Original Article written by Moxie Marlinspike for Thought Crime - Thursday 13, June 2013
The programs of the past can be characterized as “proximate” surveillance, in which the government attempted to use technology to directly monitor communication themselves. The programs of this decade mark the transition to “oblique” surveillance, in which the government more often just goes to the places where information has been accumulating on its own, such as email providers, search engines, social networks, and telecoms.
Both then and now, privacy advocates have typically come into conflict with a persistent tension, in which many individuals don’t understand why they should be concerned about surveillance if they have nothing to hide. It’s even less clear in the world of “oblique” surveillance, given that apologists will always frame our use of information-gathering services like a mobile phone plan or GMail as a
choice.
We’re All One Big Criminal Conspiracy
As James Duane, a professor at Regent Law School and former defense attorney, notes in his
excellent lecture on why it is never a good idea to talk to the police:
Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. These laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies under congressional authorization. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are ”nearly 10,000.”
If the federal government can’t even count how many laws there are, what chance does an individual have of being certain that they are not acting in violation of one of them?
As Supreme Court Justice Breyer
elaborates:
The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.
For instance, did you know that it is a
federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.
If the federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet.
We Should Have Something To Hide
Over the past year, there have been a number of headline-grabbing legal changes in the US, such as the legalization of marijuana in CO and WA, as well as the legalization of same-sex marriage in a growing number of US states.
As a majority of people in these states apparently favor these changes, advocates for the US democratic process cite these legal victories as examples of how the system can provide real freedoms to those who engage with it through lawful means. And it’s true, the bills did pass.
What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.
The state of Minnesota, for instance, legalized same-sex marriage this year, but
sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in WA and CO, it was obviously not legal for personal use.
Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified,