Declan McCullagh reports today on Wisconsin Republican F. James Sensenbrenner's draft legislation that would require Internet service providers to deliver records of users' surfing to the federal government. The ostensible target this time: Kiddie porn. The real target: The American people's freedom to explore the Internet and ideas in privacy, because a few people in government think they know better what we should be doing.
Yes, of course, we should work to eliminate kiddie porn. How Turning the American population into a suspect class is the least efficient and most error-prone approach to protecting civil society.about doing it the old fashioned way, by targeting kiddie pornographers? It is relatively simple work to find links to kiddie porn and place court-approved monitoring on those sites to identify who is uploading and downloading pictures. Why, we must ask as Americans used to an environment that supports free expression and the freedom to explore even the most controversial ideas, are all U.S. Internet users the target of increasing government surveillance?
Likewise, instead of monitoring U.S. phone calling patterns to identify potential terrorist calls (and the attendant millions of false positives), the U.S. government ought to use legal means to find and arrest or kill terrorists. Adding infinite complexity to the system by watching every American's phone calls doesn't make sense and is at odds with American tradition. Conservatives, too, should be outraged by these programs as much as anyone, after all it was Ronald Reagan who said in his first inaugural address:
In this present crisis, government is not the solution to our problem; government is the problem. From time to time we've been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else? All of us together, in and out of government, must bear the burden. The solutions we seek must be equitable, with no one group singled out to pay a higher price.
If we can't trust Americans to be innocent until proven guilty, government becomes a prison without walls, where everyone is watched for any transgression. That's exactly what we seem to have today in the United States, and the telecommunications network is a keystone of that surveillance.
Before the critics of anything anti-surveillance jump in, again, to point out that I suffer from a "pre-9/11 mentality" or that tracking user surfing isn't surveillance and that only the guilty have to worry, let's be clear: Recording and reporting what everyone does on the Net is surveillance. Surveillance is a function of government the United States has strictly controlled in order to minimize the government's, or an individual who gains access to surveillance data, ability to restrict individual choices or facilitate the use by a political party of data gathered by government to blackmail or intimidate citizens.
For all his good intentions with regards the security of the United States, President Bush suffers from an idealism that is much more dangerous than the pre-9/11 mentality, because he apparently ignored the 20th century. He has repeatedly said that he can look into the hearts of others and determine whether they are good or evil, the same kind of niavete that led Neville Chamberlain to appease Hitler at Munich. He actually suffers from a pre-Auschwitz mentality that refuses to acknowledge the critical lesson of the 20th century, the extraordinary depths of evil man, especially when left unrestrained by law, can acheive. Hannah Arendt, in her essay Organized Guilt and Universal Responsibility, wrote that "realiz[ing] of what man is capable...is the precondition for any modern political thinking."
Bush's pre-modern pre-Auschwitz faith in the goodness of leaders he has the opportunity to meet and look in the eye has been diplomatically disastrous. But at home his belief that he can suspend some liberties in order to protect all liberties is extraordinarily dangerous because it opens the door to abuse today and far into the future.
Believing in his own good intentions and his ability to intuit the intentions of others, Bush has established a precedent that can be abused by anyone who gains even a modicum of power in this country, including his own close associates, many of whom have proved less than trustworthy. Anyone who attended to the lessons of the 20th century would recognize that the rule of law, not men, is the only safe choice when seeking to protect liberty.
Politically, Bush has resorted to fear as the only motivator for his decisions and national policy, because fear can appear to justify governmental exceptionalism. This will lead to a disastrous end for American liberty if we don't reverse course immediately, by fighting the Sensenbrenner bill, the NSA call database or any policy that begins with the assumption that Americans must be monitored in order to keep them honest and loyal.
Consider that in the current environment of fear that is the United States every phone call could be a terrorist plot and every illegal alien coming to pick fruit for the summer is an invading economic soldier, the government has turned every citizen into a would-be criminal who must prove their innocence by refraining from the possibility they might be recorded in the wrong place at the wrong time. Anyone who has clicked a link with an innocuously labelled link only to find themselves staring at filth needs to be worried that the surveillance society will sweep them into a specific criminal category, transforming their innocence into a Kafka-esque guilt.
This is, in short, an insanely frightened country seeking to destroy enemies real and imagined, even among its own citizens. A nation of laws, where men do not step in to create exceptions based on their instincts about other people's souls, does not look like America today. IT managers and users need to be completely tuned to the implications of this fearful environment, because the tools they use can be configured to project that fear directly into their customers lives and their own Web usage, respectively.
McCullach provides straightforward proof of this campaign to criminalize life in Attorney General Alberto Gonzalez' speech to the National Center for Missing and Exploited Children, where he characterized the Internet itself as a criminal venture: "At the most basic level, the Internet is used as a tool for sending and receiving large amounts of child pornography on a relatively anonymous basis." The Internet is a tool, but it is not a tool designed for sending and receiving large amounts of child pornography. Nor should it be a tool for monitoring every action of the ordinary citizen just because it is possible.
According to McCullach, Sensenbrenner's bill would make it a felony for anyone to have a link on any part of their site that pointed to kiddie porn, which would implicate Web site operators and bloggers in a criminal conspiracy because of comment spam that included such links.
The jails aren't big enough to imprison everyone or even every Web manager, so it would make more sense to use the legal process to target surveillance to only those who are actually producing and distributing kiddie porn. Or to address any other criminal enterprise, terrorist plotting or ill-intended undertaking, for that matter.
Turning the American population into a suspect class is the least efficient and most error-prone approach to protecting civil society.