The Standards Blog

Groklaw, Domestic Surveillance and the True Measure of Risk

Monday Witness

U.S. Constitution, courtesy of the National Archives and Records Administration and Wikimedia CommonsThis week, Pamela Jones announced that Groklaw would shut down – this time for good. The loss of this pillar of legal journalism provides an appropriate occasion for reexamining whether our commitment to the liberties upon which America was founded still holds true. And also to consider whether pragmatism in policy development has surrendered to illogical political expediency.

PJ’s final post (titled Forced Exposure) explains her decision, and is well worth your while to read. In brief, she has concluded that since she and her sources can no longer rely on the privacy of their communications, Groklaw can no longer function.  And so a site that has been repeatedly recognized for the contributions that it has made comes to an end after a decade of service.

The loss of a single Web site should not be decisive in judging whether a given security program is or is not justified. But it does highlight the fact that when any degree of surveillance of all citizens is accepted, some degree of privacy is necessarily surrendered by all citizens as well. Leaving aside issues of constitutionality and due process (important though they certainly are), the threshold question that must be addressed is whether the anticipated security gains are expected to exceed the value if the civil liberties that are sacrificed in exchange?

To consider this important question, let us start by stipulating that the technical rationale for covert surveillance is valid. Since 9/11, America has spent hundreds of billions of dollars on visible security programs that are almost laughable in their ineffectiveness. No matter how many airport checkpoints may be provided with sophisticated screening devices, those that staff them are easily distracted. The border with Canada presents over a thousand miles of unguarded plains, forests and lakes across which fleets of ATVs and boats could cross undetected. On a nightly basis, despite a fortune spent on fences, sensors and armed guards, dozens, and sometimes hundreds, of hapless immigrants make their way on foot across our border with Mexico. Meanwhile, millions of containers enter through our ports, most of which pass through no security screening at all. Any terrorist capable of launching a devastating attack could surely circumvent such feeble defenses.

But spending yet more billions on physical defense would only incrementally improve security. There are simply too many ways for mayhem to be spread, too many points of possible entry, and too few ways to detect a threat. To give a single example, there is no system in place today that would detect the fact that someone arriving by car was carrying enough anthrax spores to spread a reign of terror throughout the country for months on end.

So in truth, if there is effective security to be achieved, it can likely only be achieved through covert data analysis, and more to the point, analyzing the data of a broad spectrum of – or even all – citizens, because there is no way to conclusively tell who might represent a risk and who may not.

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Does that, then, take us already to a conclusion?

The answer is no, because we have not yet given attention to how great the risk may be that we are trying to address. More to the point, we have not tried to be sure that we have properly identified what that risk really is.

So let’s ask that question.  Which is the real risk that is motivating the actions that government is taking?

•    A clear and present danger that Americans will be killed by terrorists

•    The risk to the careers of decision makers if a successful terrorist attack occurs

This question may seem purely cynical until we recall the hundreds of billions of dollars that are spent on obviously insufficient security methods.  Did the TSA apparatus make marathon watchers safer in Boston earlier this year, or did it only make it less likely that a terrorist would elect to use a plane in connection with an attack?  The answer is clearly the latter. The heads of no one rolled after the Boston Marathon bombing, but if another plane were to crash into an office tower, the howls of the party not in power would echo through the halls of Congress for months (remember Benghazi?)

Now let’s ask how many people have been killed by terrorists in all Western countries combined since 9/11. The answer is hundreds, much less thousands, let alone tens of thousands.

During the same time period, perhaps a hundred thousand Americans have died as a result of drunk driving, and more than that through the use of firearms. How many of those deaths could have been prevented had the NSA used the same surveillance techniques to identify those likely to drive while intoxicated, or to spray the cafeteria of a school with gunfire? 

The answer is likely tens of thousands. And yet there has been (we assume) no NSA program in place to save those lives.

The reasons why this is true are several, including the fact that Americans would not likely tolerate such a program. But why should we be so unwilling to sacrifice some degree of privacy to save tens of thousands of lives, when we are seemingly willing to tolerate an equal degree of intrusion to confront a threat that has been shown to be vanishingly small?

One answer is that fear and insecurity abate as we become used to a risk. Cars have been killing people for over a hundred years, and privately owned guns for more than that. We’ve simply absorbed the risks associated with these threats into the reality of our lives.

Another reason is that in order to abate the risk posed by guns and cars after relevant individuals had been identified, the government would need to take actions that would have noticeable impacts on individual citizens, many of whom would vigorously object. On the other hand, a loss of privacy through electronic surveillance oriented towards detecting terrorists, even after the existence of the surveillance program becomes public, is not likely to be condemned when the vast number of Americans would (rightly) assume that they will never be considered to be “persons of interest.”

Civil liberties tend to only be broadly appreciated when they have been lost. Unfortunately, citizens of many nations have learned that when they have been taken away, it is at best difficult to regain them, and too often, impossible.

America has a history of valuing civil liberties highly, and thank goodness this has been so. Where they have been compromised, it has almost always been during times of great national danger, such as during the Civil and World Wars. Each time that freedoms such as speech, assembly, security against unreasonable searches and seizures, and habeas corpus have been reduced, the balance has been rapidly restored after the danger has passed.

Not so in the current case, because while it is easy to declare a war on terror, it may not be so easy to declare a victory – even when it has been years since the last casualty has been suffered – because any later attack would give rise to a political disaster.

So it is that the closing of Groklaw should make us think about what we are gaining from our loss of privacy and security against government surveillance and related security programs. On the one hand, despite the occasional vague claim from the DHS, there is the lack of evidence that any meaningful number of potential attacks has been averted. On the other, there is not only our lack of privacy and the enormous costs of security programs, but the chilling effects on journalism and potential whistleblowers, and the potential for systemic or isolated abuses by those conducting the security programs in question.

It’s time that we looked at the true risks of terrorism objectively. Only then can we decide whether the risks to our civil liberties are a fair exchange. Today, I believe the facts tell us they are not.

It’s also time for us to tell our politicians that we’re willing to bear the risk of terrorism, but not the risk to our Constitutional rights. And it’s time our politicians listened.

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