I think I can understand why. While invasions of privacy can make us feel uncomfortable, for most people, that is all that they do. The magnitude of the individual harms that Prism imposes on basically upstanding citizens are relatively small. Despite committing three felonies a day, most people do not actually expect ever to be on the business end of a federal prosecution. Creepiness is the only cost of NSA intrusion in their lives, and creepiness fades as it is weighed against the more visceral scariness of the September 11 attacks or the Boston Marathon bombing. Most people really do have, if not nothing, very little to hide.
That is why it is important to acknowledge and emphasize the systemic effect of the NSA’s ambitious efforts to catalogue the world’s communications. The harm caused by Prism is more than the sum of the privacy costs it inflicts on individuals.
In order to limit the power of the federal government and protect individual liberty, the founders appended the Bill of Rights to the US Constitution, explicitly specifying some activities that the federal government may not do. But more important than restrictions on what the government may do are limitations on what the government can do. The government of the founding era was unjust in all kinds of ways, but it had very limited ability to impose any sort of centralized will upon an area as large as the Atlantic seaboard, bordered by a continent-sized wilderness. The tools available—muskets, cannons, horses, and wooden ships—were simply not up to the task of controlling the minutiae of the entire population’s everyday lives from Washington.
Over the last century, this limitation on the power of government has been gradually repealed. We never voted on it, it just happened. As Tyler Cowen argues in his paper, Does Technology Drive the Growth of Government?, the introduction of some of our favorite technologies has led to more government control of our daily lives.
Assume that we had no cars, no trucks, no planes, no telephones, no TV or radio, and no rail network. Of course we would all be much poorer. But how large could government be? Government might take on more characteristics of a petty tyrant, but we would not expect to find the modern administrative state, commanding forty to fifty percent of gross domestic product in the developed nations, and reaching into the lives of every individual daily.
As limitations on what the state can do have eroded, the state has done more. To the dismay of my fellow libertarians, much of this growth in government is popular.
But even non-libertarians should have anxiety about repealing the next stage of limitations on what the state can do. The NSA is making an effort, with some apparent success, to know everything that is happening in the world. As the old saying goes, knowledge is power, and through the transitive property of aphorisms, absolute knowledge corrupts absolutely.
I have no doubt that Prism is a helpful tool in combatting terrorism and enforcing the law, as the Obama administration claims. But ubiquitous surveillance doesn’t just help enforce the law; it changes the kinds of laws that can be enforced. It has Constitutional implications, not just because it violates the Fourth Amendment, which it does, but because it repeals a practical barrier to ever greater tyranny.
Our response to the dangers posed by an omniscient state must be twofold. First, in an age when the state can do more than ever before, we must be more vigilant than ever before to limit what the state may do. As Julian Sanchez and others have argued, this means reinvigorating our Fourth Amendment jurisprudence by rejecting the third-party doctrine. And we need to roll back the imperial ambitions of the US military and our various intelligence agencies.
But because our political vigilance in the past has failed, second, we must also invent and adopt technologies to counteract the increased knowledge and power of the state. As my colleague suggests, encryption is an important tool against mass surveillance, not to mention an invaluable way to facilitate the work of whistleblowers like Edward Snowden. In addition to encryption, the use of decentralized services can also limit the ability of the government to monitor everything at once, since they are not susceptible to the general warrants the Obama administration appears to be using to justify its programs.
Wikipedia defines totalitarianism as “a political system in which the state holds total authority over the society and seeks to control all aspects of public and private life whenever necessary.” Since September 11, 2001, the United States has come precariously close to meeting this definition. Neither the Bush nor the Obama administration has seemed to recognize any limit to its authority “when necessary” to avert a terrorist threat. This dangerous trend should trouble everyone, even those who have nothing to hide.