When I was first elected to the Senate, I was fortunate to be appointed to the Intelligence Committee. There I saw up close the dedication and commitment of the men and women of our intelligence agencies. The theme of Law Day this year at NSA—“intelligence under the law”—fits well what the people at the agency do to keep this country safe. The NSA is, in former General Counsel Raj De’s words, “one of the most highly regulated entities in the world.”
So as we in Congress debate matters like the future of Section 215 of the Patriot Act, it is important that we not lose sight of the important safeguards that are in place, and of the careful and honorable way in which intelligence analysts and operators comply with those restrictions.
On the Intelligence and Judiciary Committees, I’ve also seen first-hand congressional oversight of NSA’s work and that of our other intelligence services. This oversight reflects the balance in our democracy, between those who provide our national security, and the people themselves through their elected representatives.
The debate we are having in Congress on the future of government surveillance has focused on the tension between personal privacy and national security. My topic here is to suggest that there is another force at work.
NSA personnel know better than anyone that by far the greatest collector of data on ordinary Americans is not our government, but the private sector entities gathering personal data for marketing and commercial purposes. And the most malevolent threat for an individual American is not our government but the vast armies of hackers—many sponsored by foreign countries—who are constantly trying to steal our personal and financial information. Against these hackers, government is our defense.
And yet, the plainly observable fact to anyone paying attention to the debate we are having in Congress, is that Americans have become more skeptical of government intelligence gathering, while at the same time they willingly accept that corporations learn virtually every detail of their lives. Indeed, some of the most successful internet companies today are really information companies, and the most valuable commodity they possess is data about their customers.
So I ask you this: Why is it that a popularly elected and democratically accountable government—the democracy in which Americans take such pride—is more suspect than immensely large and wealthy private corporations?
It was not always thus.
Our American history reflects a long-standing tension between people and power. In fact, all government everywhere does. But our American form of government solved the problem better than most of moderating this tension between people and power. We have political mechanisms limiting the excesses that in days gone by drove people to bloody revolution against power.
Moderating the tension between people and power, however, doesn’t make the tension go away.
Except in times of violence, power usually takes the form of wealth. Thus, much of our American history reflects this tension as a tug-of-war between representative democracy and aggregated wealth.
For years, most of America’s wealth has aggregated in corporate form. So this long-standing tension appears often as a contest between popular and corporate power.
I talk about this today because this contest has a powerful, if collateral, effect on our ongoing public debate over surveillance and data collection.
A high-speed tour of the history of this contest between popular and corporate power would start at the beginning, with our Constitution. The Constitution provided no protection against corporations; the Constitution has a blind spot for them. Corporations as they exist today were unimaginable in 1787. Corporations of that time were few and rare; created by legislative charter, with limited scope and duration, and specific purpose, like to build a canal. The word “corporation” appears nowhere in the Constitution or Bill of Rights.
The primary work of the Constitution was limiting and balancing the power of the government. But even in their lifetimes, the Founding Fathers began to see the creeping power of corporations. James Madison vehemently opposed Hamilton’s plan for a Bank of the United States, denouncing the motives and means of what he called “incorporated societies.” Thomas Jefferson hoped our young nation would, if I may quote him, “crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.”
At the turn of the next century, the great reformer Theodore Roosevelt saw this same tension. He described it as a contest “to determine who shall rule this free country—the people through their governmental agents, or a few ruthless and domineering men whose wealth makes them peculiarly formidable because they hide behind the breastworks of corporate organization.” He called them, “malefactors of great wealth.” It was Teddy Roosevelt who signed the Tillman Act of 1907, banning corporate donations in our elections.
Thirty years later, struggling to rebuild our economy after a Wall Street crash, President Franklin Roosevelt relished the fight against big business and financial interests who, he said, “had begun to consider the Government of the United States as a mere appendage to their own affairs.”
“Government by organized money,” FDR declared, “is just as dangerous as government by organized mob.”
By the 1970s, big business felt beleaguered by environmental and worker safety regulation. In 1971, a corporate lawyer named William Powell—soon to be Justice Powell—wrote an in-depth memo to the U.S. Chamber of Commerce, beseeching the American business class “to stop suffering in impotent silence, and launch a counter-attack.” The Powell Memo, as it’s known, is the original blueprint for modern American corporate political strategy. “As unwelcome as it may be to the Chamber [of Commerce],” wrote Powell, “it should consider assuming a broader and more vigorous role in the political arena.”
Obviously, it has—and that role has turned business into a political behemoth.
Today, from the explosion of corporate lobbying to the proliferation of business-friendly think tanks, the fruits of the Powell plan abound. The big prize, of course, is the Supreme Court’s fateful Citizens Uniteddecision, allowing corporations to spend—and more darkly, threaten to spend—unlimited amounts in our elections.
Which brings us to back to NSA, to Law Day, and to information.
In the internet economy, information is everything: the more a company knows about a consumer, the more carefully it can tailor its advertising to that customer, and the more revenue it can generate in return. When Google first launched Gmail, it was considered groundbreaking—in part, because Gmail actually read the content of your email. It did so, not to disclose anything, but to enable Google’s algorithms to identify ads that you would likely be interested in and likely to click on. Since the internet advertising model works on a per-click basis, more clicks means more revenue.
At the time, what Google was doing was considered somewhat controversial. But today, I suspect that most Gmail users have no idea that their communications are constantly being mined for commercially useful clues.
