American Surveillance: Interview with Anthony Gregory

American Surveillance by Anthony Gregory

The United States has been conducting surveillance of its citizens since it was created, but the ability of any government to spy on its citizens has dramatically improved in the digital age. How should United States balance national security and personal privacy? Does the Constitution provide adequate protection against unrestricted government surveillance? What can advocates do to strengthen personal privacy rights? These concerns will only intensify in the years to come.

Anthony Gregory's new book American Surveillance: Intelligence, Privacy and the Fourth Amendment published by the University of Wisconsin Press examines the history of surveillance in the United States and grapples with these problems. He examines what the role the Fourth Amendment's prohibition against illegal government searches and seizures has played in protecting Americans from government surveillance and how courts have frequently circumvented it. Daniel Ellsberg has described Gregory's book as essential to "those who want to protect liberty, peace and justice, and who want to take the debate to the highest level, will find this book indispensable."

As a Research Fellow at the Independent Institute, Gregory has written pieces published by The Atlantic, Christian Science Monitor, Salon, Reason, and many others, and authored The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror.

Here is our interview with Anthony Gregory.

How did you first become interested in writing about the American surveillance state? What attracted you to the topic?

Surveillance and privacy became some of the biggest civil liberties issues after 9/11, and my boss David Theroux at the Independent Institute urged me to write something in light of the NSA revelations. I had mostly focused on civil liberties in my work there. After my first book, which explored the historical and legal problems posed by detention policy and habeas corpus, surveillance made a lot of sense.

Anthony Gregory

When did the American government start spying on both foreign nationals and its own citizens? What did they hope to achieve?

As soon as there was a United States government, there was a foreign intelligence apparatus. In late 1775 Congress created Committee of Secret Correspondence, which conducted many intelligence functions. Spying on domestic subjects arose with the war as well. As with wartime surveillance generally, Congress sought to understand the foreign enemy’s strategies and tactics, and to keep an eye for potential disloyalty among its own population.

The right to privacy is not explicitly cited in either the Constitution or the Bill of Rights. Instead, this legal concept has been cobbled together overtime. How has the concept of personal privacy changed in the United States? Do we have a fundamentally different notion of what constitutes privacy now than when the 4th Amendment was drafted?

We have a very different understanding of privacy today. Today it relates much more to the intimate life of the individual rather than private property. Up until the late nineteenth century, there was very little talk of “privacy” in this modern sense; the Fourth Amendment, which rarely inspired court decisions, concerned the integrity over physical bodies and belongings. There were statutory protections of privacy concerning the mail, but government warrantless wiretapping, as an example, was mostly legal because it did not involve physical trespass, but rather intangible signals. The Supreme Court didn’t apply modern conceptions of privacy through the Fourth Amendment until the late 1960s. Conservatives who rail against the modern conception of privacy as discovered by liberal jurists must therefore find another argument against such government wiretapping as conducted by the NSA.

The 4th Amendment protects Americans from “unreasonable searches and seizures,” but it does not appear to be well suited to combating modern surveillance. Has the 4th Amendment served as a meaningful bulwark against expanding surveillance? Should Americans consider drafting a new constitutional amendment to codify American privacy protections that reflect the realities of the new surveillance state?

I’m not sure that a Constitutional amendment is the way to go. Even where I think the Constitution is fairly clear-cut, I see frequent violations of civil liberty. And the courts have to deal with legislation and policy demands that are simply incompatible with a civil libertarian’s most preferred reading on the law. Every time the Court makes advances in interpreting the Bill of Rights more favorably toward liberty in some respect, there is an institutional impetus to restrain liberty in other respects.

Ultimately, the policy demands must change for surveillance to lessen. A robust national security infrastructure to police the world will necessarily tend toward energetic intelligence gathering abroad, and some at home. An ambitious domestic program, particularly in crime fighting but also in the policy areas undertaken by our administrative state, will also invariably compromise privacy. These policy priorities must change to make a difference in surveillance, and for them to change, American political culture must change. Legal reform is important but might be a lagging indicator of cultural change.

