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Who Watches The Watchmen?

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. - The Fourth Amendment to the United States Constitution.
In this post-Snowden era the fourth amendment has, arguably, become the most quoted
and relevant part of the Constitutioni. Ever since 9/11 the National Security Agencys (NSA)
surveillance capabilities have increased significantly, to the extent that the NSA can now watch
and listen to literally hundreds of millions of people across America and the world,
simultaneously. This mass government surveillance, wiretapping and data mining has reached
almost the point where it almost mimics a dystopian surveillance state.
Historically, no government has been able to employ true mass surveillance, but they have used
spies, who were used to not only be a step ahead of their enemies, but also maintain power over
their subjects. While these forms of spying has not always been wiretapping the sentiment has
always been the same. Perhaps the initial reasoning has been for the good of the people,
however, power tends to corrupt and absolute power corrupts absolutely (John Emerich
Edward Dalberg-Acton). It is foolish to assume that people of power with access to information
on the peoples they govern wont, eventually, use that information for their personal gain.

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When talking about surveillance and wiretapping, the main argument against it is the
abuse or loss of privacy. In the Supreme Court Case, Olmstead v. United States, then Judge
Rudskin states Whenever a telephone line is tapped, the privacy of the persons at both ends of
the line is invaded and all conversations between them upon any subject, and, although proper,
confidential and privileged, may be overheard. Rudskin also delivers that the government
should treat telephones the same way they treat post, as they have little to no difference between
them. In addition, Rudskin implies that the governments use of writs of assistance and general
warrants can be used for the means of tyranny and oppression when compared with
wiretapping.
While that case ultimately ruled in favor of illegal wiretapping1 the precedent Judge
Rudskins statement sets is relevant today, where government surveillance and wiretapping
capabilities far exceed that of 1928. Today, governments are able to check, at will, a persons
conversation on or near a phone, their emails, internet activity, location, purchase history, bank
data and endless amounts of data & metadata they may create over their lifespan (Gellman and
Soltani). The picture above, shows a heat map of a NSA program known as Boundless Informant
and its data collection by country. Iran being the country where the most data was gathered at
1 This decision was later overturned by Katz v. United States in 1967 which also extended Fourth
Amendment protection to all areas where a person has a "reasonable expectation of privacy".

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approximately 14 billion reports over a 30-day period 2. On a worldwide scale 97 billion internet
data records (DNI) and 124 billion telephony data records (DNR) were collected. (Greenwald
and MacAskill)
This metadata in aggregate can be used by governments to create a dossier on people that
can be wielded against them to allowing governments to blackmail them, and possibly allow
them to link people who are in frequent contact with one another and prevent them from
protesting or opposing the government even if it is in a constitutional way (Poitras). Should
governments not use that information for gain, it is not inconceivable that a government can, for
example, mistakenly determine that, based on the metadata, a persons actions are criminal or
any number of scenarios that result in a person being inconvenienced or even being jailed.
The byproduct of such surveillance on the privacy of people can have many implications
depending on the type of government conducting the surveillance. One of the obvious outcomes
would be changes in behavior, a study conducted on the subject indicates that knowledge of US
government surveillance of Google3 could indeed affect [international Google users] behavior
(Marthews and Tucker). While study only analysiss search trends internationally, it cannot be
argued that mass surveillance would also change behavior in nearly every aspect of a persons
life both domestically and internationally. This essentially makes the people control their speech,
movements as well as thoughts, and perhaps even leads them to live in a constant state of fear.

2 Pakistan, Jordan and Egypt came up 2nd, 3rd and 4th respectively. Outside the Middle East, only China,
Germany, India, Kenya, Colombia, the United Kingdom, and the United States are colored orange or
yellow
3 The paper does not study the revelations affected search on Googles major competitors, such as Bing
and Yahoo! Search

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Dubbed the most common retort against privacy advocates, the nothing to hide argument, an
argument that if an individual does not conduct any illegal activity he/she has nothing to worry
about, is perhaps the most deadly weapon against privacy (D. J. Solove). However, [The
nothing to hide argument] represents a singular and narrow way of conceiving of privacy, and it
wins by excluding consideration of the other problems often raised in government surveillance
and data mining programs (D. J. Solove). Bruce Schneier suggests that conducting surveillance
on someone long enough will eventually lead to the surveillance finding something which can be
used against a person. In his paper Solove suggests that including the use of the data collection
beyond its surveillance and disclosure usage mutes the nothing to hide argument.
Another common argument is that surveillance can help keep people more secure and
even act as a deterrent to criminals who wish to commit illegal activities. However, a report
analyzing 225 terrorism cases4 found that Surveillance of American phone metadata has had no
discernible impact on preventing acts of terrorism and only the most marginal of impacts on
preventing terrorist related activity, such as fundraising for a terrorist group (Bergen, Sterman
and Schneider). Suggesting that although advertised as being important, mass surveillance is
ineffective in security.
Political rights are perhaps the next most talked about argument against mass surveillance as it
can be a way to limit political rights as well as hinder democratic participation. Authoritarian
governments are notorious for keeping their population subdued by means that include, but are
not limited to mass surveillance. The Soviet Union famously and, perhaps for a time,

