Musings on Rhetoric and Labeling in the Post-Snowden Era (Part 2)

In the days since my last post, we have seen more news pieces likening the U.S. to George Orwell’s novel 1984 and also ones suggesting that large-scale surveillance is potentially used in the name of not only terrorism prevention but also the war on drugs.

To follow up on the first part of my post, here are some things we should consider to determine whether labels like “surveillance state” are useful:

–          Some “privacy moderates” think that civil libertarians are paranoid about the risks of government surveillance and that they display hysteria in their speech as a result. Some civil libertarians think that privacy moderates are paranoid about the risks of terrorism and that they display hysteria in their speech as a result. Rhetoric that veers into hyperbole can exacerbate the chasm between the two groups.

–          At the same time, strong labels make people pay attention who otherwise would not. One of the big concerns of civil libertarians is that, even once disclosed, government interventions are extremely difficult to roll back, such as seen recently in the refusal of the House of Representatives to constrain the power of the NSA. This is one of the reasons that civil libertarians would argue for restraint in the first place. Hence, having the public pay attention and intervene early is critical. Meanwhile, surveillance advocates would state that because death is irreversible, missing out on useful information that surveillance would yield is not a chance that we can take (cf. Governor Chris Christie’s recent attack on civil libertarians and his invitation to have them come visit the widows and orphans of 9/11).

–          The individual victims of terrorism are visible. The individual victims of surveillance are often out of sight. Using strong labels like “surveillance state” may overcome some of the potential bias toward focusing solely on the former group.

–          The level of oversight that some surveillance activities receive is questionable. Some of the things Snowden revealed should not have been a secret. The judiciary is likely to be biased in favor of terrorism victims and be fairly generous in its review of the actions of the executive branch, and sounding the “surveillance state” bell helps to alert us to push for more oversight ourselves. Not to mention that it is highly questionable whether even the victims of terrorism themselves do or would all endorse the sacrifice of civil liberties.

–          The public at times suffers from label fatigue at the hands of the media. Users of strong labels should exercise some degree of restraint if they want to remain effective.

–          Some of the people who throw around strong labels are conspiracy theorists and other fringe groups who lack credence. This makes it more difficult for mainstream individuals to use the term in sensible manners.

–          The interests of the average citizen and the interests of the executive branch will likely never be fully aligned. Having even a single serious terrorist attack take place during a President’s term may be one of the worst political things to happen to him. Even assuming that a particular high level of surveillance was the only way to avoid it, having a single serious terrorist attack happen during a presidential term may not be one of the worst things that can happen to America depending on the trade-offs that said surveillance would have entailed. Using labels like “surveillance state” creates antagonism between citizens and the state. Sometimes that is a good thing if it reminds us of the risks inherent in the misalignment of interests.

In summary, I think that strong labels have their place in the political discourse but have to be treated with circumspection. It is acceptable to grab people’s attention by calling a country that consistently and pervasively collects large amount of data on everyday citizens a “surveillance state”. There are potentially Orwellian aspects to the government’s ability and potential willingness to see what citizens search on Google with no pre-existing reasonable suspicion. Plenty of commentators and events in history have debunked the idea that if you have nothing to hide, you have nothing to fear. At the same time, substance must back up strong labels. That substance can take the form of revelations that the government is acting in ways that are unethical, dangerous, and/or downright illegal. If such revelations are accurate, accusations that America has become or is turning into a “surveillance state” may well be powerful rather than hysterical.

And speaking of labels, what do we call Edward Snowden? According to John Boehner, Dianne Feinstein, and Nancy Pelosi, he is a traitor or criminal, but—possibly symptomatic of the misalignment of interests between politicians and citizens of which I spoke—as Danielle Citron mentioned in a recent post, polled Americans believe by a significant margin that he is a “whistle-blower” rather than “traitor”. Whatever the imperfections of that one particular poll, the general stance of the public has caused some commentators to wonder if we are likely to encounter jury nullification if Snowden is ever placed on trial.

My two-part post asked if strong labels in the surveillance context are truthful and useful. The complete spiritual command is actually: “Before you speak, ask yourself, is it kind, is it necessary, is it true, does it improve on the silence?”.  Calling America a “surveillance state” is potentially justifiable if the term is understood as non-binary. It may be necessary as a heuristic that will make people’s ears perk up and remind them that the role of government is as servant rather than master. It is kind if it protects the interests of large swaths of the population.  In the best case, it not only improves on the silence but also enables us to improve on future silences without fear of repercussions.

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2 Responses

  1. Jimbino says:

    State collection of data regarding its citizens is the serious problem. When the Nazis invaded Holland, it was already too late for the Jews, Gypsies, Gays, Jehovah’s Witnesses and handicapped, because the Dutch government had carefully maintained data on all the residents.

    Trust in a benign government is of no use once a malevolent government takes over.

  2. Monroe Freedman says:

    I have posted on SSRN a short essay titled, Our Inalienable Rights Can Never Be Recovered. The link is: