So, when was up at Netroots Nation last week, I sat in on a great panel that focused on domestic surveillance issues, mostly from the perspective of the American Muslim community, but also considering the issue more generally.
Several thoughts occurred to me.
First, there was a general frustration with the level of scrutiny that have been placed on the American Muslim community since 9/11. I think this frustration is quite fair, though I think we need to be careful not to throw the baby out with the bathwater here. Basically, I think the issue ought to be whether the level attention paid to American Muslim is proportionate with the “threat” posed by that community.
See, I don’t want to make some sort of general argument that domestic surveillance is always bad. I’m not, as a practical matter, a civil libertarian absolutist. So for me, the issue isn’t that surveillance, the use of informants, and so on is inherently bad. But rather it strikes me that we’ve almost certainly gone overboard with the Muslim community specifically. The reality is that there have been very few acts of acts of terrorism that can be defined as “domestic radicalization.” And there have been even fewer than suggest deliberate recruitment from outside.
What we have seen, however, are a large number of disrupted “plots” that really bear little relationship to actual plots and look a whole lot like entrapment. I’ve written about this before, but at least 90% of the disrupted plots reported in public seem to have been driven by informants and agents provocateur very early in the process. The would-be terrorists are often hapless loudmouths who, and I can’t prove this of course, would likely have done nothing if not for prompting and encouragement from federal agents. But don’t believe me. Use this handy list from Heritage and just Google the cases.
Second, this perspective, i.e. the need for a balancing test, rather than a blanket support or prohibition, does keep the door open to (a) reverse course if evidence of radicalization does emerge and (b) allow us to accept the legitimacy of previous infiltration efforts that I would argue were proportional. I speak, for instance, of the FBI’s efforts to investigate and infiltrate the Ku Klux Klan. But, a little perspective is in order. KKK attacks in the 1950s and 1960s were much more prevalent — by at least an order of magnitude – than any radicalism in the Muslim community. Indeed, though statistics seem surprising hard to find, it is almost certainly more like two or three orders of magnitude. We can count the number of “domestic radicalization” cases in the American Muslim community leading the violence on our fingertips. There were at least hundreds of such KKK cases. Again, lots of caveats — incomplete numbers, wide variation in definitions of terrorism, debates over how to interpret “hate crime” stats.
I could be convinced otherwise, but at least for now, my assessment is that COINTELPRO against the Klan was warranted. What some have called COINTELPRO 2.0 against American Muslims likely isn’t.
Third, another theme of the panel was a general outcry about domestic collection — under FISA, under other still-secret programs, etc. Now, I am going to get myself yelled at by Marcy Wheeler for this, but here goes…
My view is that we should focus less on a limited collection regime, and more on a limited-use regime. In other words, the smart agenda for civil libertarians should be to enact strict limits on how information is used rather than trying to prevent its collect. (I know this is not a novel argument, but I’ll still walk through my thinking.) Why?
(1) I think a limited collection regime is untenable due to technology. I am paraphrasing Julian Sanchez’s point about “piracy” here, but just as with copying, the same is true about surveillances and collections: It is now easier than ever from the government to collect on us… but it is also harder than it ever will be in the future. As more and more of our communication is digitalized, and as storage and computing power continue to increase, it will continue to be easier for the government to collect on all communications. Laws that try to regulate in the face of giant, structural changes tend to be ineffective, and I think this is the case here as well.
(2) Why should Google have all the fun? The reality is that “privacy” as traditionally understood is dead. It is likely dead in the form of government collection, but we know it is dead in the form of corporate collection. Unlike conservatives, I don’t trust large corporations more than I do the government. But we already allow corporations to track us extensively. Emails are scanned and we get targeted ads. All of our online purchases, tracked. Grocery store shopper cards. Credit cards. Everything is not only scanned, but duplicated, backed-up, sold, and saved. All of those are theoretically “opt-in” systems — which then meet relatively weak Fair Information Practices standards. But are they really? Yeah, you can live in a Unibomber shack to avoid it, but anyone hoping to live a normal life in the modern world has to opt-in.
(3) Most of what we want to keep private, we only want to keep private because we’ve always kept it private. Think about it. We like privacy because we’re all in the closet about something. Whether it is casual drug use, or sexual kinks, or a fetish for expensive shoes, or alcohol abuse, or, in my case, my bizarre obsession with prison movies, we relish privacy because we’d be embarrassed or shunned, or fear we would be, about something. But look, the answer isn’t to never post a drunken pic on Facebook. The answer isn’t to stay in the closet. The answer, if we’ve learned anything from the Gay rights movement, is that staying in the closet only empowers those who would use information to blackmail or blackball others.
Think about drugs. In 1987, Douglas Ginsburg had to withdraw his nomination for the Supreme Court because he’d smoked pot. Bill Clinton had to claim he didn’t inhale. Finally Gore just admitted he’d smoked. Obama has admitted to pot and more. Now the reaction is, basically, BFD. We are currently in a the midst of an on-going mini-hysteria over things like Facebook pictures… but please, if we’re only going to hire people who never posted a stupid pic or tweet in the future, we’re going to have a lot of people of out work. Sooner or later, that is just going to go away.
But that said, there is still a danger of improper government use of collected material, and there we can make a difference. We can work to mandate how collected information is used to make sure that it isn’t misused. That it isn’t used for fishing expeditions or as part of routine background checks. But actually, the mechanics of this are difficult, and the reality is that there are a lot of ways to misuse information once it has been collected. But the point is, I think the collection issue has, essentially, been overtaken by events and technological change. We now live in a collection society, and the question is, what do we do next? Rolling back the clock is certainly not an option.
Anyway, a really thought-provoking panel. A quick shout out to the organizers and participants: Zahar Billou (@ZahraBillou), Shahid Buttar (@BORDC), Cyrus McGoldrick (@CyrusMcGoldrick), and Linda Sarsour (@lsarsour). Rose Regina Lawrence was also on the panel. She’s a proud anarchist organizers (an amusing title if you ask me), but does not have a twitter handle that I can tell.
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