Tolerance for Snooping Among Elites and Masses

Is anyone really upset about government snooping?

Kevin Drum argues that President Obama’s views on the government’s right to snoop have a long provenance:

[Obama] falls squarely into the mainstream of the elite, bipartisan, Beltway consensus on this stuff. He always has, just like every president before him. This isn’t the fourth term of the George Bush presidency, as so many people like to put it, but more like the 16th term of the Eisenhower presidency.

Yet while calling tolerance of snooping an elite viewpoint, he is not sure the hoi polloi are much different:

Will the public finally rebel after learning about the latest way their government is keeping tabs on them? I doubt it. As near as I can tell, most of the public is willing to sell their innermost secrets for a free iTunes coupon.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College Lonon. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over ten thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

38 thoughts on “Tolerance for Snooping Among Elites and Masses”

  1. That would be an interesting experiment. See what percentage of people will fill out a really intrusive questionaire in return for just such a pittance.

    As to the subject of Big Brther snooperey, I’m amazed anyone is surprised that the national spooks are peering up all of our collective rectums. It’s if/when they decide to reach up in there and start rooting around that worries me. I don’t have anything to hide but that doesn’t mean they won’t rip some holes in my works on the way to figuring that out. Who among us doesn’t have some random bit of detail in our life that could be seen as a red flag in a computer program?

    Once when I was raving to an old friend about the latest revelations about the Bushies, he assured me we were just going through a temporary rough patch. Trouble is we’ve been going through a temporary rough patch my whole adult life and I’m older than dirt. It just keeps getting worse and I just keep raving along with a multitude of other poor souls. I see no end in sight. Not a good one at any rate.

    1. it would likely be a high percentage. i like to shield my privacy as much as i possibly can. i don’t own a cellphone, i pay cash at stores that use a third-party service to treat a check like a debit card, i don’t participate in “thank you” card programs. fortunately there are two grocers who don’t have a program like that. whenever i stop and pick up a few things at one of the grocers who have that kind of program and say that i neither have nor want their card people behind me in line ask the cashier to let them use their card so they can get credit for my purchases. after all, every $100 they spend gains them $0.10/gallon off on their fuel purchases.

      1. If you don’t have a loyalty card, and you opt to enter “your” phone number, but instead punch in the store’s area code and 867-5309 (Jenny’s number from the famous song [http://en.wikipedia.org/wiki/867-5309]), I suspect it will work. You can also fill out a loyalty card application and give entirely false information.

  2. Why does anyone who doesn’t care about corporations’ data trolling care so much about the government’s data trolling. I really don’t get that, especially given that money-monopolizers are increasingly in charge of just about everything.

    1. I imagine there are at least two reasons. The first that springs to mind is that corporate surveillance is sometimes easy to evade. I’ve got supermarket discount cards attached to fictional personal data with which I only pay cash. (Obviously, using the credit card even once would give away the game.)

      But I expect the bigger reason is that I’ve made a deal with Google. They give me email accounts for free, and in exchange I put up with a certain amount of snooping and I get fed a bunch of ads. It’s a quid pro quo that I agree to in advance, and that I can walk away from at any time.

      I can’t opt out of the government’s panopticon, and I’m not convinced that I’m getting anything of value in exchange for my lost privacy. I’m aware that they say it’s to keep me safe. I don’t trust them, and neither should anyone else. Our national security apparatus isn’t there to be trusted. That’s not part of their mission.

      1. A corporation can send me junk mail that includes coupons. A government can put me in jail. Isn’t that sufficient?

        1. Laertes nor CharleyCarp answer the question: Why should you care that the government may know as much about you as Zuckerberg?

          You can accept their arguments or not.
          I don’t. I find the opting out argument particularly specious as there really are no opt-in alternatives.
          Also I trust my government with its checks and balance to do right by the data, more than I trust punk Zuckerberg and his 20-something corporate friends. And Drum’s lame punch line about “coupons” is just over the top stupid. No one knows to whom or for what purposes the information Zuckerberg can sell on you will be put to. Coupons? That’s just naive.

