The government has written rules for itself, giving it sweeping, secret powers to spy on the private communications of millions of citizens. Private corporations are compelled to cooperate with the effort and face severe penalties if they disclose what is going on. Some courts theoretically have oversight on all this – but the courts meet in secret and their rulings authorizing spying are likewise secret.
In public, the government acknowledges that some data collection is going on but insists that it's limited, proportional, and most important of all, vital to keeping citizens safe. "Trust us" is the mantra repeated by the people in power.
The above, with its Orwellian overtones, describes the practices of the US government over the past decade, even as it insisted it was a beacon of freedom and criticized the surveillance regimes of other countries. While the general outlines of expanded government surveillance have been known since the Patriot Act was first passed by overwhelming support of the US Congress in Oct. 2001 (98-1 votes in favor in the Senate; 357-66 votes in favor in the House of Representatives), this week the dam on domestic surveillance operations by the secretive National Security Agency (NSA, sometimes jokingly refereed to as "No Such Agency") broke.
On Wednesday, Britain's Guardian newspaper reported a secret warrant that gave the National Security Agency and the FBI full access to the "metadata" of all calls and emails placed over Verizon's network: Though the warrant doesn't allow for eavesdropping, the so-called metadata include what numbers call other numbers, the location of the calls, and their durations. The information is used for pattern analysis, sifting through huge amounts of data to try to determine unusual calling activity that might indicate illegal activity.
On Thursday, The Washington Post (with The Guardian close on its heels) carried another leak revealing that the NSA and FBI "are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, emails, documents, and connection logs" under a program called PRISM, and that the program "was launched from the ashes of President George W. Bush’s secret program of warrantless domestic surveillance in 2007, after news media disclosures, lawsuits and the Foreign Intelligence Surveillance Court forced the president to look for new authority."
The companies involved are among America's and the Internet's biggest: "Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple." (PalTalk is a popular instant messaging and chat-room service.)
Is this illegal? No. A variety of laws and executive orders under Presidents Bush and Obama make this all perfectly legal. But privacy advocates see a slippery slope to enhanced government intrusion into privacy, and in that respect, provide an interesting set up to President Obama's meeting new Chinese leader Xi Jinping this weekend in California.
In 2010, Google pulled out of mainland China to great fanfare, saying it wasn't going to put up with the government's mandatory censorship regime. That followed a series of coordinated hacker attacks on its servers that the company said it suspected were designed to compromise Gmail accounts used by Chinese human rights activists. At the time, Secretary of State Hillary Clinton said the US government had "been briefed by Google on these allegations" and that "the ability to operate with confidence in cyberspace is critical in a modern society and economy."
Later that January, Clinton gave a speech on "Internet Freedom" in which she touted the US government's efforts to bring a freer Internet to China, Moldova, Colombia, Lebanon, and Iran, and spoke of the need to balance between looking for terrorists on the Internet and protecting against systematic violations of citizen's privacy:
Now, all societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al-Qaida who are, at this moment, using the internet to promote the mass murder of innocent people across the world. And hate speech that targets individuals on the basis of their race, religion, ethnicity, gender, or sexual orientation is reprehensible. It is an unfortunate fact that these issues are both growing challenges that the international community must confront together. And we must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.
In the case of the US government's use of the NSA, there's no evidence at attempts to stifle free speech or misuse of the data collected to harm American citizens or, as yet, any evidence of how many emails have been read or if any have been retained in government databases. There has been no censorship or jailing of journalists or bloggers, as is sadly commonplace in many other countries.
But will evidence of this program be used to level a charge of hypocrisy by countries around the world that are the target of the State Department's Internet freedom initiatives?
That seems a safe bet.
Director of National Intelligence James Clapper told The National Journal that "the NSA does not voyeuristically pore through US citizens e-mails."
The program is generally popular among US senators. Georgia Republican Sen. Saxby Chambliss dismissed the NSA program as "nothing new" and said that "Every member of the United States Senate has been advised of this. To my knowledge there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years."
How citizens could complain about something they are unaware of is unclear. And assurances that "only bad guys" have been targeted would probably similar be given by governments like China and Iran when asked about their own surveillance activities.
In an editorial Thursday, The Guardian writes that Obama's decision to back the Bush White House's bill expanding the NSA's ability to monitor US telecommunications may have made political sense as he drove for the presidency in late 2008, but is threatening basic freedoms in the US.
It was a big call. Even so, it seems unlikely that either supporters or critics, or even Mr Obama himself, ever believed that five years later a re-elected President Obama would oversee an administration that stands accused of routinely snooping into the phone records of millions of Americans.
Few Americans believe that they live in a police state; indeed many would be outraged at the suggestion. Yet the everyday fact that the police have the right to monitor the communications of all its citizens – in secret – is a classic hallmark of a state that fears freedom as well as championing it. Ironically, the Guardian's revelations were published 69 years to the day since US and British soldiers launched the D-day invasion of Europe. The young Americans who fought their way up the Normandy beaches rightly believed they were helping free the world from a tyranny. They did not think that they were making it safe for their own rulers to take such sweeping powers as these over their descendants.
America is clearly not living in a police state, though this kind of routine surveillance was unheard of between the mid-1970s and Sept. 11, 2001. How much safer are we thanks to it? Hard to measure. Is that additional safety worth the additional loss of privacy? Also a difficult discussion.
And if the answer to that second question is yes, then there comes a third: "How much additional safety could be accrued by further lowering privacy protections, and when would we say 'enough is enough'?"
These are hard questions. It's an open question whether America's political class will grapple with them in a meaningful way. What's certain is that the world will be watching.