Happy Ides of March! If you’re a Roman history buff like myself, you’ll recall that on this day in the year 44 B.C., the would-be Roman dictator Julius Caesar was slain on the floor of the Senate. Caesar’s death is often held up as a perennial warning for those tyrants who would seek to subvert republican virtues and governance. In the modern age, however, such tyranny is seldom limited to the whims and machinations of singular autocrats. Rather, the would-be Caesar of our day is more institutionally pervasive: the surveillance state.
In the spring of 2013, the American people were made aware of ongoing extra-legal surveillance programs masterminded by the Administration of President George W. Bush, perpetrated by the intelligence community, and ultimately perpetuated and expanded under the Obama Administration. These abrogations of the Constitutional protections afforded to American citizens have, unfortunately, continued even in the wake of their emergence into the light of the public forum. And even now, almost three years later, the battle for the soul of American democracy persists, most noticeably with the ongoing debate surrounding encryption.
Over the weekend, President Obama made his position on the encryption debate strikingly clear, firmly entrenching his Administration on the side of law enforcement. Of course the usual portmanteaus were on display: child pornographers, terrorists, and established precedence for law enforcement searches and seizures all rounded out the President’s contention that technology executives (see: Tim Cook) who take an “absolutist” position in this debate are just plain wrong. “This notion that somehow our data is different and can be walled off from those other trade-offs we make,” the President argued, “is incorrect.”
Some at Apple have suggested that if this case goes the FBI’s way, it’s a slippery slope to an era where law enforcement could turn on users’ iPhone microphones without their knowledge. Others suggest that such rhetoric is, at best, hyperbolic. And yet others, Congressional representatives in particular, have yet to stake out a strong position on the issues of the day. On top of all that, it now appears that the Department of Justice is eyeing WhatsApp as its next target in a debate long-thought resolved in the late 1990s. Encryption, however, is but one front in what can now comfortably be called the “Second Crypto War.” The FBI is now poised to become a deputized handler of the information being siphoned by the NSA.
Although it has long been suspected that domestic law enforcement has been using these intelligence streams for domestic criminal investigations, a recent article in the New York Times reports that this is now poised to become an open secret. As the Massachusetts ACLU pointed out in a recent blog post, the real terror of this development is that now,
FBI agents don’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes.
Unfortunately, it’s not just the FBI looking to capitalize on the NSA’s data collection. The DEA is also hard at work making sure non-violent drug offenders are equally subject to a constant violation of their Constitutional rights. This is yet more concerning when one considers the implications of a drug war that has already gone off the rails now being waged in ever-more secrecy. Eli Dourado, director of the Mercatus Center’s technology policy program, elaborated on the intersection of mass surveillance and the ongoing war on drugs in a Plain Text blog post last week. He makes an excellent point that seems to have been ignored in the larger debate on mass surveillance:
[T]he war on drugs creates a lot of unnecessary legal confrontations between the industry and law enforcement agencies. If Silicon Valley would forcefully lend its considerable political clout to ending the drug war, it could substantially reduce (though not eliminate) the demand for cooperation with government agencies.
Radley Balko echoes this sentiment in an article for the Washington Post, while touching on the DEA’s use of parallel construction as a means of bypassing Fourth Amendment protections. The surveillance state is now, more than ever, poised to completely abscond with what little remains of Americans’ rights in the post-9/11 era. Institutionalized surveillance has become the norm in our society. The Constitution once served as a bastion of protection against the potentially overwhelming power disparities between the state and the people. Now, those same rights that so many prior generations of Americans fought and died to defend and uphold have effectively been cast onto the ash heap of history, all in the pursuit of an illusory sense of security.
On this, the day of Julius Caesar’s bloody demise at the hands of his Senatorial colleagues, lets remember the words sic semper tyrannis as an epithet decrying the abuses we continue to suffer at the hands of the surveillance state. We no longer stand on the brink of the panopticon; we now stand in its very midst. Ideally we could just dispense of such a system by driving a dagger through its heart. Unfortunately, we have grown too complacent, too content, and too consumed by fear to make such an effort; and even if we could, the institutional incentives seem weighted against us.
But if there’s one lesson to be learned from the Ides of March, it’s this: that all tyrants invariably suffer the same fate. We should not despair, for just as Caesar met his end for his transgressions, so too will we one day free ourselves from the shackles of surveillance. It will be a long fight, but the rewards of freedom are worth a constant struggle. Sic semper panoptes.