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September 08, 2013 2:58 PM Surveillance and Arrogance

You thought you were living in a democracy, but the National Security Agency disagrees.

By Max Ehrenfreund

There is plenty to read about the National Security Agency’s success in co-opting most commercial encryption technology (see these summaries by Ryan Cooper and Matt Buchanan). I have just one thing to add.

President Obama has said that he welcomes a debate over the proper place of surveillance in a digital society. Perhaps such a debate would be fruitful and informative, and both sides would contribute toward some kind of mutually acceptable compromise. The president has also claimed, essentially, that the government should be able to decide unilaterally what information is available to facilitate that debate. When someone like Edward Snowden makes information available independently, the administration has argued, we are all less safe. Those two arguments seem contradictory, since for a debate to be meaningful, everyone needs to be able to adduce evidence. Still, let’s accept Obama’s argument and suppose, for the moment, that Snowden should not have told anyone about Bullrun or anything else the NSA has been doing recently. Let’s even suppose that for anyone in full possession of the facts, the NSA’s programs are clearly necessary and justified, as the White House has claimed.

The government’s surveillance policies are nonetheless indefensible because collectively, we have already decided, twice, that we oppose them. In a democracy, the government does not have the authority make decisions about the shape of a society independently of public opinion, even if those decisions are justified. The New York Times reports that the NSA has ignored this fundamental principle:

Paul Kocher, a leading cryptographer who helped design the SSL protocol, recalled how the N.S.A. lost the heated national debate in the 1990s about inserting into all encryption a government back door called the Clipper Chip.
“And they went and did it anyway, without telling anyone,” Mr. Kocher said.

Likewise, Congress rejected a Bush administration proposal for a program called “Total Information Awareness,” which the surveillance apparatus then established anyway in secret. That was the program that became PRISM.

I don’t meant to argue that the National Security Agency lacks the legal or constitutional authority to pursue these policies (although that’s also an unresolved question) or that every policy should be decided by plebiscite. All the same, all sides seem to agree that the public should be involved in making decisions that affect all of us so intimately. Unless we live in a fundamentally different society from the society I thought and you probably also thought we lived in, then unelected bureaucrats at Fort Meade are not to be making these decisions on their own. That might not be written down in the Constitution. It’s just a consequence of how we think of ourselves as a nation. “That’s who we are,” as Obama said.

Well, Mr. President, we have already had this debate, and the surveillance apparatus lost. Twice. There’s no point in having it again if the government’s hackers are, no matter what, going to find a way of doing what they want.

Max Ehrenfreund is a former Monthly intern and a reporter at The Washington Post. Find him on Twitter: @MaxEhrenfreund

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