Right in Front of Your Eyes: Surveillance and Freedom

August 28, 2013 by Paul McKeever

Knowledge is not necessarily power. However, Edward Snowden’s disclosure that the U.S. National Security Agency (“NSA”) monitors the electronic communications of private citizens without a warrant has led many to conclude that the U.S. government is approaching the point of omnipotence, and to express fear and anger that the U.S. government will use that power to control them. That outrage stands in stark contrast to the support or resignation one finds in respect of substantive laws that allow the government to violate lives, liberty, and property. The contrast unveils both a bleak truth about the governed’s desire for individual freedom, and a requirement for its achievement.

Personally, the only thing I found surprising about what Snowden disclosed is that people were surprised by it. The late Dr. Richard Harshman was a brilliant mathematician, and a family friend. He had discovered a way to extend two dimensional factor analysis into a multi-dimensional system – which he named PARAFAC (short for “parallel factor analysis”) – that could analyse huge quantities of widely differing data and identify clusters of interest within it. One day in the early 1990s, he shared with me a story about how, in the early 1970s, he had been approached by the NSA to develop a system that could monitor multiple telephone lines and detect discussions in which suspicious words were being spoken. For example, were the words “assassinate” and “president” to be uttered in the same sentence, the system would immediately take an interest in that conversation and, presumably, record it or cue an agent to listen to it. I assumed at that time that, in the twenty years that had passed since Richard had been approached, the NSA would have had a large computerized telephone monitoring system already in place. After all, the NSA was the world’s largest consumer of computers, and the largest employer of mathematicians.

Now, 40 years after Richard was approached – in an age when almost everyone is carrying a smart phone with voice-activated commands – one should not require a friendship with a Richard Harshman to conclude that it is both possible and probable that the NSA has the ability to monitor the content of all telephonic communications. This, after all, is the same NSA that, in the mid-1990s, attempted to require all communications hardware manufacturers to use the Clipper chip, an encryption device that gave law enforcement a back door key so as to ensure that encryption would not prevent the government from knowing the content of communications. Seventeen years have passed since the Clipper chip endeavor failed (largely due to public opposition and the inferiority of the encryption offered by the Clipper chip). Most people should find it hard to believe that the government simply gave up its plans secretly to monitor the public’s communications, thereafter. It is public – not classified – knowledge that companies like Microsoft have, in the interim, worked with the NSA to develop operating systems and other technologies relating to data communications and standards.

Consider also that there is arguably more than enough computing power to monitor every conversation you have on your smart phone. Your smart phone’s on-board voice-recognition and artificial intelligence technology (for example, Apple’s Siri), arguably could perform all of the needed monitoring of your communications, detecting suspicious words or phrases, and quietly notifying the authorities if you or the person you are speaking with talks about (or if you begin surfing for information about) terrorism, drug deals, or anything else that the authorities might be wanting to monitor. In fact, give it a try: activate your smart phone’s voice-activated AI and tell it, as I did: “Search the web for National Security Agency phone number”. Siri, on my Apple iPhone 5, found a page full of NSA phone numbers in about one second. And of course, tapping on any of them would commence a phone call. If Siri can be programmed to find a phone number relating to something I’ve merely spoken, she can be programmed to place a call without telling me she has done so. My point: it would not be necessary for the NSA or any other government agency to get the co-operation of telephone companies or internet service providers, and it would not be necessary centrally to listen to all telephonic communications: smart phones, in the hands of a growing percentage of the population, could easily do the job in a distributed fashion, sending only the red-flagged conversations to the attention of a central authority.

In short, Snowden’s news about the technological capabilities of the NSA ought really to have been met with a collective “tell me something I don’t know”. The same “but of course” should have greeted Snowden’s disclosure that the NSA is monitoring people even without a warrant or other procedural checks and balances against the abuse of power by the government.

Personally, I have not for many years shared the public’s trust in the various procedural laws that serve as checks and balances. Within the first week after I opened my law practice in 1997, a criminal lawyer gave me some advice: “If you are speaking with a criminal law client on the phone, do not talk about the case, because the police may be listening”. I found that pretty shocking. “But surely the police can’t monitor a lawyer’s phone line, especially without a warrant”, I replied. His answer: “They don’t need a warrant if they are not planning to use in court the evidence they collect over the phone”. In other words, he was saying that nobody watches the watchers, and that the judiciary will never know about illegal surveillance unless the police put in front of a prosecutor and judge evidence that they have collected by way of that surveillance.