          But the larger observation goes unanswered:

          The average American doesn’t mind that the government is looking thru internet traffic for signs of terrorist plots. Nor does the average American care that Zuckerberg knows where they shop, what they eat, who they know, what they read, what are their politics, who their friends are, their sexual preferences, where they live, who they owe, the stocks they own, how much they weigh, etc, etc, etc.

          Why is that? I would suggest it is because we are a social species and for millions of years “sociality” got selected for.
          The melting data pot is the next step in that social evolution.
          And Pandora hopped on that steed and left the barn…. decades ago….

          1. I don’t trust the checks and balances, because it’s a rigged game. And I don’t trust the intelligence professionals who have been spectacularly wrong about most important questions over my entire lifetime.

            And I especially don’t trust them when they say what data they are collecting, and what they are doing with it, must be kept secret from me.

            I don’t care if everyone else on my street is willing to allow the police to enter their homes and search through their drawers. I have a right to demand they get a warrant first, and the fact that my drawers don’t contain evidence of any crimes (at least now they don’t — who knows what the police might “find”) is only one factor in whether I’d decide, on a particular occasion, to let them in without one.

            I don’t care in Zuckerberg, or any of the people on my FB friend list, know that I was hiking with my elderly parents yesterday. I get to make the decision to reveal this. That doesn’t tell anyone anything about whether I want them or anyone else to know who I’m planning to have lunch with tomorrow.

    1. This is not necessarily irrational. One of the better privacy safeguards is being a needle in a haystack, and Google is a pretty big haystack.

      It’s also worth considering that “privacy” means different things to different people.

      One meaning is that of a personal sphere. Even knowing something in the abstract is different from having the details. It’s no real secret what married couples do when they’re alone, but that doesn’t mean I would tolerate a video feed in our bedroom or have my lingerie purchases be part of the public record. I’m not really concerned that Google is a measurable risk in this regard. Yes, I do find it occasionally creepy how they seem to remember Youtube videos I watched months ago, but they also have to comply with a variety of national laws that require them to not reveal that information.

      A second is being protected against snooping by private parties. Such as a potential employer trying to do a background searcher (whether themselves or via an agency). There is no reason to believe that such people would have access to my search history at either search provider (let alone email and such, which would imply criminal offenses in several countries). Admittedly, it does help that I currently live in a country with fairly strict data protection laws, where stuff like this is relatively rare.

      Finally, there’s being protected against unreasonable searches by government agencies. We can distinguish between two types of concerns, privacy vs. targeted and vs. dragnet type investigations. There is — as former CIA director David Petraeus and his lover Paula Broadwell can tell you — very little that you can do to protect yourself against a targeted investigation. It’s a matter of how many resources the government is willing to throw at the case. Some precautions that the more paranoid engage them may make it easier for whoever’s conducting the investigation, because it makes them stand out more from the crowd. When they can tap your phone line and internect connection, bug your home and car, and put you under personal 24/7 surveillance, your search history is the least part of your concerns. The protection against potential abuse consists not of ineffective personal measures, but due process rights that are consistently enforced.

      Dragnet investigations are the final concern. This is where things get really problematic, because anybody can become a false positive in a dragnet search. Dragnet searches use heuristics, not evidence, and it doesn’t take a whole lot of confirmation bias to let things snowball from there. Duckduckgo is a pragmatic decision to reduce your risk of becoming a false positive. At the same time, it doesn’t appear as though any outside agency does have direct access to Google’s servers, either. And, again, the practical concern here is not so much the information that the NSA etc. may accumulate, but what they can do as a consequence. The bigger concern is intelligence agencies becoming a state within a state that is at least partly outside the law.

      1. I’d say the bigger concern is that the data from the ongoing “dragnet” accumulates, and who knows what will be done with it eventually, in a “ham sandwich nation“, where so much is illegal, and the law is so opaque, that essentially everyone is unavoidably, genuinely guilty of some crime. At some point they’ll have enough data to nail anybody they like, and make it stick. Somebody somewhere, for whatever reason, decides they don’t like me, or you, enters our name into a specialized search engine, and out pops a list of the crimes we can be proven guilty of.