Google, of course, is not alone. Facebook has a facial recognition database to identify people in pictures before they identify themselves. It keeps information about users’ on-line purchases to help companies advertise more effectively. More broadly, the data mining business is exploding. And do we really think foreign intelligence services won’t take advantage of this new capability?
Yet we recoil from our American intelligence services taking advantage of technology similar to what we expect foreign intelligence services must do, and what we know private corporations already do.
Admittedly, there are obvious differences between what companies do and what intelligence agencies do. But as a practical matter, it is virtually impossible to go through your day without interacting with any of several major internet companies. If you send an email to a Gmail user—even if you do not have a Gmail account yourself—that email will still be automatically scanned to provide targeted ads to the recipient.
I readily concede that government should be subject to a higher standard, because the government ultimately has the power to prosecute its citizens, to use force, and to deprive people of liberty and property. But to me, at least, there seems to be more to the popular suspicion of government than just this.
Here is where our story lines converge.
There is a voice loose in this country that purposefully derogates government. At the extremes, there are people who imagine that black helicopters and blue helmets will come and take away their liberty, and people who dream of abolishing the IRS and shrinking the federal government to the size where you can drown it in a bathtub.
More to the middle, vast commercial interests have a huge stake in shaking off government regulation. The coal industry wants to pretend that climate change isn’t real. Wall Street wants to pretend it will behave responsibly if left unregulated. Agribusiness wants to exempt its waste from regulation under the Clean Water Act.
A common strategy in all of these efforts is to deprecate the government agencies who do the work to protect us.
There is big money at stake. Just on climate change, the International Monetary Fund this month estimated the effective American subsidy to the fossil fuel industry at $700 billion per year. A government that is, to quote FDR, a “mere appendage” to business interests is a hugely valuable proposition to those interests.
So the campaign to demean and denigrate government goes well beyond America’s ideological extreme; it is motivated by much more than overheated imaginations; and it has solid financial backing.
Everything that government does isn’t good. And much that corporations do is very good.
But I contend that a corporate-backed, ideology-fueled effort to deride and diminish the government of the United States exists, and has gotten out of hand. I contend that the consequences of that corporate-backed effort of derision and diminution play out in the way America views the service of NSA personnel, and in the way Congress debates NSA programs. It helps explain why “we the people” today are so much more amenable to expansive corporate surveillance of our activities than we are to the far narrower programs that protect our national security. Powerful corporate interests have a powerful stake in a worldview deeply suspicious of the government powers with which they contend.
Unfortunately, once you propagate that worldview, it’s hard to constrain it to the SEC, or the IRS, or the EPA, or whatever is your federal regulatory body of immediate concern. Suspicion of government as the enemy leaks out, touching all elements of the federal government.
I contend it has influenced this past week’s activities in the Senate resulting in the lapsing of Patriot Act authorities.
To me, the success of this campaign of denigration means two things. One, people serving in government have to be like Caesar’s wife, hyper-attentive to any hint or shadow of misconduct. The scrupulous adherence of NSA personnel to law is not just a matter of honor and propriety. It is a matter of necessity.
Two, we have to start pushing back.
When all is said and done, the men who left their bloody footprints in the snows of Valley Forge did not do so to create Exxon, or Monsanto, or Goldman Sachs. They did so to create a government of the United States of America. The contest is still afoot that Teddy Roosevelt saw, “to determine who shall rule this free country”—a contest between the people, and wealthy interests “peculiarly formidable . . . behind the breastworks of corporate organization.” The threat Thomas Jefferson saw from “monied corporations which . . . challenge our government to a trial by strength,” has not gone away.
Pushing back, of course, is not the task of the men and women at NSA. They have chosen a path of duty that takes them out of the political fray. But in honor of their service, and the silent, proud service of many who have gone before them, others must push back.
It is ironic that some of the loudest voices in the debate about surveillance reform are corporations that make billions of dollars mining the personal information of their customers. It is also ironic that those who guard our liberty are challenged in the name of liberty. Such challenges often quote Ben Franklin’s saying: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Let me close with the back story of this quotation, showing what Franklin actually meant by those words—a back story unearthed originally on Lawfare.
His provocation was a contest for power between the wealthy Penn Family and the colonial government of Pennsylvania. The Pennsylvania Assembly had sought to impose a tax in order to fund the defense of the Commonwealth in the French and Indian War. But the Governor—who was controlled by the Penn Family—kept vetoing it. The Penn Family offered to help fund the colony’s defense, with a condition: only if the Assembly renounced its right to tax the Penns in the future. This offer was what Ben Franklin was reacting to.
So the “essential Liberty” Franklin was defending was the right of the people collectively, through their elected representatives, to fund their common defense without yielding to the wealthy and powerful Penns.
The threat to “essential Liberty” was not the government, it was amassed private power.
In proper context, Ben Franklin’s saying should remind us that, as necessary as it is to be vigilant in safeguarding the individual rights of our citizens, we also must be mindful to protect against excessive control over our government by forces of wealth and influence. And we must be alert to the means by which those powerful forces pursue control. They are of course free to do so; but we should not be ignorant or beguiled. And we should pay particular note when that contest influences how Americans react to the legitimate activities of our intelligence agencies, empowered and constrained by law, working to keep our country safe.
Sheldon Whitehouse is a United States Senator from Rhode Island. This article was adapted from his Law Day speech yesterday at the National Security Agency.