Why would a successful e-mail service provider shut its doors and destroy its servers with no warning whatsoever to its users? Welcome to the new surveillance state.
Last Thursday, within hours of one another, Lavabit and Silent Circle shuttered operations. Both companies provided specialized e-mail service, primarily to people who wished to keep their correspondence private. Thus, as Groklaw today becomes the latest casualty of the surveillance state, let us pause to ask why apparently sane people are shutting down their businesses rather than risk having to comply with NSA orders.
Groklaw is not even in the e-mail providing business, but recognizes that it cannot conduct its business without secure e-mail. That means e-mail service will not be the only casualty of our government’s increasing brazenness in collecting and storing data on its citizens. Any business that risks exposing its customers to secret snooping by the government may now be faced with the same moral dilemma that prompted these three companies to shut down.
These are not wild-eyed anarchists defying the law on general principle. Lavabit’s founder, Ladar Levinson, has complied with over two dozen orders in the past to turn over information about specific users. Like most reasonable people, Levinson recognizes that criminal investigations have to include snooping–when it is focused and justified legally. It is becoming apparent that the government has gone well beyond that boundary–far enough to spawn mild forms of civil disobedience.
The government is not amused, judging from its threat to charge Levinson for shutting down his business. Lavabit cannot legally speak of the details of the government’s request, but it was clear that the court order just issued went far beyond anything in the past. He also hinted that it was designed to collect data about all users. Was the request for full “backdoor” access to Lavabit? It may well have been.
The right for two people to communicate privately is an extension of the more fundamental right of each individual to do as he/she pleases as long as it does not materially harm others or circumscribe their rights. Heretofore, the right to keep communications private has not needed much of a defense, but for practical rather than philosophical reasons. Until technology enabled cheap and easy snooping, it was simply too difficult to monitor private conversations.
Now we find that the very technology that enables us to check on the kids by cellphone also opens the door for others to hear us talk with our customers, spouses, lovers, and drinking buddies. Ditto for e-mail. Even snail mail, once considered sacredly private, has been secretly scanned on the exterior in its entirety (160 billion pieces last year) by the Mail Isolation and Tracking Control program. I assume that includes my letters to Santa and inflatable doll order.*
Our government has long since forfeited any claim to trust from its citizens. If it would lie about Viet Nam, the IRS, Area 51, and about 10,000 other things large to small and grave to silly, it would most certainly lie about its purposes in gathering data on Americans who are not even suspected of a crime.
Aside from what we do know, there is the disturbing matter of what we don’t know. People who are privy to secret information about surveillance programs–some Congressmen, some tech executives, and in the case of Snowden, people who actually work for the companies that do the snooping, have been hinting for some time that all is not well in American privacy rights. The shutdown of three small companies is a stronger hint and it is clear they want us to find out what is going on. Don’t hold your breath waiting for the government to tell us.
In the end, rights are not granted, they are asserted. That includes privacy. I don’t need a law to permit me to converse with you out behind the barn where we can’t be heard. Same for my phone conversations, e-mail, and web browsing. It does not matter whether I am talking about something innocuous or something nefarious, that is my private business until such time as I pose an imminent, clearly identifiable threat to others. Law enforcement can’t just claim that I am a threat either. Officers must obtain a warrant or have some extraordinary set of circumstances (which must later be justified to a judge) that involve public safety. Such limits ensure that the innocent are not harassed for the potential sins of the wicked. Since 9/11, those limits have been consistently ignored.
Unfortunately, our government’s arrogance will also undo its power to neutralize legitimate threats. It will spawn private technologies that thwart every attempt to monitor them, meaning that terrorists and mobsters will have access to same. Not only will law enforcement agencies no longer be able to spy on everyone, they will not be able to spy on anyone, even those people who are about to blow things up. Worse, our government will look even more like our enemy than the protector of our individual rights. Good citizens will figure quite reasonably that if the government does it, it must have a hidden purpose, and probably not a good one. They will start to have a perfectly rational contempt for the law when they realize that the law has become a cynical joke.
As for me, I am glad that some people have the courage to take a personal loss rather than be complicit in illicit spying. They will be remembered as the mice that roared when the lions say no.
*As a preemptive measure, I am admitting my connection with this product. Though my purpose is to free all Inflatable Americans from servitude to their oppressive masters, the government may think it can be used as leverage to force me to shut down this blog. Guess that shows them, huh?