In her recent apologia for communism, Helen Andrews says that people in the Soviet bloc grew accustomed to being spied upon, rendering it a mere “annoyance at most for the average person,” albeit “excruciating for independent thinkers.” Even people who find the rest of her article anathema might concede that point, because Americans commonly shrug off government surveillance by claiming that they have done nothing illegal and hence have nothing to hide.
Americans used to consider spying an invasion of privacy; the Framers tried to balance individual rights to privacy with the public’s security interest in the Fourth Amendment, the one about “probable cause” and “warrants.” So surveillance per se is not the issue, accountability for its (mis)use is. Unconstrained government surveillance injures the innocent at least as much as it protects them from the boogie man du jour.
After all, no one is truly innocent of the law as everyone in modern America has broken one or another, typically unwittingly. Yes, there are that many laws. My favorite is misprision of felony, a federal law that states that anyone who knows about a felony who doesn’t report it to the authorities can go to prison for three years. Americans cannot practice law without a license, but everyone is supposed to know a felony when they see one. The point is, if the government wants to get someone, it can find something if it has access to enough personal information.
But even if somehow perfectly law-abiding, Americans can still suffer if government officials know too much about them. Government bureaucrats have considerable discretionary permission powers that they can use to thwart the goals of individuals they dislike. In some states, for example, people still need the explicit permission of authorities to lawfully carry firearms outside of their homes. Construction permits, even for trivial repair jobs, remain necessary in many jurisdictions and can be delayed or denied on any number of pretexts. To create a nonprofit, one must jump through hoops that the IRS can, and has, moved at will. A bureaucrat who knows you hunt (or donated to PETA), own an ICE vehicle (or an EV), registered as a Republican (or a Democrat, or, worse still, a third party!), or once spoke at a school board meeting (gasp!) can deny your permit outright or send it into paperwork hell.
And by aggregating discrete pieces of information, a bureaucrat (or his or her AI assistant) can perceive a pattern indicating that you, Sir or Madam, are a dirty, stinking fill-in-the-blank who deserves to be audited, subjected to higher levels of surveillance, black or gray listed, and so forth. Like Josef K. in Kafka’s The Trial, individuals can be mercilessly destroyed by powerful, unaccountable bureaucrats for no objective reason at all.
Once cognizant that the government is a political entity rather than a disinterested gatekeeper of civilization, a fact that people in communist countries learned early and often in life and that Americans appear to be slowly relearning, people self-censor out of self-preservation. Few become independent thinkers, and fewer still independent advocates of views that run contrary to the government party line because of the excruciating pain they suffer. Think Socrates, Paine, Garrett (Garet or Michael), Solzhenitsyn, Kennedy (pick one). Scientific and technological advances and economic growth grind to a halt as everyone learns to say what they think government officials want to hear, rather than what the real world tells them is the truth.
Not only does the surveillance state impoverish everyone, it does not even keep them safe, collectively or individually. Lacking independent thinkers and the best technology, their militaries lose ground to those of more open societies until they cannot even dispatch much smaller neighbors. More importantly and ironically, the surveillance state itself becomes the biggest enemy of individuals by forcing compliance with laws and mores that aid only a privileged few.
The asymmetry of the surveillance state belies its true purpose: to protect the government, not the people. If an American were to run an NSA-style surveillance op on any government agency and brush it off by saying that innocent officials have nothing to fear, they would be treated like, well, Julian Assange or Edward Snowden.
But the government hampers even public records research that threatens to expose government wrongdoing. To research the Securities and Exchange Commission (SEC), for example, Americans have to fill out a FOIA request and wait, and wait, and then appeal, threaten to sue, and on and on. And that is just to obtain the number of a box that one must physically travel to Maryland to read!
Even electronically fulfilled FOIA requests can be redacted, and often are, to the point of being useless. Remember the black gems that came out of COVID related FOIA requests that were 80, 90, even 100 percent redacted? Send a lightly redacted W2 to the IRS or a redacted Form 4473 to the ATF and see what transpires.
Were that not bad enough, the U.S. federal government classifies over 50 million documents annually, thus putting them out of the reach of citizens. Yet government officials, including former President Obama, claim that they value “transparency.” Clearly, U.S. officials know full well the importance of their own privacy but remain unwilling to extend equal privacy protections to the people they purportedly serve.
So don’t be fooled by the “innocent people have nothing to hide” canard. State surveillance hurts everyone in proportion to its extent, which in the Communist bloc and other collectivized societies was quite a lot. Americans therefore should counter, not brush off, attempts to increase state surveillance while decreasing oversight. Utah has led the way over the past decade, including with a new law, unanimously passed in both its legislative houses, that limits warrantless geofencing (cell phone tracking) and mandates detailed reporting on geofence warrants.
Eternal vigilance may be the price of liberty, but unconstrained surveillance will cost us our liberty as well as our security.