It’s corny and it kind of smells like a high school debate, but I still watch Spencer Tracy and Frederic March in Inherit the Wind (1960) whenever I bumble into it on TMC. There’s a speech Tracy (as the Clarence Darrow clone Henry Drummond) makes about “progress.” He says, “Progress has never been a bargain. You have to pay for it,” and he goes on to talk about how women can now vote but at the cost of the “right to retreat behind the powder puff or your petticoat” (we’re in 1925, remember) and how aviators may now “conquer the air, but the birds will lose their wonder and the clouds will smell of gasoline.” He complains: “Sometimes I think there’s a man who sits behind a counter and says, “All right, you can have a telephone but you lose privacy and the charm of distance.”
The Snowden leaks have made a lot of us angry,
really angry. At first, many of us were mad at Snowden, but now—as the headline of
a recent Trevor Timm Guardian column tells us—our outrage is directed against the NSA: “More people than ever oppose the NSA practices Edward Snowden revealed. Why should he spend his life in prison?”
We want our privacy, offline
and online. According to the dissent of Justice Brandeis in
Olmstead v. United States(1928)
, privacy is a constitutional right. But sometimes
I think about that “man sitting behind the counter,” offering me global connectivity at the price of (some) privacy. As Eric Schmidt and Jared Cohen ask in
The New Digital Age (2013), “What is the relationship between privacy and security, and how much will we have to give up to be part of the digital age?”
And make no mistake, the Internet most definitely has costs. Maximum privacy exacts a cost in security, and maximum security exacts a cost in privacy. To complicate matters further, pay out too much of your privacy in exchange for security, and you actually become less secure—subject to the whims of a government become too powerful. Checking the tyranny of individual whim is what John Adams (among others) thought good government should be all about. Adams wanted a “government of laws, not men.” Laws have no whims. Men—people—do. (Think Caligula and Idi Amin; think Stalin.) But laws have to be very carefully crafted. As Jack Goldsmith and Tim Wu write in Who Controls the Internet? (2006), “Should data privacy be unregulated, modestly regulated, or heavily regulated? A single answer … would leave the world divided and disconnected.”
We may have a right to privacy, but executing that right, it turns out, has a price. It turns out that the ultimate price for maximum privacy is not giving up security, but connectivity. Get off the Internet and stay off. No more Amazon for you. No more Facebook. No more depositing checks with a click of your smartphone.
The balance among privacy, security, commerce, convenience, connection, national law, and international law will always be a negotiation with few absolutes beyond that of some cost, the necessity of exchanging one value for another. Getting angry about this won’t change it. Try curling up with The Wealth of Nations. Maybe you’ll feel better.
But what about Trevor Timm’s headline: “More people than ever oppose the NSA practices Edward Snowden revealed. Why should he spend his life in prison?”
Are we as a nation and a society and a civilization better off with some inkling of the power of the NSA than without any idea of what it does or has done? That is, was the security cost of the Snowden leaks worth what we gained in privacy or, at least, in privacy awareness? Could it be that the Snowden leaks actually increased our collective security by alerting us to the security threat the NSA—the very agency charged with protecting security—actually represents? Or do the Snowden leaks come with security and privacy costs nobody has yet even calculated?
Let me explain this last query.
Timm’s answer to the question of whether Snowden should go to prison or be granted amnesty is based on his assessment that recent
legal decisions concerning the Espionage Act would almost surely prevent Snowden from presenting an adequate defense in an American courtroom. Based on the assertion that “more people than ever oppose the NSA practices Edward Snowden revealed,” therefore, the only just alternative is to circumvent existing law via executive amnesty.
This could be done. The president could issue an amnesty, and Snowden would be free—though not acquitted. Whatever the cost to the president, the cost to all of us would be a broad step back from a government of laws into a government of men, in the form of perceived or assumed popular opinion and will and executive fiat. Amnesty would also validate one unelected work-for-hire consultant’s decision to break the law for what he, acting alone, perceived as a greater good. This would further denigrate government by laws while elevating government by men.
Amnesty might well be the “right” course to take. When the British government looked for a way to make it possible for contractors to sue the Crown, it had to circumvent a law forbidding such suits by introducing the concept of a “petition of right.” Decisions made under such a petition did not begin, “Let justice be done,” but instead “Let right be done,” recognizing that what’s legal and what’s right don’t always coincide.
Yet, in the Snowden case, would the cost in security and privacy be worth it? What if some Jack Bauer type illegally breaks into any number of computers to expose a security threat and then, based on a Snowden amnesty, demands amnesty from prosecution under privacylaws?
Honestly, I cannot answer any of my questions. I can only ask them and ask others to ask them, including everyone with a stake in the Internet, which is, in fact, practically everyone, not to mention those among us who are as yet unwilling to give up on a government by laws. Snowden himself gave up on it. Likely he saw no other choice. Yet it remains difficult to forgive his selection of alternative and refuge: Russia! Russia, led by Vladimir Putin, who, like Joseph Stalin before him, governs the nation not as the chief magistrate of its laws, but as a man—B
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