The need for intelligence and the right to privacy are in opposition to each other. If you want to gather intelligence you will most likely have to violate personal privacy. Has the United States had difficulty balancing the desire to gather intelligence and the right personal privacy? Has this balance shifted over time?

There is a tension, if not always an opposition, between privacy and intelligence. The government tends to strike a balance in favor of its policy goals and institutional interests. The balance has shifted over time, but in very complicated ways. Some of this is a product of the distinction between foreign and domestic theaters, which shifted radically when the United States began more regularly extending its power far beyond the continent. Sometimes domestic surveillance was seen as natural response to foreign threats that did not respect borders. A rocky path brought us to the global war on terror. I think some civil libertarians tend to exaggerate the trajectory as one toward diminishing privacy. In some ways, we had worse privacy violations before. In the nineteenth century, the government trampled communications privacy to stop abolitionist literature or material deemed obscene, including contraception information. In World War I and the Cold War, it was less safe to be a dissident. The technological capacity is far greater now, but given that things could be worse. That’s not a reason to be complacent.

Your last book, The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, looked at the history of the legal principle of habeas corpus. Do you see any connection between the rights of habeas corpus and personal privacy?

Privacy rights and habeas corpus are both civil libertarian sacred cows and discussion about both of them tends toward historical and theoretical oversimplification. In terms of history, there is a declension narrative we see, where habeas corpus rights and Fourth Amendment principles are these rights going back to medieval England and are only eroded over time, particularly recently. In both cases, beginning in England, the champions of civil liberties tended to overstate how well these rights were protected or even conceptualized. They exaggerated the Magna Carta’s protection of rights against search, seizure, and arbitrary detention, and always exaggerated the newest threat to liberty as something novel. This continued well into the 21st century United States. It was Bush who all of a sudden destroyed an ancient right originating in 1215, or it was Obama who all of a sudden abolished the Fourth Amendment. In both my books I try to dispel this reverse-Whiggish history. I also try to emphasize that both privacy and detention violations are a somewhat understandable outgrowth of the modern leviathan state.

In terms of legal theory, protections against unlawful search, seizure, and detention are also complicated by the fact that they are both judicially constructed. Champions of such protections, particularly of the libertarian variety, want to see these legal rights as natural corollaries of some fundamental principles concerning person and property. On one level they can be—detention is a physical restriction on the body, and searches can target physical space and bodies—and yet the determination of whether a detention or search is “just” or “legal” quickly becomes a question of legal process, a process involving claims of legal authority, not just claims of right. It’s often unclear what the right answer is, because the law is written and interpreted by fallible people and is highly historically contingent. But even if we put all that aside, habeas corpus has often concerned disputes over civil rights beyond freedom from detention, and certainly the Fourth Amendment has come to protect rights that don’t correspond clearly to person or tangible property at all, but rather personal information.

In short, both my works have in common an attempt to look closely at civil liberties issues that I take very seriously but that I think their champions (as well as detractors) have oftentimes gotten confused in both history and legal theory.

Remarkably, the current presidential race has included almost no discussion of issues related to either surveillance or personal privacy. After all of the hand wringing that occurred after the Eric Snowden leaks does this omission surprise you? What would it take for this issue to become more important?

I guess there’d have to be another set of revelations but I think today Americans are very desensitized. Even in 2013 or 2014 I doubt it would have changed the outcome of a national election. Neither party has much interest in taking a strong stand on these questions.

During your research, what did you learn that surprised you the most?

Early on, learning about widespread American colonial use of warrantless and general searches should not have surprised me, but it did.

Who do you hope to reach with your book?

I want to reach anyone interested in the subjects of intelligence and privacy rights. More specifically, I hope to encourage the conversation between those who see these questions through the lens of surveillance and privacy, and those who think about them in terms of intelligence gathering and security. I also hope to encourage those in the policy debates over security intelligence and the Fourth Amendment to become more careful and clear about what they’re arguing, and to appreciate the nuance and complexity arising from the legal and historical problems of surveillance.

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