Harry Binswanger and the Surveillance State

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Harry Binswanger and the Surveillance State

– he has nothing to hide –

“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”

– Ayn Rand [1]

“Saying that you ‘don’t care about the right to privacy because you have nothing to hide’ is no different than saying you ‘don’t care about freedom of speech because you have nothing to say.’ It’s a fundamentally un-American principle. ... What may not have value to you today may have value to an entire population, an entire people or an entire way of life tomorrow. And if you don’t stand up for it, then who will?”

– Edward Snowden [2]

In early June 2013 Edward Snowden fled his high-paying job at the National Security Administration and told the world, with documentation, that the federal government is operating an online spying program called PRISM – Protective Research Information System Management – the goal of which is to intercept, record and archive every phone conversation, email message, credit card use, Internet search – any electronic communication – anyone ever makes. [3] Mr. Snowden thus became the latest whistleblower on the NSA since the Bush administration initiated, tried to cover up, then made legal retroactively, warrantless wiretaps – later allowed to stand by the Supreme Court.

What concerns us here is the reaction of Harry Binswanger to such a massive invasion of your correspondence by the state. We begin with a few remarks on the idea of privacy vis-à-vis the government.

You’ve read the Fourth Amendment before but considering how it is being violated wholesale today it’s worth reading again. Keep in mind that “searches and seizures” are searches and seizures by the government:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It refers to persons, houses, papers, effects – and implicitly the category of which those are examples: your property. Though it doesn’t refer to information explicitly, by implication it protects information hidden within your property. Though the Founders didn’t foresee computers and electronic communication, electronic data is the modern day analog of ink on paper and as much your property. Tapping your phone or other data line is a physical intrusion into a data conduit, however serpentine and ephemeral, that you had contracted for as your own. The tapping violates the private property of everyone along the contract chain in both directions from the point of intrusion. [4]

The Fourth Amendment doesn’t protect you from private snoops who might acquire information about you without trespass or coercion, however a “private spy” acting as an agent of the government is a government spy. The Fourth Amendment, along with the Fifth Amendment, by implication forbids the government from forcing people to spy on you and from forcing you to pay for people to spy on you.

All of which is to say that in a free society the government, without an explicit and valid warrant, doesn’t go through your mail, eavesdrop on your conversations, peep through your windows, break into your home or contracted data line and go through your stuff, or hire others to do it.

“Except when some government functionary decrees otherwise for your own good” is not in the Fourth Amendment.

The government’s recognition of the Fourth Amendment began to disintegrate with the founding of the IRS, whose mission was inconsistent with respect for financial privacy. The 9-11 attack furnished the government its longed-for pretext to spy not only on economic activity but on everything. The NSA (set up by President Truman in 1952 not long after World War II), instead of looking outward to foreign lands, began to look inward at Americans. With modern technology the spying could be done on an unprecedented scale. The government and its shills don’t call it spying though, it is “data mining” – just as torture is “enhanced interrogation.”

Soon patriotic whistleblowers came forward, some at great personal risk and financial loss, to tell the public what the NSA was up to, men such as Kirk Wiebe and William Binney (2002), Thomas Tamm in the U.S. Department of Justice (2004), Mark Klein at AT&T (2004), Russell Tice (2005), Thomas Drake (2005). [5]

William Binney, a former mathematician at the NSA, in a talk on July 13, 2012:

“... the KGB, the Stasi, and the Gestapo could never have dreamt of having anything as great and comprehensive as this capacity to monitor the population. They tried to get information about the population so they could control it. That is fundamentally what dictatorships and totalitarian systems do around the world. And that unfortunately is the way our government is going.”

The Stasi was the secret police of the German Democratic Republic, that is, East Germany when half of Germany was a Soviet satellite. STAats·SIcherheit is German for state security. Its mission was “to know everything.”

Edward Snowden, the latest whistleblower, claims that the NSA’s surveillance is even more extensive than that exposed by earlier whistleblowers. He claims the NSA, besides recording the customer logs of the top three phone companies, is hacking into Internet backbone routers to eavesdrop on traffic, and tapping directly into the servers of leading U.S. Internet companies, collecting email, Internet searches and credit-card transactions. [6] Quoting from a June 10, 2013 interview:

“The NSA has built an infrastructure that allows it to intercept almost everything. With this capability the vast majority of human communications are automatically ingested without targeting. If I wanted to see your emails or your wife’s phone, all I have to do is use intercepts. I can get your emails, passwords, phone records, credit cards....
“... the NSA routinely lies in response to congressional inquiries about the scope of surveillance in America.”