Again, however, one should not need a lawyer friend to arrive at that conclusion. It is patently obvious that the police are not policed for most of what they do. Yes, if they execute a civilian, there will sometimes be an investigation, or even a charge. But if you can watch police break lesser laws with impunity – running red lights, speeding, pulling the prosthetic leg off of a man and telling him to “hop” away, and a lot of the other arguably criminal behaviour carried out by police at the 2010 G20 conference in Toronto, etc. – you should find it hard to believe that the government uses surveillance technology to monitor a person’s words and actions only after they first have evidence that the person is engaged in breaking the law. It should come as no surprise to you that surveillance by government is now more a fishing expedition than a means of collecting additional evidence about people already suspected of having committed an office.

If it stands to reason that the government has and regularly uses an ability to monitor the communications and transactions of all of the governed, where should your concerns rightly lay? Should you be demanding better procedural laws? Should you be demanding the invention of privacy rights? Should you be angry at government for using surveillance to detect violations of substantive law? Has Edward Snowden really told you anything you do not know or ought not to have known and, if not, has he really done any harm or any good? Can he really be said to be a villain, or to be a hero, when all he really has done is confirm what all of us ought reasonably to have assumed in the first place?

The answers to such questions lay in a consideration of the roles of government, of substantive laws, of procedural laws, and of evidence. A Government – as opposed to a taxpayer funded, organized and elected criminal gang – carries out solely the function of ensuring that nobody takes your life, liberty, or property without your consent. It does that by making and enforcing Substantive Laws: laws against such things as murder, rape, and theft. To ensure that government, in enforcing substantive laws, does not unjustly take your life, liberty, or property, the government also makes Procedural Laws: laws such as those that require police to get a warrant before tapping your phone or entering and searching your house, or rules of procedure that prohibit the use of hearsay evidence in court. Evidence is used to convince a court that a person has violated a substantive law, and to aid in determining the court-imposed remedy that will ensure that justice prevails.

No matter how it is collected, evidence that you drink cold water is of no use to a Government. A Government could not, by collecting evidence that you drink cold water, thereby prove that you had taken another person’s life, liberty, or property without his consent. A Government would expend no energy collecting such evidence, because it usually would be of no use in performing the role of a Government.

The same holds true in respect of a wide range of other matters. A Government could not, by collecting evidence that you had unreported earnings, grew cannabis, or carried a firearm for self-defence, prove that you violated income tax laws, cannabis prohibitions, or firearms bans. The reason: if you had a Government, there would be no income tax, no cannabis prohibitions, and no ban on the carriage of a firearm for self-defence. Information about your income and your garden rarely would be of any relevance to violations of the Substantive Laws made by a Government, so a Government would not bother widely to monitor communications about such things (even communications about the fact that you carried a firearm would be of limited interest, if most other people carried a firearm too). What is more: even if a Government did choose to monitor such things, its surveillance would not result in you being charged, convicted, and fined or imprisoned, because you would not have committed a crime by not reporting your earnings, by growing cannabis, or by merely carrying a firearm. Knowledge is not necessarily power.

The essential point is this: surveillance and Procedural Laws do not draw the line between freedom and oppression. Surveillance and Procedural Laws determine the effectiveness of law enforcement, and maintain the integrity of the judicial process.

The line between freedom and oppression is drawn by Substantive Laws. Therefore, to know if you are free or oppressed, you need not have any knowledge at all about the scope of surveillance by a Government (or by a gang styled a “government”). You do not need a whistle-blower, like Edward Snowden. You need only read the Substantive Law set out in plain black and white in your country’s statutes and regulations to determine whether law enforcement and national security officials are working for a Government, or for a taxpayer-funded, organized gang; to determine whether they are defending your freedom, or working hard to violate your life, liberty, and property.

Yet the common knowledge of Substantive Laws that give the purported government the power to take your life, liberty, and property without your consent – the patently obvious fact that there exist countless Substantive Laws permitting the purported government to do what a Government is supposed to prevent people from doing – does not currently have many people marching in the streets in protest. The fact is that a great many people want their neighbours to be taxed, to be sent to prison for using non-prescription drugs, or to be prevented from defending themselves effectively. They like and want the oppressive Substantive Laws of their country. Most others, disliking some or all oppressive Substantive Laws, clearly have become resigned to the belief that they can do nothing to repeal them.