4 Cases were of individuals recruited by al-Qaedas or a like-minded group of inspired by al-Qaedas

ideology

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successfully employed mass surveillance throughout the Eastern Bloc, ensuing fear within the
people and thus kept them controlled.
The idea that privacy is fundamental to a functioning democracy, it is the reasoning
behind the fourth amendment and as Alan Westin states Privacy is an irreducibly critical
element in the operations of individuals, groups and government in a democratic system with a
liberal culture. For citizens of any democracy to be able to hold their governments into account
they must attain the basic right to privacy as it enables them to participate in decision making as
well as operate in society (Goold). Furthermore, without privacy, it is much harder for dissent to
flourish or for democracy to remain healthy and robust, and as such there must be a limit placed
on the ability of the state to know things about us or to subject us to surveillance. (Goold)
However, that are controversial debates on whether surveillance destroys political rights.
These arguments mostly present that the law itself provides checks and balances to prevent
government from abusing power, that it is embedded in a good functioning democracy. However,
as Goold writes it would be a mistake to put too much faith in the capacity of the law to hold
back the state, in part because of the general problems associated with regulating new
technologies.
Wiretapping can also be used to pressure and suppress political parties and activists. A
scandalous case of this would be the Watergate scandal, where Ex-President Nixon used wiretaps
to spy on the Democratic Partys headquarters. As history has proven time and time again, laws
and political parties evolve to, if unchecked, help those in power stay in power. Political spin is
commonplace, masking changes and decisions to make them appear better than they actually are
(Jackson and Jamieson). It is up to the people to find the facts and act accordingly.

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On an international front, mass surveillance and wiretapping can have many political
ramifications. It can lower foreign relations, and trade, and even cause sanctions to be taken.
Recent document leaks on NSA spying in Germany raised tensions between the two countries
and will have long-term ramifications (Zawilska-Florczuk and Frymark). World Powers than
employ surveillance and wiretapping on other nations can also have the problem of setting a bad
precedent that allows other countries to use when employing their own surveillance programs.
Many would argue that in order to have a competent security system a security agency
should watch both allies and opponents. However, as stated earlier the potential economic and
social consequences of such activities out way any gains they may wield. In addition, such
activities may not only drive away foreign businesses, but even drive away local born businesses
who fear anticompetitive and corrupt practices from the government.
Finally, while surveillance and wiretapping can create a short-term security benefit, in the
long term, it creates a makes the networks less secure, Susan Landau states that building
wiretapping capability into the infrastructure into applications creates all sorts of risks. A
notable example is an incident referred to as The Greek Watergate, where hundreds of Senior
Greek government officials were wiretapped because of wiretapping technology that existed in
the Greek phone infrastructure (Landau). While there is no argument in favor of adding
surveillance technology into the infrastructure, this paper should act as a deterrent for any
counter argument for it as well as any argument for mass surveillance in general.
Security is an essential part of being in a functioning society. While the advantages of
mass surveillance are clear cut, the disadvantages are almost always abstract, at least until

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research is conducted. Even though the technology may be able to save lives 5 and provide
additional security, it is still too much to entrust to government that society should not give.
Maybe in the future government transparency will enable society to function normally with mass
government surveillance, wiretapping and data collection until then, however, the public
continually must ask Who watches the Watchmen?

5 As shown earlier, data has yet to prove this

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Works Cited
Bergen, Peter, et al. "Do NSA's Bulk Surveillance Programs Stop Terrorists?" 2014. 2015.
Citizenfour. Dir. Laura Poitras. Perf. Edward Snowden, et al. Prods. Laura Poitras, Mathilde
Donnefoy and Dirk Wiluzky. Radius-TWC, 2014.
DeLong, Matt and Ashkan Soltani. FASCIA: The NSA's huge trove of location records. The
Washington Post.
Gellman, Barton and Ashkan Soltani. "NSA tracking cellphone locations worldwide, Snowden
documents show." The Washington Post 04 December 2013.
Goold, Benjamin. "How Much Surveillance is Too Much? Some Thoughts on Surveillance,
Democracy, and the political Value of Privacy." 2010.
Greenwald, Glenn and Ewen MacAskill. "Boundless Informant: the NSA's secret tool to track
global surveillance data." The Guardian (2013).
Jackson, Brooks and Kathleen hall Jamieson. un.Spun finding facts in a world of
[disinformation]. Random house, 2007. Paperback.
John Emerich Edward Dalberg-Acton, 1st Baron Acton. Letter to Archbishop Mandell Creighton.
Cannes, 1887.
Katz v. United States. The Supreme Court of the United States. 1967.
Madison, James. "Fourth Amendment to the United States Constitution." Madison, James.
United States Bill of Rights. 1791.
Marthews, Alex and Catherine Tucker. "Government Surveillance and Internet Search Behavior."
2015.

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Olmstead v. United States. Supreme Court of the United States. 4 June 1928.
RadioLab. "Eye in the Sky." RadioLab. 2015.
Schneier, Bruce. "The Eternal Value of Privacy." WIRED (2006). Online.
Singel, Ryan. "NSA's Lucky Break: How the U.S. Became Switchboard to the World." WIRED
2007.
Solove, Daniel J. "Ive Got Nothing to Hide and Other Misunderstandings of Privacy." George
Washington University Law School, 2008. 2015.
Solove, Daniel J. "Why Privacy Matters Even if You Have 'Nothing to Hide'." Solove, Daniel J.
Nothing to Hide: The False Tradeoff Between Privacy and Security. Yale University
Press, 2011.
Surveillance or Security? The Risks Posed by New Wiretapping Technologies. Perf. Susan
Landau. Harvard University. 2011. Youtube. 2015.
United Nations. Universal Declaration of Human Rights. Palais de Chaillot: United Nations,
1949.
Westin, Alan F. Privacy and Freedom. The Bodley Head Ltd, 1970. Paperback.
Zawilska-Florczuk, Marta and Kamil Frymark. "The NSA: the impact of the wiretapping scandal
on German-American relations." 2014.

i While less quoted Article 12 of the Universal Declaration of Human Rights conveys the same message on a
more international scale. No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks. (United Nations)