From an email to Barton Gellman of the Washington Post:

“... at this point in history, the greatest danger to our freedom and way of life comes from the reasonable fear of omniscient State powers kept in check by nothing more than policy documents.”

Those who object to this surveillance get treated like unruly children. Here is Harry Reid, U.S. Senate Majority Leader, on June 6, 2013 right after Snowden’s revelations:

“Everyone should just calm down and understand this isn’t anything that is brand new.”

True, Snowden’s claims aren’t “brand new.” Only the scope and degree of the surveillance are new, but being old news doesn’t make it any the less bad news.

Snowden himself got the full monty from leftists and neoconservatives: he is a “traitor,” “a grandiose narcissist who deserves to be in prison,” etc. John Yoo, the immigrant from South Korea famous for Bush administration memos justifying U.S. institutionalized torture, wrote in Nation Review Online: “Edward Snowden should go to jail, as quickly and for as long as possible.” James Woolsey, famous for promoting Bush’s invasion of Iraq, said (December 17, 2013) that Snowden should be prosecuted for treason and after being convicted “he should be hanged by his neck until he is dead.”

Peter Schwartz of ARI began his essay “Snowden and the NSA” with “What the National Security Agency (NSA) has done in spying on Americans is reprehensible – and what Edward Snowden has done is worse.” That is, exposing NSA’s reprehensibility! Mr. Schwartz goes on to call Snowden a criminal.

On June 21, Snowden’s 30th birthday, the Department of Justice charged Snowden on three counts, two under the Espionage Act, so that he now faces 30 years in prison, with more charges pending.

You couldn’t make this stuff up if you were writing a— hmm....

When Ayn Rand was working on her novel Atlas Shrugged she kept a file of news stories that portended a fascist America like the one she was fictionalizing and warning against. She called it her “horror file.” Years later when she published The Objectivist Newsletter and The Objectivist magazine, occasionally she included a section called “From the ‘Horror File’ ” consisting of the latest such news stories. The revelations about the NSA by Thomas Drake, Edward Snowden et al belong in any Objectivist Horror File of today.

Four days after Snowden went public the Wall Street Journal printed an editorial entitled “ ‘Big Brother’ and Big Data” (no byline). It too is Horror File material. Among its points:

• “... the more such information the government collects the less of an intrusion it is.” The author argues this paradox by confusing degree of intrusion with ease of searchability, but even then he is mistaken: supercomputers and ganged microcomputers can search through enormous databases in microseconds.

• “The search is for trends, patterns, associations, networks. They are not ... invasions of individual privacy at all.” But the invasion is not the search, it is gathering the data in the first place. After that the data can, and doubtless eventually will, be searched in any number of ways.

• “The alternative ... is [lower-tech methods of intrusion which would be even worse].” (The editorial is subtitled with the take-home line: “The alternative to automated sweeps is more privacy invasion.”) No Mr. WSJ Editorialist, the alternative is the Fourth Amendment and government doing its real job, as we elaborate at the end of this essay.

• “... Edward Snowden, ... who proudly claims he exposed these surveillance programs, has provided no evidence of their abuse.” Again, the author pretends not to understand that the program itself is the abuse. The evidence is merely to point at it. For now the politically connected might not be using the NSA’s surveillance to blackmail opponents, track political dissidents, etc. – who knows? – but that is immaterial, it still violates private property.

• “What our self-styled civil libertarians [note the mockery] should really fear is another successful terror attack ... . Then the political responses could include [a long list of draconian measures]. Practices like data-mining save lives [earlier the author had repeated the government handout to that effect], and in doing so they protect against far greater intrusions on individual freedom.” In other words, the government violating your rights protects you from the government violating your rights even more. If the government doesn’t violate your rights this-a-way, it will violate your rights that-a-way.

Harry Binswanger, besides being on the governing board of the Ayn Rand Institute and a founding member, ran the “Harry Binswanger List,” or HBL. It was an email publication “for Objectivists, moderated by Dr. Binswanger, for discussing philosophic and cultural issues” (quoting the HBL website at the time). A subscription cost $145 per year. In 2006 there were over 800 subscribers. [7]

On the day the Wall Street Journal editorial appeared – June 10, 2013 – Mr. Binswanger posted a message to his list titled

“Big Brother doesn’t scare me”
He thought this so valuable he made it his “Excerpt of the Day,” placing it on his HBL website for the general public to read. We quote it in full in a moment. As you read notice the following offenses against clear, forthright English:

• “the government having collected” – as if the collection were in the past. Mr. Binswanger softens the fact that the collection is ongoing and perpetual.

• “ ‘meta data’ about phone calls and such” – hides the extent of the government’s invasion: record and store everything you do online and over the phone. The government uses the word “metadata” to fool people into thinking it’s not real data. Phone call “metadata” is the phone numbers, locations and times, which is real data, and as Snowden made clear in his exposé, the goal – substantially achieved – is all the data, including the audio.

• “reportedly” hides the source of the reports (on the benefits of the NSA), namely government officials and politicians. One must be skeptical when the fox reports on the hen house.

• “it’s better to have all the sources of information we can” insinuates the idea that we are the ones collecting the information, when in fact it is not we but they. It’s as if Mr. Binswanger identifies with the police state apparatus.

More comments afterwards. Just when you thought it couldn’t get any worse: [8]

“HBL Excerpt of the Day”

I agree with the The Wall Street Journal: there is nothing inherently wrong with the government having collected “meta data” about phone calls and such. The collection of this information has, reportedly, enabled the government to quash planned terrorist attacks, e.g., an attack on the NYC subways that was in the works in 2009. (Some are objecting that the PRISM data-collection program was not a necessary input in the foiling of that attack; but even if it wasn’t, it’s better to have all the sources of information we can.)

In general, I’m not scared by government invasions of privacy. I have no secrets. Those who raise the specter of Big Brother are not on a wrong basic premise, but they are being unrealistic: when and if we fall into the grip of totalitarianism, there will be nothing to stop the dictatorship from spying on us by any means it wishes. Such a regime does not require that the tools have been set up in advance.

This is not to say that the present government should be given carte blanche. And some reining in may well be called for. But alarmism here is unwarranted and counter-productive.

— Harry Binswanger

Note the straw man at the end: “This is not to say that the present government should be given carte blanche.” It’s true Mr. Binswanger never said the government should be given carte blanche, but by saying PRISM is nothing to be concerned about, indeed admirable, Mr. Binswanger promotes a governmental program of unparalleled intrusiveness. It’s not carte blanche though, thanks a lot.

In what follows we call the PRISM program “Panopticon,” a more descriptive name. It was coined by the Englishman Jeremy Bentham in 1791 for a building he had designed that allowed watchmen to observe those inside without their being aware of it. [9]

Mr. Binswanger’s next sentence is mealy-mouthed backside-covering: “... some reining in may well be called for.” That is the extent of his criticism. “May well” indeed. He concludes by smearing critics of Panopticon as unhelpful alarmists.

Mr. Binswanger’s egocentric style annoys. He has no secrets? He speaks for himself, you on the other hand might have secrets and private places. His not having any is no reason to allow the government to force its way into yours.

The first paragraph of Mr. Binswanger’s “Excerpt of the Day” repeats the government handout: spying on you prevents terrorist attacks. [10] His second paragraph assumes (following the Wall Street Journal editorial) that the U.S. government’s proper or unavoidable reaction to a successful terrorist attack is to descend to dictatorship. How else to explain his argument:

1. If the U.S. becomes a dictatorship the dictator can set up a spy agency and spy on you any way he wants.

2. Therefore the government spying on you now is nothing to worry about.

In fact dictatorship is not a proper or unavoidable response to anything, and Panopticon is already a long way down the road to dictatorship.

Mr. Binswanger’s academic specialty is logic. No, really. He recently self-published a book about the theory of knowledge called How We Know. Judging from his Excerpt of the Day above, after reading the book you will be able to prove that drinking hemlock juice is good for the digestion.

-oOo-

Mr. Binswanger believes “there is nothing inherently wrong with the government” spying on you. Note the qualification “inherently.” It sounds like he thinks Panopticon is wrong and right at the same time. It’s wrong, but not inherently wrong?

Whatever was on his fuzzy mind, Panopticon is just plain wrong. It violates the spirit of the Fourth and Fifth Amendments – the fourth regarding searches of property and the fifth regarding taking of property – as described at the beginning of this essay. Panopticon erodes the First Amendment too – regarding freedom of speech and assembly – by focusing unwarranted police suspicion on innocent speech.

The goal of censorship is to limit private thought. Panopticon is censorship’s natural ally.

On second thought don’t worry about it. Mr. Binswanger’s got nothing to hide. [11]

-oOo-

The ARI Watch Links page features several videos of the whistleblowers mentioned above. Thomas Drake, former senior executive at the NSA and former Assistant Professor at the Industrial College of the Armed Forces, is especially articulate. With his knowledge of history and political philosophy he makes sense of what is going on today.

