The chilling effects of surveillance

Mass surveillance without due process threatens to stifle and smother dissent, keeping a populace cowed by fear.

Activists Groups Protest NSA Surveillance Program
The Obama administration's aggressive investigation and prosecution of whistleblowers demonstrates that the US government may not be as benevolent as it portrays itself [Getty Images]

Revelations contained in documents recently leaked to the Guardian by whistleblower Edward Snowden have placed the United States front and centre in the ongoing global debate around mass surveillance. 

The dramatic story continues to unfold: first, evidence of Verizon’s complicity with the National Security Agencies (adding to existing knowledge of AT&T’s actions); then, information implicating Silicon Valley’s leading tech giants; next, leaks on British involvement, and surely more to come. Altogether, the story feels, to many Americans, like something out of a dystopian novel, so many of which were written as warnings about the actions of our Cold War foils.  

Consider for a moment the toll of constant surveillance on citizens in the Soviet Union, or East Germany. Extensive research on the psychological effects of such widespread surveillance has shown subjects to be self-conscious and fearful. The long-term damage attributable to such apprehension manifests in a variety of ways, from the creation of a culture of self-censorship to even – according to some researchers – economic lag. 

Those who argue in favour of surveillance do so under the guise of national security: electronic spying is necessary, they say, to catch terrorists and others deemed potentially harmful to the state. Today’s surveillance is different from that of yesteryear: it is focused on the collection of metadata from the masses, rather than a targeted few individuals, leaving us all vulnerable to the government’s watchful eye. 

The US as exception 

Outside the US, the opposition to the NSA’s dragnet spying has been strong; after all, it is non-citizens who are its primary victims. Inside the US, however, a different narrative is playing out between those who claim they have “nothing to hide” and those who see the potential long-term damage created by a spying programme of such enormity. 

Those who take the former argument seem to be doing so out of an inherent trust in the US government. Their assumption, it seems, is that surveillance is necessary for protecting the US against terrorism, despite little proof of its efficacy. A related belief, expressed by many, is that the US can be trusted to keep the awesome power of its surveillance system in check. 

Although comparisons to surveillance-rich authoritarian regimes such as the Soviet Union, or contemporary Bahrain or the UAE should not be taken too far, arguments that the US system is inherently incapable of being one is fallacious. One need only look to the grand juries targeting Palestinian solidarity and anti-war activists in Chicago or the FBI spying on Muslim communitiesin their places of worship to show that some groups with “nothing to hide” are still vulnerable to intimidation. 

NSA chief defends US spying programme

The Obama administration’s aggressive investigation and prosecution of whistleblowers further demonstrates that perhaps the US government may not be as benevolent as it portrays itself. The recent charges brought against Edward Snowden make him the eighth leaker to be charged under the Espionage Act under the Obama administration; prior to Obama’s inauguration, the Act had only been used to prosecute three such individuals, including Daniel Ellsberg, since its passage in 1917. 

And this from the president who promised more transparency but has done little to make that promise a reality. The ultra-secretive 2008 FISA Amendments Act took away existing privacy protections and created even more secrecy around how surveillance is conducted. 

While several lawsuits have challenged the secrecy of this surveillance – and the Director of National Intelligence has admitted that surveillance efforts have on at least one occasion violated the Fourth Amendment – the US government has refused to declassify any information about the programme, any of the FISA court’s opinions, or their interpretation of the law. 

Given the constitutional violations and massive secrecy, it should be no surprise that individuals privy to details about the NSA’s programmes have chosen to come forward, despite the aforementioned risks. And while some might admit their actions were criminal (in the great tradition of civil disobedience), their supporters will readily agree that they were worthwhile for exposing the depth of the surveillance state.  

Freedom of speech 

In a landmark 1972 case, United States v US District Court, the US Supreme Court unanimously upheld Fourth Amendment protections in cases of domestic surveillance targeting a domestic threat. Justice Lewis Powell, writing for the Majority, remarked

“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.” 

More recently, special rapporteur to the UN on freedom of expression and opinion Frank La Rue wrote

“Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas… An infringement upon one right can be both the cause and consequence of an infringement upon the other.”  

Without freedom of speech, all forms of activism, of challenging state power, come under threat. In her recent keynote address to the Freedom Online conference in Tunis, Rebecca MacKinnon told a story about how, while on a panel on free expression, she was challenged by an audience member who stated that governments must first solve the basic problems of feeding, clothing and housing before addressing other demands, such as the right to speak freely. 

As MacKinnon recounts, panelist Taurai Maduna from Zimbabwe immediately replied: “Without freedom of speech, I can’t talk about who is stealing my food.” 

Dissent is an essential element to a free society and mass surveillance without due process -whether undertaken by the government of Bahrain, Russia, the US, or anywhere in between -threatens to stifle and smother that dissent, leaving in its wake a populace cowed by fear.

Jillian York is director for international freedom of expression at the Electronic Frontier Foundation in San Francisco.

Follow her on Twitter: @jilliancyork