Peggy Noonan has a great column in The Wall Street Journal about the domestic spying at the National Security Agency (NSA) that, it turns out, may have been a little broader and a little more illegal than previously suspected. The Washington Post reported yesterday that new documents and an internal audit indicate that NSA “has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008”:
The documents provided by Snowden offer only glimpses of those questions. Some reports make clear that an unauthorized search produced no records. But a single “incident” in February 2012 involved the unlawful retention of 3,032 files that the surveillance court had ordered the NSA to destroy, according to the May 2012 audit. Each file contained an undisclosed number of telephone call records.
One of the documents sheds new light on a statement by NSA Director Keith B. Alexander last year that “we don’t hold data on U.S. citizens.”
Some Obama administration officials, speaking on the condition of anonymity, have defended Alexander with assertions that the agency’s internal definition of “data” does not cover “metadata” such as the trillions of American call records that the NSA is now known to have collected and stored since 2006. Those records include the telephone numbers of the parties and the times and durations of conversations, among other details, but not their content or the names of callers.
Noonan, in light of this new information that we are actually being surveilled — intentionally or not — by our government, poses the question: What does this do to our collective character as free Americans?
The answer she presents is an unpleasant one. Using an anecdote about 80-ish journalist and civil libertarian Nat Hentoff, Noonan writes (emphasis added):
Mr. Hentoff sees excessive government surveillance as violative of the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires that warrants be issued only “upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized.”
But Mr. Hentoff sees the surveillance state as a threat to free speech, too. About a year ago he went up to Harvard to speak to a class. He asked, he recalled: “How many of you realize the connection between what’s happening with the Fourth Amendment with the First Amendment?” He told the students that if citizens don’t have basic privacies—firm protections against the search and seizure of your private communications, for instance—they will be left feeling “threatened.” This will make citizens increasingly concerned “about what they say, and they do, and they think.” It will have the effect of constricting freedom of expression. Americans will become careful about what they say that can be misunderstood or misinterpreted, and then too careful about what they say that can be understood. The inevitable end of surveillance is self-censorship.
This last sentence is most compelling. Because it speaks to something that is a — if not the — great killer of free societies to thrive and innovate and prosper: that killer is fear.
If a person fears they may be “found-out,” or that their private information can somehow be deemed “bad” or “improper” (even if the decision-makers for such things are using arbitrary and ever-shifting guidelines), that person will simply stop communicating. What’s more, if what a person searches online to gather information is also being looked at and graded on some mysterious scale, the fear of their grade on that scale will lead to a necessary slowing of information hunting. People could conceivably become less educated and less willing to communicate. Nothing gets done if communication stops. Businesses slow, relationships stagnate, life dries up. This is the very tactic inherent in the strategy of terrorism, the global scourge we in this country speak eloquently about wanting to eradicate.
And yet, we are being terrorized here by the spectre of potential exposure for things that may or may not be deemed dangerous or threatening or seditious. As Noonan write:
Privacy is connected to personhood. It has to do with intimate things—the innards of your head and heart, the workings of your mind—and the boundary between those things and the world outside. A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications.
If we are really ready to use the fear tactics of the enemy we fight in order to catch that same enemy, we had all better be prepared. Because the nature and character of our free republic will necessarily change to fit this brave new world.