Computers, Privacy & the Constitution
Fear and Apathy and Surveillance Fear is the enemy of reason. It impairs judgment, distorts perceptions, and fundamentally undermines the ability to make rational decisions. The Patriot Act was a product of fear. It was fear that consumed the nation in the wake of the September 11 terrorist attacks and left the American public calling for immediate action, willing to sacrifice anything for the promise of safety. When anthrax-laced letters began appearing in the U.S. mail less than a week later, and senators were targeted such attacks, Congress felt directly threatened; the fear and panic resulted in a sort of cognitive dysfunction that severely distorted meaningful assessment of the risks in question. Panic created a sense of urgency and made protection feel more important than any liberties that might be lost. The rush to take action, to make positives steps towards feeling safe again, meant that no one gave careful consideration to the 352-page document in their hands or the long-term implication of the Patriot Act’s massive expansion of executive authority while eliminating previous checks that would ensure these powers were not abused (the Act includes no requirement that the Justice Department report to Congress or to the federal courts, and secrecy, invoked in the name of national security, prevents public scrutiny) essentially giving intelligence agencies carte blanche in fighting the war on terror.

Applying its own secret reinterpretation to Section 215 of the Patriot Act, the NSA has, for the past decade, employed dragnet surveillance, collecting of the private calling records of millions of Americans. Though it was fear that crippled the decision-making process and opened the door for such abuse of power, that fear is no longer what sustains it, and will no longer be the biggest obstacle in reclaiming personal privacy. Though fear is still sometimes called upon to justify Section 215 (recently called ““an important tool to prevent the next terrorist attack,” by Senate Majority Leader Mitch McConnell? ), blatant fear mongering seems to have significantly less of an effect today on the willingness of private individuals to make personal data less secure. Both Apple and Google have faced a great deal of backlash from law enforcement following announcements by each of plans to include data encryption as a default setting for their respective phones. The software (currently available for Apple and soon to be released for Google) encrypts smartphone data so that not even the service provider is capable of accessing the information, triggering a barrage of paranoia and empty rhetoric from law enforcement officials, who characterize the issue as one of public safety. Forcing service providers to leave open a “back door” through security measures so as to allow access for law enforcement amounts to a rule requiring wholesale weakening of data security in order to expedite prosecution of criminals, an interest applying to only small fraction of the population. While the general direction of this debate indicates a promising future for the protection of personal privacy in that there support for Apple and Google’s refusal to compromise the security of their phones’ data encryption, demonstrated mainly through criticism of the “law enforcement back door” compromise, and there also appears to be either cynicism or general disinterest when it comes to arguments that use fear or public security threats as a means of compelling less privacy or control over personal data.

However, these same trends illustrate what will likely replace fear as the biggest obstacle in the fight to reclaim privacy and reshape the fundamental structure of the Internet – the “viciously apathetic” Millennial. If this is truly the last generation that will have a choice between free will and a totalitarian surveillance state, we might very well be screwed. The Millennial generation is best summed up as angry yet apathetic. Lazy cynicism has replaced thoughtful conviction as the mark of an educated worldview. In a culture centered on apathy, passion in advocacy is seen as the equivalent of extremism. When Edward Snowden revealed the truth of the surveillance state, the Millennial generation hardly reacted, shrugging off data security issues by insisting they had nothing to hide. If it is absolutely impossible to galvanize the Millennial generation into action, at the very least it would not hurt to change the general attitude toward the NSA’s mass surveillance and bulk collection of phone records from indifference to criticism. The best way to do this is by shifting focus to how the program’s “collect it all” approach has led to what former NSA official William Binney calls a “bulk data failure” – namely that the NSA has become so engorged with data that it is no longer effective. According to Binney, "That's why they couldn't stop the Boston bombing, or the Paris shootings, because the data was all there." Most apathy towards mass surveillance comes from the assumption that they are doing something right, so it could not hurt to show that that is no longer the case. Luckily, the recent 2d Circuit decision in ACLU v. Clapper may very well be a first step the digital revolution to reclaim privacy. Though the court did not reach the ACLU’s Fourth Amendment claim because of its statutory holding, there is hope that the application of the third-party doctrine will be reconsidered in light of the technological developments of the digital age, which allow people to unknowingly reveal a great deal of personal information while completing mundane tasks.


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r2 - 29 Jun 2015 - 15:24:23 - MarkDrake
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