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Commentary
Surveillance Society
November 7, 2005
Ivan Eland
Since 9/11, the FBI, once organized to fight crime, has been undergoing a makeover to focus its efforts on preventing future terrorist attacks. To help the agency in its efforts, in 2001, the Congress recklessly passed and is now about to renew the USA PATRIOT Act, which dramatically increased the surveillance powers of law enforcement. Yet, the truth is that terrorism (even including the 9/11 attacks) is a rare phenomenon in North America that kills far fewer people than ordinary crime, car accidents, or medical problems. As tragic as the 3,000 deaths from the aberrant 9/11 strikes were, the worst effect of those incidents was the self-inflicted wound from the conversion of America from the “land of the free” to the “land of the watched.”
The PATRIOT Act gives the FBI the power to collect information on people who are not suspected of committing a crime. For example, the FBI can issue a “national security letter” to obtain a person’s financial, library, telephone, Internet, and e-mail records, as well as an individual’s customer and employment history with businesses, by merely certifying that the information is “sought for” or “relevant to” an investigation “to protect against international terrorism or clandestine intelligence activities.” Thus, the FBI can nose into the affairs of anyone who comes into contact with a suspected terrorist and will now retain, in its database even after the investigation is closed, the information gathered on innocent people. Visions spring to mind of FBI agents poring over computer-generated lists of anyone who has ever attended a Cat Stevens concert.
Even worse, such national security letters can be issued by FBI supervisors in the field and need no approval by a prosecutor, grand jury, or judge. National security letters would appear to run directly afoul of the U.S. Constitution’s Fourth Amendment, which states that “no Warrants shall issue, but upon probable cause [that the person has committed a crime], supported by Oath or affirmation…” In guaranteeing this vital civil liberty in the Bill of Rights, the founders made no exception even for alleged “national security” considerations. Furthermore, those businesses or libraries served by the letters cannot tell the targets of the searches about them, which some courts have ruled violates the First Amendment rights of free speech. The FBI has also stiff-armed congressional inquiries into how the secret letters are being used. Finally, according the Washington Post, the FBI has yet to offer any example of a terrorist plot being disrupted by a national security letter.
The national security letter, however, is only one of the many provisions of the USA PATRIOT Act that broaden government surveillance powers while having little demonstrable effect on preventing terrorism. At the same time, these provisions erode, by diminishing judicial or congressional oversight, the checks and balances of the Constitution. And this is not the first time that expanded law enforcement powers have proved ineffectual. In 1996, the Anti-Terrorism and Effective Death Penalty Act severely restricted civil liberties in the United States but did not prevent the attacks on the Pentagon and World Trade Center five years later. Why the American people repeatedly reward failure by tolerating increases in the authority and budgets of government security agencies is a mystery.
In addition to the pernicious direct effects of all this amplified government surveillance on the American public, the indirect effects may be far worse. In an age of big government, the business and non-profit sectors tend to take their cues as to what is acceptable from the government. Increased government surveillance creates a general societal norm for increased surveillance in the workplace. For example, until Congress made their use by businesses illegal, private employers were following the lead of government security agencies by administering demonstrably unreliable polygraph tests to their employees. Even now, some businesses, which at least rhetorically advocate economic liberty, and some non-profit organizations that propound individual liberty regularly monitor their employees’ e-mail correspondence and open their mail. One can argue that there is a legal difference between the government and private entities engaging in such Orwellian practices, but the private sector is undeniably reacting, whether consciously or subconsciously, to social norms heavily influenced by government action. One would hope that the private and non-profit sectors would be more enlightened than the government. After all, such oppressive surveillance of ordinary employees—where no evidence of wrong-doing exists—causes anger and morale problems among employees, drives some talented workers to “vote with their feet” to less intrusive employers, and wastes valuable executive time and resources on the unnecessary control of employees.
Communism in Eastern Bloc nations failed because so many societal resources were wasted on control, leaving few available for individual initiative and creativity. Liberty and privacy make people happy, creative, productive, and rich. The U.S. government—and the businesses and non-profit groups that are following the “control-oriented” social norms fostered by government action—should take heed and let freedom ring.
 Ivan Eland
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Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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