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When Privacy Jumped The Shark


Whatever the fine points of the NSA’s snooping, anyone who cared could surmise enough of the big picture to be wary long before the Snowden leaks filled in graphic details. The NSA is crying wolf when it claims that his disclosures are an enormous boon to terrorists, unless you believe terrorists are morons. There have been NSA leakers before Snowden, and they provided plenty of connectable dots. A remarkable two-year Washington Post investigation published in 2010 found that as of then, some 854,000 Americans had top-secret clearances—nearly one and a half times the population of the nation’s capital. Nearly a third were private contractors like Snowden. The Post also discovered that after 2001, intelligence agencies began building 33 new facilities in the Washington area alone, with a total square footage (17 million) almost equal to three times that of the Pentagon. What could all these people possibly be up to? What was all that space needed for?

In March 2012, James Bamford, for three decades the most authoritative journalist on the NSA beat, provided answers in a Wired cover story prompted by a clandestine $2 billion NSA data center under construction in Utah. “Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private e-mails, cell-phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter,’ ” Bamford reported. Why? “The NSA has turned its surveillance apparatus on the U.S. and its citizens.”

In fact, the prolific public clues about the NSA’s intent also predate 9/11. In the Jerry Bruckheimer–Tony Scott movie Enemy of the State (1998), a fictional retired NSA officer played by Gene Hackman says, “The government’s been in bed with the entire telecommunications business since the forties. They have infected everything. They can get into your bank statements, computer files, e-mail, listen to your phone calls.” The NSA’s then-director, Michael Hayden, was so concerned about this fictional leak that he tried to mount a PR offensive to counter it. Just a few months after that film’s release, Sun Microsystems CEO Scott McNealy in essence confirmed it with his own famous dictum: “You have zero privacy anyway. Get over it.”

And so we did learn to stop worrying and love the promiscuous use of Big Data by business and government. Mark Zuckerberg was telling the truth, even if to serve his own interests, when in 2010 he explained his rationale for the constant, incremental loosening of Facebook’s dense and ever-changing privacy policies: “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.” The Snowden leaks show that Facebook and PRISM had aligned six months earlier, and in 2010, as the Times recently discovered, the keeper of Facebook’s secrets, its chief security officer, Max Kelly, defected to the NSA. But even as early as 2008, an internal memo at the U.S. Citizenship and Immigration Services had recommended that the agency’s fraud office start exploiting social networks as an “excellent vantage point” for observing “the daily life of beneficiaries and petitioners” suspected of wrongdoing. The memo—cited by the public-interest lawyer Lori Andrews in her book I Know Who You Are and I Saw What You Did—was nothing if not prescient. Facebook was a gift to surveillance that would keep on giving, it argued, because the “narcissistic tendencies in many people fuels a need to have a large group of ‘friends.’ ”

In the aftermath of the Snowden leaks, those who want to shut down dubious NSA programs have been hard pressed to come up with ways of getting that done. The ACLU is suing, and so are Rand Paul and Larry Klayman, the right-wing activist known for his quixotic legal battles against Bill Clinton in the nineties. Commentators at The New Yorker and The New Republic are calling for a national commission. Dianne Feinstein, the chair of the Senate Intelligence Committee and a fierce NSA defender, has proposed monthly hearings, presumably to bore the country into inertia. No doubt the Obama administration will toss out a few crumbs of transparency to satisfy its liberal base, but neither the president nor his party’s leaders, exemplified by Feinstein, Harry Reid, and Nancy Pelosi, want change from the status quo. Neither would Hillary Clinton. The same is true of Republican leaders, despite their professed loathing of big-government overreach in Obamacare and at the IRS. That leaves Paul on the Republican side and the two Democratic Senate apostates, Mark Udall and Ron Wyden, who have been on the NSA’s case for years. They have about as much of a chance of bringing change in 2013 as the former senator Russ Feingold did in his lonely opposition to the Patriot Act in 2001. Little short of a leak stating that the NSA is tracking gun ownership is likely to kindle public outrage.


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