In each case, such people have an interest in not being caught breaking the oppressive substantive laws. The welfare fraudster who opposes individual freedom wants the government to take money from “the rich” and to imprison “tax cheats”, but the fraudster does not want the government to detect that she also makes money under the table as, say, a child care provider. The opponent of prohibition who smokes cannabis does not want to do all of the work necessary to end prohibition, so instead keeps his head down, avoiding philosophical or political action that might draw attention to himself and his illegal consumption. Both the anti-freedom hypocrite and the pro-freedom slacker or quitter have an interest in the existence of procedural laws that hide their activities from the prying eyes of Big Brother. And, with the news of Edward Snowden’s disclosure about widespread surveillance of the public by government, the hypocrite and the coward have found a common, anti-government (i.e., libertarian) cause: demanding from the government that it not govern so effectively; demanding that the government blindfold itself except where evidence of an offence is first obtained without resort to surveillance.

Perhaps most objectionably, those who get involved in philosophical or political action to oppose oppressive laws too often join the call for less effective law enforcement. As a case in point, consider the history of speed limits and photo radar in my home province of Ontario, Canada. Speed limits on Ontario’s major highways were lowered from 70 mph to 60 mph in the mid 1970’s, in response to a demand from Arab oil suppliers that the West should stop siding with Israel, or face oil shortages. That political crisis passed, but Ontario never restored the 70 mph speed limit, even though traffic continued to travel at about that speed, contrary to the law. For years, actually getting a ticket for speeding was rare, because of the ratio of speeding cars to traffic enforcement personnel. That changed in the early 1990s: Ontario’s socialist NDP government began using photo radar-triggered ticketing. Days or weeks after speeding by such a camera, a driver would get a ticket in the mail, showing a photograph of his vehicle and an allegation about the speed the vehicle was traveling. The public’s response was telling. Instead of calling for a restoration of the higher speed limit, most called for the end of photo radar. They wanted to break the Substantive speed limit Law and get away with it more than they wanted simply to raise and comply with the speed limit. In short: in the face of an irrational Substantive Law, they called not for rational Substantive Law, but for less effective law enforcement.

Consider what the demand for less effective law enforcement would imply in a free society having an actual Government. It would imply that people want to make it easier for murderers, rapists, and thieves to get away with their crimes. In such a society – where the only Substantive Laws would be those against taking a person’s life, liberty or property without his consent – it is almost inconceivable that the public would demand less surveillance or hobbled law enforcement.

The public outcry over the NSA’s surveillance is being heard only because the purported government of the United States has not limited its role to defending life, liberty, and property; only because the USA lacks a Government. It is being heard only because there are numerous oppressive Substantive Laws in the U.S.A. that allow the elected guys who currently aim the guns to take the life, liberty, and property of an individual without his consent.

None of the above should be taken to imply that procedural laws are pointless or entirely ineffective. Nor does the above imply that it is right for a purported government to use surveillance to enforce oppressive Substantive Laws. Nor does the above imply that, if it hadn’t occurred to you that your government was monitoring your communications, Edward Snowden did not do something moral and praiseworthy by telling you what the NSA was doing.

Rather, the point is that the essential threat to freedom in the United States or in any other country is neither widespread secret surveillance nor weak Procedural Laws. Privacy is not a right implied by human nature, and it certainly is not a right to keep the government from collecting evidence that you have committed a legitimate crime such as murder, rape, or theft. The effective enforcement by Government of good and objective Substantive Laws is essential for the defence of individual freedom in society.

The essential threat is the patently obvious one: that law makers (with the aid and support of those who voted for them) have perverted the role of Government by making Substantive Laws that authorize the purported government to violate the lives, liberty and property of the governed, and they continue to do so. For all who care to fight for individual freedom in the legal and political realm, the focus of outrage and resistance should be upon repealing patently obvious and oppressive Substantive Laws, rather than upon undermining the ability of a purported government to effectively enforce good and bad Substantive Laws alike. The aim is the restoration of a Government, not the inevitable anarchy that results from libertarianism.