In this week's Last Days, Dave Schmader writes about the disturbing 2013 trend of Americans needing help and other Americans responding by shooting them, killing the (literally) helpless. He wraps up one item, about a confused 74-year old getting shot by a skittish 34 year-old in Georgia, with the astute observation: "Let us simply note how nobody fears for his life like the holder of a loaded gun. Funny how that works."
It is funny—the people who hold the power in any given situation tend to be the ones who behave the most fearfully. That seems especially true of governments these days. The harder they pry at our lives, trying to make us completely transparent, the harder they work to make themselves opaque. Call it the law of inverse transparency: We should know increasingly more about you, but you should know increasingly less about us. For democracy's sake.
You can pick surveillance stories almost at random these days and see the contradiction at work.
Example one: The military has just announced it will no longer inform the public of the number of hunger strikers at Guantanamo Bay which, as the Washington Post puts it, "had long been an unofficial barometer of conditions at the secretive military outpost in Cuba."
Meanwhile, the Post also reports that the NSA is collecting massive amounts of cell-phone location data "on a planetary scale," with billions of records gathered every day. According to the Post, the NSA says it collects the records "incidentally," a legal positioning that "connotes a foreseeable but not deliberate result." Specifically, it's looking for relationships between people by analyzing patterns of how cell phones move.
CO-TRAVELER and related tools require the methodical collection and storage of location data on what amounts to a planetary scale. The government is tracking people from afar into confidential business meetings or personal visits to medical facilities, hotel rooms, private homes and other traditionally protected spaces.
“One of the key components of location data, and why it’s so sensitive, is that the laws of physics don’t let you keep it private,” said Chris Soghoian, principal technologist at the American Civil Liberties Union. People who value their privacy can encrypt their e-mails and disguise their online identities, but “the only way to hide your location is to disconnect from our modern communication system and live in a cave.”
Example two: Will Potter has a story in Mother Jones about a man who's gotten so good at filing Freedom of Information Act requests with the FBI that the bureau is asking the courts to stop him—in effect, asking permission to ignore its legal duty to fulfill FOIA requests for transparency.
Invoking a legal strategy that had its heyday during the Bush administration, the FBI claims that Shapiro's multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism."
So-called mosaic theory has been used in the past to stop the release of specific documents, but it has never been applied so broadly. "It's designed to be retrospective," explains Kel McClanahan, a DC-based lawyer who specializes in national security and FOIA law. "You can't say, 'What information, if combined with future information, could paint a mosaic?' because that would include all information!"
Meanwhile, Guardian editor Alan Rusbridger was summoned to answer questions in front of a government committee—and endure suggestions that he is a traitor and would have been a Nazi collaborator—simply because he and his reporters are excellent at their jobs. (As Amy Davidson wrote in the New Yorker: "When a government calls journalists traitors the questions should begin, not end.")
Example three: Have you been following the "no-fly" case in San Francisco? That's got the law of inverse transparency all over it. At its center is a Malaysian woman who, as a Stanford Ph.D student in 2005, was blocked from boarding a plane in San Francisco, handcuffed and detained, and was eventually allowed to return to Malaysia, but has been prohibited from returning to the US. The central question: Who's watching the terrorist watch list? The NYT reports that it has ballooned to nearly 1 million people, but has very little oversight (that anyone on the outside can detect). Nobody knows how you get on it and there's no redress or process for trying to get off it:
“People who are accused of being enemy combatants at Guantánamo have the ability to challenge their detention, however imperfect that now is,” said Hina Shamsi, a lawyer with the American Civil Liberties Union, which is representing the plaintiffs. “It makes no sense that people who have not actually been accused of any wrongdoing can’t challenge” their inclusion on a watch list.
The trial got off to an absurd start on Monday when one of the witnesses couldn't make it to the courthouse because she was apparently on the no-fly list, too. The airline told the witness that it had gotten a call from Homeland Security with instructions to keep her off the plane and away from this trial about no-fly list accountability.
Ladies and gentlemen, the law of inverse transparency!