        Maybe out comes a list of the people holding particular political views, and the crimes they can be proven guilty of.

        I’d be less worried about the accumulation of data, if we had a far more modest legal code, instead of a mine field nobody can navigate without prosecutorial discretion and a fair helping of not coming to the wrong person’s notice. But we don’t, and a three felonies before breakfast legal code is NOT going to mix well with the panopticon state.

        1. What Brett said.
          I heard somewhere that a favorite prosecutor game is to open up a random page in the Gospels, and figure which crimes Jesus committed on these pages. I don’t know if it is true, but it makes a good point.

        2. I do not disagree at all. I was commenting on the efficacy of individual precautions, not the significant harm that widespread surveillance does to a liberal democracy.

          If anything, the frequently abusive practice of prosecutorial discretion appears to be already plenty harmful, even absent the potential abuses of a pervasive surveillance state. Consider, for example, the Y-12 case, where the charges morphed from misdemeanor trespassing to felony accusations of sabotage with intent to “injure, interfere with, or obstruct the national defense of the United States and willful damage of national security premises”. There’s now doubt that the three broke the law, but the incredible elasticity of crimes and penalties, where minor offenses can be blown up to threaten you with decades-long prison sentences because your actual crime was to embarrass or piss off a government agency (pardon the French), makes a mockery out of the supposed prohibition of ex post facto laws.

      2. The story of the teen girl who Target figured out was pregnant before her father did was remarkable only by the awkwardness of the whole thing. The big retail chain determined, based on the high-schooler’s purchases, that she was pregnant and sent out some coupons for the sorts of things that expectant mothers like to buy. It was awkward because she was living in her dad’s house and didn’t let him know what was going on.

        In normal circumstances, people don’t get upset when they get coupons for things they might want to buy. Google feeds people ads from websites that they might be interested in looking at.

        As for what’s going on between Google and NSA, I’m sure we’re not getting the whole picture from the news reports. NSA might or might not have direct access to Google’s servers, but it does appear there is some sort of cooperation.

        1. I think you’re missing the chief problem with the Target affair, which is that Target can (and in this case, inadvertently did) share the girl’s personal data with a third party without her consent.

          1. Speaking as a parent, I’m not prepared to agree that the parent, of a minor child, actually constitutes a “third party” for these purposes.

          2. There are a few separate points to be made here.

            First of all, Target’s intent wasn’t to inform the father. The girl’s pregnancy was revealed because Target was indiscriminate with how it used personal data. That it happened to end up with the father was a coincidence.

            Second, we do not know that the girl was actually a minor child. The original NY Times story only stated that she was in high school, which means that she was likely, but not necessarily, a minor.

            Third, it isn’t Target’s job to inform parents of their children’s pregnancies, even if that was the intent. Consider, for example, the hypothetical case where the father is the abusive kind who, say, would beat her, perhaps even causing a miscarriage.

            Finally, you may not like it, but under the laws of Minnesota (and most US states), minors do have privacy rights with respect to their health (including sexual health) vis a vis their parents or legal guardians and can give effective consent to treatment themselves, with only a few exceptions, such as abortions and suspicions of child abuse.

          3. I’m assuming they mailed the coupons to the daughter, not the father. (If I’ve got that wrong, everything changes, of course.) Either she’s a minor, or he committed a federal crime in order to see them.

            Why blame Target for the father’s crime, if such took place?

            And you’re right, I don’t like it. If a minor wants that sort of autonomy, they ought to go to court, get emancipated, and move out on their own. A cute deal, giving them these rights, and the parents still being responsible for them. A really bad idea, splitting rights and responsibilities, and giving them to different people.

  3. I guess what bothers me about the spying is that FISA authorized the collection of megaphone data from American citizens, whereas the law establishing the court explicitly states that this activity must be confined to international calls. I conclude that FISA broke the law and they did not properly infirm Congress that they were doing so.