Coming eventually on ARI Watch: “Too Little Too Late”: a review of Yaron Brook’s tardy – twelve years tardy – comments on the Patriot Act.

1 From The Fountainhead, the part reprinted in the chapter “The Soul of an Individualist” of For the New Intellectual.

2 Transcribed from an interview dated 5 September 2015.

Snowden elaborated a bit in an interview on 15 September 2016. He attributes the “common argument ... if you have nothing to hide, you have nothing to fear” to Joseph Goebbels, who was Reich Minister of Propaganda in Nazi Germany from 1933 to 1945. He then discusses the argument itself (we leave off our external quote marks):

... if we actually think about it, it doesn’t make sense; because privacy isn’t about something to hide, privacy is about something to protect. That’s who you are. That’s what you believe in. Privacy is the right to a self. Privacy is what gives you the ability to share with the world who you are on your own terms. ...

If we don’t have privacy, what we’re losing is the ability to make mistakes, we’re losing the ability to be ourselves. ... Freedom of speech doesn’t have a lot of meaning if you can’t have a quiet space, a space within yourself, your mind, your community, your friends, your family, to decide what it is you actually want to say.

Freedom of religion doesn’t mean that much if you can’t figure out what you actually believe without being influenced by the criticisms of outside direction and peer pressure. And it goes on and on.

Privacy is baked into our language, our core concepts of government and self in every way. It’s why we call it “private property.” Without privacy you don’t have anything for yourself.

So when people say that to me [“if you have nothing to hide, you have nothing to fear”] I say back, arguing that you don’t care about privacy because you have nothing to hide is like arguing that you don’t care about free speech because you have nothing to say.

In the next to last paragraph it might have been better to say that privacy is based on private property instead of the other way around. If you lose the right to private property then you have lost the right to privacy (see footnote 3). In any case the two are closely related, something Binswanger does not understand. Snowden is beyond him.

3 To be exact, Snowden furnished this information to several newspapers: The Guardian, the New York Times, the Washington Post, and The Intercept.

4 What “right to privacy” you have depends on your property rights. If someone (not a government spy) can discover – without coercion or trespass – information about you, you have no right to prevent them. Such a right would entail violating the snooper’s own freedom. One way to keep information about yourself private is not to give it out. Another way is only to give it out under a contractual agreement stipulating that the information shall not be divulged to a third party – if you can do it. The trouble is that when governments control those you would deal with, as do today in many transactions, your choices become very limited. Regulated monopolies have little incentive to keep a customer happy by respecting his wish not to divulge information. Some businesses routinely require you to sign a document waiving any right to privacy when it comes to the government. Governments violate some businesses’ property rights by requiring them to divulge information about their customers. For example, when you buy from a manufacturer rather than a retailer.

The Supreme Court justifies violating the Fourth Amendment by interpreting it away using “Third Party Doctrine,” which says that if you knowingly reveal information to a third party, for example your phone company, you relinquish Fourth Amendment protection in that information.

5 See:
“Five Alarming Things We Should Have Already Known About the NSA, Surveillance, and Privacy Before Ed Snowden”
by Brian Doherty, Reason June 18, 2013
www.reason.com/archives/2013/06/18/5-alarming-things-we-should-have-already

“Three NSA veterans speak out on whistle-blower”
by Peter Eisler and Susan Page, Federal Times June 17, 2013
Interview with Thomas Drake, Kirk Wiebe and William Binney
www.federaltimes.com/article/20130617/DEPARTMENTS01/306170009/3-We-told-you-so

“Snowden saw what I saw: surveillance criminally subverting the constitution”
www.guardian.co.uk/commentisfree/2013/jun/12/snowden-surveillance-subverting-constitution
Thomas Drake, The Guardian 12 June 2013.

6 “Edward Snowden: NSA whistleblower answers reader questions”
The Guardian June 17, 2013
www.guardian.co.uk/world/2013/jun/17/edward-snowden-nsa-files-whistleblower

Interview video published June 9, 2013
www.youtube.com/watch?v=5yB3n9fu-rM

“NSA Whistleblower Revealed: Q&A with Edward Snowden”
June 10, 2013
www.commondreams.org/headline/2013/06/10

Chris Anderson interviews Edward Snowden
March 2014
www.ted.com/talks/edward_snowden_here_s_how_we_take_back_the_internet
Includes Tim Berners-Lee shaking his hand, virtually speaking.

