More than anything, they want their lives not to be “solitary, poor,
nasty, brutish, and short.” And so they demand a power sufficient to protect
them. The modern West has enjoyed so much liberty and prosperity that it is
easy to forget this basic fact. But presidents know it. Both Bush and Obama,
for all their differences, have understood the importance of not allowing
another 9/11 on their watch. The public demands security and will sacrifice a
great deal of liberty for it. And as Hobbes understood, this desire for safety
is a force tending to concentrate tremendous power in the hands of any
government that can satisfy it.
(2) Tocqueville was also right. Tocqueville concluded his classic study of American democracy with several
chapters pondering “what sort of despotism democratic nations have to fear.” He
did not expect democracies to suffer the kinds of obvious, brutal despotism
nations had known in the past, the tyranny of the rack and screw. But he did
fear that their love of a calm, predictable life allowing a steady accumulation
of wealth and comfort—the house in the suburbs, the two-car garage, the iPhones
and flat-screen televisions, with a Whole Foods Market a ten-minute drive
away—might lead them to submit to a new kind of despotism, “servitude of [a]
regular, quiet, and gentle kind.” In particular, a government that could
protect their comfortable lifestyle would have a free hand to accumulate ever
more power without citizens objecting to it:
[T]he increasing love
of well-being and the fluctuating character of property cause democratic
nations to dread all violent disturbances. The love of public tranquillity is
frequently the only passion which these nations retain, and it becomes more
active and powerful among them in proportion as all other passions droop and
die. This naturally disposes the members of the community constantly to give or
to surrender additional rights to the central power, which alone seems to be
interested in defending them by the same means that it uses to defend itself.
We
should not underestimate the way in which this kind of habituation over time
leads us to accept ever greater infringements on our liberties, to take for
granted a world in which the authorities (and others) know or can easily find
out whatever they wish to know about us, and thus in which the very concept of
an “unreasonable search and seizure” gradually loses meaning. There is a line
of descent to be traced from sobriety checkpoints to the online world of
Facebook to NSA surveillance.
(3) Lessons from Luther. Despite polling data showing negative opinions about or low levels of
confidence in politicians, at a basic level Americans nevertheless retain a
fair amount of trust in their government. They believe that the NSA really is
working to protect us against security threats (as it surely is), and they
don’t really expect it to abuse its growing power or, if it does, they expect
the abuse will be the exception rather than the rule, will be corrected, and in
any case is better than some terrorist setting off a bomb in one of our cities.
This is all no doubt true, and certainly we are fortunate to live in a country
where we need not routinely expect the worst of our rulers, one far removed
from the world of Hobbes or, to pick a more contemporary example, Bashar
al-Assad. But perhaps we might still want to learn a lesson or two from Luther
as well. “[S]ince the beginning of the world,” Luther warned in his essay on
“Temporal Authority,” “a wise prince is a mighty rare bird, and an upright
prince even rarer. They are generally the biggest fools or the worst scoundrels
on earth; therefore, one must constantly expect the worst from them and look
for little good....” With our system of separated powers, checks and balances,
and federalism, we have taken more precautions against these fools and
scoundrels than Hobbes did. But this may lull us, as Tocqueville feared, into a
false sense of security. We would do well to remember that political rulers
exercise, first and foremost, power. They are—Luther again—“God’s executioners
and hangmen.” If these executioners and hangmen want to know the details of our
private lives, perhaps we should make them work a little harder for it than the
NSA appears to be doing these days.
Peter Meilaender is Professor of Political Science at Houghton College.