    1. Reading the laws, I don’t think this is correct. The limitation that activity must be entirely confined to international calls applies only to the government acting without court approval. With authorization from the FISA court, there are a couple of different levels of permitted activity. With probable cause, the court can authorize pretty much any surveillance of a U.S. citizen anywhere. With lower thresholds, they can intercept U.S. communications so long as the target was foreign, i.e. communications with a targeted foreign national can be intercepted and possibly one iteration beyond that.

      Further, I think this applies specifically to wiretapping, i.e. reading the contents of communications. The data about the call (which I’ve seen a lot of people calling the metadata and others insisting that this is wrong, because what this controversy really needs is a knockdown, drag-out fight about terminology) is less protected than the contents thereof. It hasn’t been litigated explicitly as far as I can tell, but past rulings (such as that the government may look at information on the outside of an envelope and there are others) make plausible to me the idea that this information has no constitutional protection at all. That really isn’t clear to me.

      What this all confirms to me is that a document written in the late 18th century, when all communications were either face-to-face or involved recording on physical objects, is by its essential nature maddeningly vague when it comes to all of the intangible ways we’ve come up with to communicate at a distance. (Let’s set aside the rare even then case of semaphores, which the Founders probably didn’t think about with regards to the 4th Amendment though it turns out that it would have been nice if they had.) There simply isn’t any way to divine what the 4th Amendment’s authors would have thought about this particular issue. We’re on our own and until such time as Congress can be bothered to legislate on it in a coherent way or the Supreme Court is willing to rule on it in a comprehensive way, we’re stuck muddling along and the executive is going to push the boundaries of what it’s allowed to do. That, after all, is something that the Founders, in their less than infinite wisdom, did have an idea about: they were relying on the other branches being jealous of their own prerogatives and acting to rein in the executive. The last few decades have done a good deal to demonstrate that this is another one of the ways in which their vision of the future was badly flawed.

      1. I have no problem classifying telephone calls, email, Facebook posts, comments on blogs, tweets, hard drives, thumbdrives, DropBoxes, etc., all as “papers” within the meaning of the Fourth Amendment’s reference to “persons, houses, papers and effects.” Note that “papers,” to the Framers, were something other than a class of “effects”; they were not viewed simply as physical “things” that people owned, in other words. The term refers to the means of communication and data storage, as then understood — a particularly important realm requiring protection from governmental investigatory intrusion (“searches and seizures”). Why not understand the term, then, to refer to that which serves the same purposes in each age; as a concept, in other words, regardless of their (unimportant) physical form?

        1. Yes, but 18th century papers didn’t leave behind a trail of metadata about their circulation. And, as a general rule, people kept the archives of their papers within their own homes or offices, not on storage owned by someone else.

          1. “The people” were to be kept “secure in their … papers …., against unreasonable searches and seizures” regardless of whether those electronic “papers” were kept on the people’s “persons” or in their “houses,” or not, according to the Fourth Amendment. I infer from this, that metadata and corporate servers notwithstanding, the dragnet searches (under what is plainly an unconstitutional “general warrant” lacking all particularity) authorized by the FISA court are “unreasonable” and therefore unconstitutional.

          2. But now we’ve reached the point of subjectivity. You infer that a search of someone else’s premises should not include information that you have stored on those premises. Your interpretation is perfectly reasonable but it is far from conclusive. And thus we are left with a 4th Amendment that does not provide any clear answers to the current situation that is so different from what they understood. Throw on top of that the various Terms of Service agreements you have with the folks providing that storage and it isn’t at all clear what your expectations of privacy should be.

    1. A lot of this, I think is cultural. For better or worse, the American electorate likes politicians who are “tough on crime” and put up visible (if illusionary) protections against terrorism.

      On the other hand, try to pass a law that would make the essential details of every American’s tax return public, and you’d have a revolution on your hand. But tax data (not details, but income and taxes owed) is a matter of public record in Norway and has been for centuries. Similar laws exist in Sweden and Finland. They do have their downsides (such as being “shopping lists for burglars”), but they are a established part of the cultures of these countries, so few people seem to find them unusual or particularly invasive.

