By Michael F. Duggan
The claim that if you want security you must give up liberty has become a mainstay of the revolt against freedom. But nothing is less true. There is, of course, no absolute security in life. But what security can be attained depends on our own watchfulness, enforced by institutions to help us watch—i.e. by democratic institutions which are devised (using Platonic language) to enable the herd to watch, and to judge their watch-dogs.
-Karl Popper, The Open Society and Its Enemies, 636, n.62
We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.
–Oliver Wendell Holmes, Jr., Olmstead v. United States, 277 U.S. 438 (1928) (dissent)
Why do monopolies raise prices while decreasing portions and lowering the quality of ingredients, parts, and services? They do it for the same reason psychopaths do what they do: because they can.
Governments, like businesses, are not moral or immoral. Like an nonsocial organism in nature, they are amoral and are only as good as their people, ideology, laws, and actions; a nation is what a nation does, both good and bad. They will do whatever they can within the law and sometimes well beyond it, limited only by the bounds of the possible. Unrestrained, they may do what they can get away with, and all governments lie to their people in varying degrees. They are a necessary evil (underscore both necessary and evil). Given all of this, what will become of democracy and liberalism in a time when the state is able to follow most aspects of a citizen’s life simply because it can?
Consider the following story. On July 12, 2012, a 10-year-old girl was walking home from a store with her 2-year-old brother in their South Philadelphia neighborhood. As they walked by a parked car, a man got out and grabbed the girl, but she fought back and the boy screamed at the top of his lungs. The man got nervous, got back into his car and drove off. The whole thing was caught on a street camera and the video was widely circulated on television and on social media. Realizing the hopelessness of his situation, the perpetrator turned himself in and is now serving 17-34 years in prison.
Given what could have happened in this incident, it is impossible not to be pleased b they outcome. Philadelphia Mayor, Michael Nutter, observed that the quick resolution to the case “demonstrates the power of getting information out or having good video.” ABC news reported a police source admitting that the video “was the catalyst in breaking the case.”
That night I called a friend, a believer in the Fourth Amendment (another happy ending to come out of Philadelphia), and a critic of the surveillance state. I made the point that one could not argue with the results in this case. His haunting reply cut to the heart of the matter: “Yes,” he said, “I suppose that there are some advantages to living in an authoritarian system.” As it happens, street crime was not a major problem in Nazi Germany and in other nations under totalitarian regimes. The question is how far in that direction should the citizens of a liberal republic be willing to go?
It is undeniable that surveillance technologies sometimes work in these kinds of cases and are useful in finding suspects after the fact. No doubt they also provide a fair measure of deterrent value as well. I am told that one cannot walk across downtown Washington, D.C. (or London, or New York City, or…) without being off-camera for more than a few seconds. It turns out we are all TV stars.
But have we given away our privacy too easily? One of the operating costs of a liberal republic is the higher crime rates that go along with people having the freedom to act on bad impulses. Rights allow us to do all kinds of bad things. The First Amendment gives constitutional protection to a wide range of lies and deception. On the other hand, the same technological revolution that wrought today’s surveillance technologies has also created powerful new criminal tools and provides the venues for their use. It’s a cause-and-effect thing: technology helps create the problem and then provides solutions that come at a cost to our civic lives.
Human nature may not change over historical time, but cyber technology has created an entire new cosmos for human venality; in all my years I was never robbed on the street, and yet people try to rip me off on the Internet or via robocalls every day (while editing this article, I was interrupted three times by automated calls from unfamiliar organizations). What happens if security technology and our laws do not keep pace with technology-enabled crime in these dangerous new worlds? The flip side of this question is: what becomes of a state that knows everything about its citizens? Like the Vietnamese village of fifty-odd years ago, will a government destroy the foundations of liberal democracy in order to save it?
