Libraries, Archives, Technology, Impending Doom
By the end of the day on August 5, 2013 a person in the US could be forgiven for thinking that the major news of the day was that an incredibly wealthy baseball player was suspended and that an even wealthier businessman bought the Washington Post. Granted, it was a story that first came out earlier in the day, but by nightfall the revelations of another surveillance program that clashes with the constitution had fallen well below the masthead. After all, people are tired of all of these surveillance stories (though this one did not emerge from the information that Snowden revealed), even if such stories have much more serious implications for most citizens than the fact that a baseball player was suspended and a newspaper was sold.
Yet what we are seeing ever more of is a steady state of affairs in which our technological civilization proves that, in the words of Jacques Ellul (in The Technological Society):
“All the traditional legal principles are collapsing…This is not due to the particular evil of our society, but simply to the fact that the law, insofar as it is a system, is not adapted to absorb necessary innovations.” (Ellul, 251)
The latest story of such legal collapse originated with Reuters reporting about the existence of the Special Operations Division (SOD) of the Drug Enforcement Agency (DEA) in a story titled “Secret US drug agency unit passing surveillance information to authorities,” the story explained how (these are the opening lines of the report):
“A secretive US Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”
While the above lines sound – tragically – like more of the same surveillance news that’s been reported of late, the plot thickens as the article reveals that the DEA has been covering up the origins of this information by encouraging law enforcement groups:
“to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s constitutional right to a fair trial.”
The essence of the Reuters report was nicely distilled by the title of an article by Brian Fung “The NSA is giving your phone records to the DEA. And the DEA is covering it up” which was published by the Washington Post several hours before all of the news about the Post became focused around who had just purchased it. Or, to provide a clear explanation of the implications of this latest revelation (as was done at privacysos.org in a post titled “Secret drug war deployment of NSA intelligence evidence of mission creep” [privacysos.org is related to the Massachusetts ACLU]):
“when the DEA’s SOD gets a tip from the NSA about drug sales happening in Massachusetts, the SOD can inform the Boston Police Department that X person is likely a drug dealer. Using that information, the BPD could fabricate information supposedly given to them by a confidential informant that would justify an investigation of its own. Then, police and prosecutors can subpoena the same cell phone records that the DEA gave to them based off of an NSA tip, and using this information, obtain search warrants leading to the suspect’s arrest. The initial NSA intelligence tip would likely never be disclosed, even if the case went to trial. “
While the constitutional and legal implications of this story are worrisome, and it is particularly jarring to read the coverage of this topic and see the quotes from legal scholars stating that this may actually be worse than the previous revelations about the NSA’s actions, what should not be forgotten is that this in many ways is still just a story about information. It is about the ability to gather massive amounts of information, about the ability to provide access to massive amounts of information, and about the ability for this information to be shared. There is no longer any speculation that the NSA is gathering a massive trove of data on the daily lives of US citizens (and people around the globe); though it may be what we would hope it would actually be more of a surprise if other governmental agencies were not making use of this data.
A system that aims towards total informational awareness, and that can harness enough information to become pretty close to totally aware, is going to make use of that information. Thus – without wanting to minimize these revelations – the problem here is not that the NSA is sharing information with the DEA and that the DEA is then covering it up; the problem is that the NSA is gathering that information in the first place. Once a technological system (a “technique” to use Jacques Ellul’s terminology) is advanced in a society the overwhelming logic of that system largely dictates the way that it is going to be used. After a “technique” (such as the dragnet deployed by the NSA) is put into action, its own internal logic takes control. It becomes less about whether or not a given informational system or program “violates the constitutions” or about how this program jeopardizes privacy and becomes a simple matter of “this is how the system functions, so this is how it must be used.” It is pointless to note that the DEA is covering up its own wrongdoing unless the source of wrongdoing is not seen in the act of the cover up, but in the act of deploying the technique in the first place. “The cover up” is just an inevitable part of the logic of using this technique.
The struggles around the 4th amendment – to say nothing of the questions raised about the 1st amendment – that have been stirred up of late have a lot to do with issues of how our legal framework copes with these dramatic technological shifts in society. After all, when the 4th amendment was originally penned the idea of an information gathering system as vast as that of the NSA would have been nonsensical. And as the earlier quote from Ellul suggests, our political and legal framework is not able to adapt, instead of trying to use the technology it is used by the technology (as Ellul largely saw as the inevitable effect of widely applied technique). From the abuse (which is really just “the use”) of these surveillance programs to politicians claiming that they were never properly briefed to politicians claiming they were barred from revealing details to the public to the courts that have looked at their shoes instead of at the implications what emerges is steady recognition that (to quote Ellul again):
“Theoretically our politicians are at the center of the machinery, but actually they are being progressively eliminated by it. Our statesmen are impotent satellites of the machine, which, with all its parts and techniques, apparently functions as well without them. The state machine is, to be sure, not yet well adjusted, but we are only at the beginning, and its adjustment is already good enough to give the unmistakable impression that it will tolerate no outside influence.” (Ellul, 254)
The above words were written in 1954, and these recent surveillance scandals are excellent proof that we have moved from the period of the “not yet well adjusted” to the “very well adjusted.” The obliviousness of politicians (honestly or dishonestly) is testament to the fact that the information gathering systems that empower the NSA, the DEA, and any other agencies that are receiving this information function fine without political assistance. Furthermore – as the failure of the Amash/Conyers amendment indicates – at many junctures our politicians are happy to aid and abet the expansion of these structures.
What we are witnessing is the triumph of technological technique and the evidence that the inherent logic of these systems cares only for efficiency and the rigorous application of all the information it can glean – with little care for such humanistic anachronisms as privacy or ethics. As Ellul wrote:
“There are no longer any norms to regulate the activity of the state; it has eliminated the moral rules that judged it and absorbed the legal rules that guided it. The state is a law unto itself and recognizes no rules but its own will…when law is detached from justice, it becomes a compass without a needle.” (Ellul, 299)
By blaming the NSA and the DEA we are railing against the symptoms and ignoring the disease, and if we treat only the symptoms the disease will continue to ravage the rest of the body.
Also on this Topic
Ellul, Jacques. The Technological Society. Vintage Books, 1964