Megan McCardle suggests that the Patriot Act, while bad, is hardly a harbinger of a police state. She points out, correctly, that American history is full of violations of civil liberties, some of them—the suspension of Habeas Corpus during the Civil War, the internment of Japanese during World War II—probably worse than anything the Bush administration has done. And if we’re looking at things from a narrowly legalistic perspective, it’s plainly not the case that we’re in a uniquely bad place. The courts were far less protective of civil liberties for most of the 20th century than they are today.
However, I think this telling of things misses some important context. Most importantly, it misses the point that the federal government has changed a great deal over the last century. In 1908, the United States was a balkanized country with a small, distant federal government. Few people had telephones and (obviously) nobody had a cell phone or an Internet connection. The federal government, for its part, didn’t have an NSA, a CIA, or an FBI, and even if they had existed they wouldn’t have had access to the kind of transportation, communications, and computational capacities that they have today. All of which is to say, if the federal government circa 1908 had wanted to build a panopticon police state, they wouldn’t have been able to do it, because they wouldn’t have had the technology or the manpower to do so.
So the first 150 years of American history just isn’t relevant when we’re talking about the rise of a modern police state. There’s a reason Russia and Germany got totalitarian police states in the middle of the 20th century; this was the first time modern transportation and communications technologies gave governments the ability to exert that kind of control. And while we missed the rise of totalitarianism, the post-World War II period was an extremely bad one from a civil liberties perspective. J. Edgar Hoover was an extremely bad man who wielded a great deal of power with essentially no accountability. The federal government spied on activists, journalists, politicians, and celebrities, and those with access to these surveillance tools used them to blackmail, manipulate, and ruin those they didn’t like.
Luckily, Watergate happened, and Congress passed a series of reforms that dramatically enhanced judicial and Congressional oversight of the executive branch. This were a lot better in the early 1980s than they had been since the early 20th century. And since then, we have seen a gradual erosion of those safeguards. I just put together a presentation on the subject, and it’s a long list: CALEA, roving wiretaps, national security letters, Carnivore successors, the Patriot Act, warrantless wiretapping, and probably other programs we don’t know about.
If this process continues unchecked, we will reach a point where the NSA has the technological capability to track a breathtaking amount of information about every American. And if the wrong people get ahold of this infrastructure, they can cause a lot of big problems. If the surveillance state is allowed to grow for another decade or two, we likely will reach a point where civil liberties are in the worst shape they’ve been in American history.
Will that happen? I’m optimistic. I think we’ll be able to at least slow the process down and impose some additional oversight. But if it doesn’t happen, it will be precisely because thousands of Americans were alarmed enough about the developments to fight back against them. I would far rather over-estimate the threat and be proven wrong than to underestimate the threat and wake up one morning in a world where the 21st century’s J Edgar Hoover has the power to blackmail anyone in America.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.