      Similarly, you can probably ascribe a good part of German paranoia with respect to privacy to cultural aspects, namely the fact that Germany had played host to not one, but two of the scariest police states in recent history. In fact, even though a lot of modern German data protection laws target both private parties and government alike, they had their origin in the German Constitutional Court striking down a national census law and establishing a fundamental right to informational self-determination in direct response to concerns about a “Big Brother” government (the court’s opinion expressly spells out the chilling effects of a surveillance state on individual freedoms), probably not coincidentally while the Stasi was acting unabated across the border. Yet a great many Germans appear to tolerate limitations of other civil liberties in the name of a “defensive democracy” that seem incomprehensible to Americans.

      1. Katja: This is right on the money. Last week I was at a conference at Yale where an alcohol researcher described his experience surveying people in the U.S. about alcohol use and AIDS. A significant number of respondents reported in detail on their booze consumption habits, sexual history, safe sex practices etc. and then refused to answer the question on annual income because it was “too personal”. There are other cultures of course where the pattern would be the reverse.

        Social policy also plays a role. The Swedes have long have registries of people with mental illness, which terrifies American families. But of course insurers can’t effectively deny health care to a mentally ill person in Sweden, so the cultural habits have a rational basis in both countries.

      2. Katja,

        That is, “politicians tuff on crime”. Don’t give those poseurs the dignity of correct spellings. Those pols are the epitome of fallacious thinking: “We’ve got to do something. Ramping up sentencing is something. We must ramp up sentences.”

        The fact that it feeds corporate beasts like Wackenhut and CCA is a bonus.

        1. Dennis, to be clear, my point is that the electorate rather enthusiastically seems to want such policies, and the politicians tend to go where the votes are.

          I do think that these policies are stupid, and do not work. I also happen to think that effective investigation, prevention, and prosecution of crimes is an important interest of society [1], but “effective” is not the same as “draconian” or “without oversight”. In fact, given that we have 9-10 times the incarceration rates of the Nordic countries, Germany, or the Netherlands, while also having significantly higher crime rates (especially violent crime rates), there is strong evidence that whatever we’re doing may be many things, but being “effective” isn’t one of them.

          [1] Admittedly, I may be biased here, because my godfather is a prosecutor.

          1. Dennis: You are being too flip, I think. First off, they are not poseurs, they *are* tough on crime, incredibly tough by historical standards. When you put someone in prison for 25 years for stealing beer, you are not a poseur, you are a 100% genuine draconian.

            Second, the private industry dig is a canard. As Katya notes, these policies have been very popular with the public. If a pol risked getting thrown out of office by an enraged public, he wouldn’t support long sentences no matter how much prison companies benefited or didn’t benefit.

  4. Ed Snowden certainly has set a cat among the pigeons! Interesting to watch the defenses light up, as mainstream media moves into limited hangout damage control mode.

    re: “The bigger concern is intelligence agencies becoming a state within a state that is at least partly outside the law.”

    Done. Long ago. Praetorian, preying, and parasitic.

    Anyone here read Nicky Hagar’s “Secret Power” (1996)? All about NSA’s ECHELON spy system. Was a tad hard to find (i.e. completely censored) in the land of the free U.S.A. for many years. Now online, thankfully.

    I would submit the supposed non-noticing (of totalitarian spy systems) by people — systems like PRISM and ECHELON — happens for the similar reasons you couldn’t buy a copy of “Secret Power” in the US; the same reason as mainstream media will minimise the spying while demonising Mr Snowden as obviously insane.

  5. I for one didn’t realize that the Chief Justice got to pick the judges for FISA courts. Or so said the paper. That seems like a problem right there.

    I don’t think this degree of secrecy is good for a democracy. I want to see some facts about these secret courts. I want to see some facts about the supposed terrorist attacks that are getting prevented right and left. Because otherwise, I am a good American and I trust, then I verify. I no longer think Congress is trustworthy for oversight purposes, I’m sorry to say. They have let things go too far. And if all this is legal, then maybe the laws need to change. It’s not written in stone.

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