7 The HBL subscriber statistic is from Betsy Speicher (CyberNet, September 2006). The list has been superceded by the “Harry Binswanger Letter” consisting of a blog and forum. Membership is $150 per year.

In the early 1980s Mr. Binswanger compiled an anthology of excerpts from Ayn Rand’s non-fiction work and what you might call her fictional essays, arranged alphabetically by subject, and got it published as The Ayn Rand Lexicon. Around 2007 he placed Lexicon online and it is now integrated with the ARI Campus website. The Lexicon website mentions HBL without linking to that website. On the Lexicon website he refers to himself as “a longtime associate of Ayn Rand,” on the HBL website as an “associate of the late Ayn Rand.” Thus people surfing the Internet for Ayn Rand eventually find HBL and, thinking they’ll be getting the real deal on Objectivism, sign up. By the time one member becomes disillusioned another is ready to join – that’s how it probably goes. Anyway, because of the Lexicon funnel the HBL subscriber list may have grown since 2006.

... A six figure income from a list?

Apparently, Froggy. Maybe you should start a list. I bet some people would pay good money to correspond with a frog.

8 We have silently corrected two typos: “terroist” »» terrorist, and “the the sources” »» the sources.

9 In his preface to Panopticon; or The Inspection-House (1787) – subtitled “containing the idea of a new principle of construction applicable to any sort of establishment, in which persons of any description are to be kept under inspection; ...” – Jeremy Bentham describes Panopticon as “a new mode of obtaining power of mind over mind, in a quantity hitherto without example.” He didn’t live long enough.

10 The conspiracy to bomb the NYC subways was an authentic plot, unusual because practically all terrorist plots foiled by the FBI with great fanfare are instigated by the FBI itself. (See our Links page under Homegrown Terrorism.) However, not only was PRISM unnecessary in uncovering the NYC subway plot, it’s unlikely PRISM was involved at all. See:

“Public Documents Contradict Claim Email Spying Foiled Terror Plot”
by Ben Smith, Buzzfeed June 7, 2013
www.buzzfeed.com/bensmith/public-documents-contradict-claim-email-spying-foiled-terror

“Does the 2009 NY Subway Bombing Plot Justify Prism?”
by Mark Horne, Last Resistance June 10, 2013
www.lastresistance.com/2278/does-the-2009-ny-subway-bombing-plot-justify-prism

The mendacity of the NSA’s director, Keith Alexander, was clear in his testimony before the House Intelligence Committee on June 18, 2013. When a congressman, referring to the spying programs on communication over telephone lines and over the Internet, asked him if the NSA possessed the “ability to listen to Americans’ phone calls or read their emails under these two programs?” he replied: “No, we do not have that authority.” The equally mendacious Intelligence Committee went along with his answer. Commentator Andrew Napolitano pointed out:

“Of course, he doesn’t have the legal authority to [listen to] the phone calls. That’s not what the question asked. The question asked, ‘Does he have the practical ability to do so?’ and he couldn’t answer that because the answer is ‘Yes.’ And the president and Gen. Alexander are both saying, ‘Trust us.’

“The same administration said ‘Trust us’ on Benghazi ... [yet they] changed the story four times. The same administration said ‘Trust us’ on the James Risen, Fox News search warrant affair. The same administration said ‘Trust us’ on the IRS targeting conservatives.

“Why should we trust them? Why should we trust these people?”

11 Mr. Binswanger’s June 17 “Excerpt of the Day,” entitled “A new perspective on NSA surveillance,” continued the same line. He quotes one Scott McDonald, who seems to uncritically accept whatever the NSA says (the first sentence ends in a colon yet nothing follows, perhaps some text was omitted in the excerpt):

“As a military professional, I have been very careful to base the following solely on information that is publicly available and unclassified:

“I think we and the media are losing sight of what exactly it is that the NSA does. It is charged with collecting foreign signals intelligence. While I agree with the anonymous military professional referenced by Dr. Binswanger that we must take the offensive against our enemies, we need good intelligence in order to do so effectively. In fact, recent public testimony by the head of the NSA has indicated the intelligence collected through NSA programs have led directly to successful offensive operations against foreign adversaries.”

This military professional, beholden to the government for his paycheck and future lifetime pension, pretends not to understand that the subject is warrantless, unrestricted, domestic surveillance of America, not “foreign signals intelligence.” Like Mr. Binswanger, he thinks you are better off trusting government people to keep you safe rather than that you risk being free, even as the same people cause the problems from which they claim to protect you. What a racket.

On June 29 Mr. Binswanger posted to the HBL list something by himself titled “Snowden as villain,” but didn’t make it public.