The cyber world has thus created a situation in which the very enforcement of the law may require the surrendering of privacy and rights. On the other hand, where the law is not enforced, the law ceases to exist, and the most aggressive and opportunistic elements tend to take over (the later Roman Empire was flawed and corrupt, but by most standards, it was better than the early Middled Ages in much of Europe).
Aggravating all of this is the fact that some of our national first principles are at odds with each other. Equality and liberty, for instance: the more that equality is enforced, the less freedom; the more freedom, the less equality. It is the same with freedom and security. It is like a seesaw or a balance scale: the less that law is enforced, the more crime; the more the law is enforced, the less freedom. The trick is to strike a tolerable, workable balance of rights and security. And yet the power of the new technologies have forced situation of accepting a choice of either security or victimhood. In the minds of many people addicted to their smartphones and other high tech face magnets, privacy and rights never enter into the equation.
Even where security features are in place, safety is not guaranteed, and you may end up losing both your freedom and security. All 19 of the September 11th terrorists were caught on security cameras, and, although surveillance footage helped identify them after the attacks, they were still able to destroy the World Trade Center towers, hit the Pentagon, and kill everybody aboard Flight 93. Likewise, the United States military could see every square inch of Afghanistan from space, and yet for 20 years Americans still came home in body bags before the Taliban took control of the country in 2021.
Is the future one in which liberal democracy is replaced by a techno surveillance state as a lesser of evils in a dark Manichean world? Are we already there? The difference between Big Brother in the novel, 1984, and the estates of the modern surveillance state and its corporate allies—whether it is banks, businesses, and social media tracking your preferences and transactions via algorithms, local jurisdiction speed cameras, or a centralized government—is that Orwell could have never imagined the power of the technologies that watch or otherwise follow us today; Big Brother’s creepy, yet blandly attractive, know-it-all Little Sister, Alexa, is already a permanent guest in tens of millions of households. But even this is small potatoes relative to what is already possible. The level of surveillance in nations like China shocks the conscience.
Some people shrug off these concerns with the argument: if I am not doing anything wrong, why should I care if intelligence or law enforcement agencies are watching me or accessing my DNA (and the related question: why shouldn’t the businesses and financial institutions I use know my preferences)? The problem is that you might get a government you don’t like and who does not like you (and the businesses you patronize may share your information with less savory organizations). If the past 7 years have shown us anything, it is the vulnerability of republics to illiberal demagogues and factions. If an authoritarian government were to take over, it will be too late to change things. It is probably too late already, given the power of today’s surveillance technologies and the amount of personal information out there. And given human nature, if the technology exists, is will be used and abused.
There is also a broader theoretical question here: at a certain level of technological development, does privacy, and therefore freedom—cornerstones of a liberal constitutional society—become impossible to sustain? Although it is hard to know precisely what that tipping point is (and it may be well behind us), I suspect that the answer is yes: surveillance technologies will render liberal democracy a thing of the past.
As with the private enforcement of local, state, and federal laws, and incarceration for corporate profit, domestic spying should never be condoned in a democracy, especially for profit. Just as human misery should not be monetized, nor should private information. These things are fundamentally harmful to the health of a liberal republic. They are by their nature corrupting. It is bad enough when a government continually spies on its own people, but to make such practices profitable not only cements them into place, it is also a long stride toward authoritarian rule. Because the Internet has become such a pervasive part of our lives, it is easy to forget that one of its primary purposes is intelligence gathering against those of us who use it.
Without law and the order it provides, there can be no freedom, privacy, or rights. But things have gone too far, and we are like the frog in the parable that is slowly boiled to death as the heat is turned up gradually and without its noticing. In writing this, I am reminded of Benjamin Franklin’s famous admonishment, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” And yet because of the scale and ubiquity of today’s technology, I suspect we are well beyond that in practical terms. And with AI and quantum computing (and hacking) about to come into their own, I suspect that things could get much worse over the coming years (in which case, these may be the good old days). Even without these things, the post-liberal techno state is already upon us.