I’ve felt that much of the commentary surrounding Edward Snowden and the National Security Agency has failed to capture just how radically these revelations may alter our society. A couple of weeks ago, I vaguely assumed that the average citizen had at least a modicum of privacy, but I can no longer justify that belief. The NSA’s programs represent, at least in potentiality, a panopticon state—where one has a well-founded belief that every single communication of any kind has a nontrivial chance of being monitored. It’s the kind of country that for most of modern history has existed only as a kind of academic bogeyman for the purposes of theoretical demonstration.
For the purposes of argument, let me start by making a few assumptions that, given the classified nature of the operations disclosed last week, are impossible to confirm:
1. Policy. The agency’s activities help to prevent terrorist attacks.
2. Legality. Surveillance is in fact being conducted in accordance with existing law; the administration’s interpretation of that law is not a perversion of it and analysts’ practices do indeed conform to that interpretation; abuses and negligence that compromise privacy unnecessarily are rare.
3. Constitutionality. Existing law is constitutional. See assumption (2) above.
4. Posterity. Assumptions (1)-(3) above will remain true into the future indefinitely. (Matthew Steinglass makes two very good points about why innocent people should worry about surveillance: despite their innocence law enforcement could blackmail them, or they might be wrongly assumed to be guilty based on their behavior. Let’s set even those concerns aside, as well as the concern that the state might regress to the era of the civil rights movement, in which political actors used the surveillance apparatus for baldly corrupt purposes.)
Even if all of these are true, the agency’s activities are still problematic. Whatever limitations do exist on surveillance, they can never give anyone confidence that her communications are private because they are necessarily secret, and if people feel that a third party might always be listening to their conversations, they will begin to change their behavior.
That was really what Jeremy Bentham was arguing when he laid out his scheme for a new kind of prison he called the Panopticon, which Snowden cited in his correspondence with reporter Barton Gellman. Bentham designed the prison so that every inmate could see a central guard tower, but none of them could see into the tower to know whether he was being watched in turn. (Several of these were actually built. SCOTUSblog’s Ronald Collins offered a good shood short summary and recommendations for further reading earlier this month in a post on, disturbingly, an unrelated Supreme Court decision.) Bentham’s prediction was that even if there were no guards in the tower, and perhaps even if none of the inmates were ever punished, the inmates would adopt salutary habits and gradually reform into law-abiding and God-fearing citizens simply because they would be unable to forget the possibility that at any moment, someone might be watching them.
If the National Security Agency has sought and obtained warrants from the Foreign Intelligence Surveillance Court that apply universally to anything stored on a company’s servers, then it is legally and technologically possible that any citizen’s communications could be viewed by an agent of the government at any time. It doesn’t matter whether they are viewed or not, or whether there are ever any material consequences because of that surveillance. The surveillance could be limited and legal, but the surveillance itself isn’t really the problem. The problem is the secrecy, which renders the surveillance virtually omnipresent.
What matters, Bentham believed, is not that the guards be able to see the inmates, but that the inmates be able to see the tower. That’s why Snowden’s actions are so consequential. He pointed out the tower. Will we become different, now that we’ve seen it? Was Bentham right about human behavior? We don’t know, but we’re about to find out. (You almost wish Snowden had kept quiet, so we could have gone on with our lives as before.)
Talking about Bentham as a high school student, I can remember telling classmates I wouldn’t change my own behavior even if I thought I was being watched, but in retrospect that was probably a fib. It is true that we make public and share with corporations much more about who we are than Bentham ever could have imagined, and we are still all unregenerate sinners. Still, I think there is an important difference between voluntarily sharing information through social media or allowing a search engine to create a profile of you algorithmically and having the words you write read by someone at Booz Allen. My prediction is that our newfound knowledge will have an effect. Slowly, subtly, we will become more proper, more paranoid, less honest, and more concerned about projecting the image of who’d like ourselves to be, even in private communications. We are all worried about how total strangers think of us, and that will include the strangers at Fort Meade.
Perhaps this is just paranoia, but I don’t think we’ve talked enough about what this new situation means for us. Not only is our government changing in ways we don’t entirely understand. Our government might also be changing us.