If you believe Glenn Greenwald's new book (which I reviewed here), the NSA's appetite for gobbling up communications is unlimited. Legal controls on its behavior are trivial. Its much-repeated claim that it does not spy on American citizens is a lie. And its goal in its collection activities is political control over citizens, whom surveillance renders quiescent:
All of the evidence highlights the implicit bargain that is offered to citizens: pose no challenge and you have nothing to worry about. Mind your own business, and support or at least tolerate what we do, and you’ll be fine. Put differently, you must refrain from provoking the authority that wields surveillance powers if you wish to be deemed free of wrongdoing. This is a deal that invites passivity, obedience, and conformity. The safest course, the way to ensure being “left alone,” is to remain quiet, unthreatening, and compliant.
I've been mulling Greenwald's thesis for the past few weeks, and I have a question: Why would this omniscient global Panopticon, built to induce political control, tolerate the activities of one Glenn Greenwald?
One might expect, after all, that a system posing the implicit bargain Greenwald describes would have a particular interest in Greenwald, who has spent years "provoking the authority that wields surveillance powers." Yet Greenwald appears to have lived free enough of surveillance to play a huge role in the biggest compromise of signals intelligence information in the nation's history. And he has suffered no legal sanction for his activities. Judging from the case of Greenwald, at least, the surveillance state is kind of a wuss.
Greenwald appears to have been free of surveillance before the Snowden disclosures began. If you buy Greenwald's thesis, a political dissident like him should have been a ripe target for the "collect it all" mentality and the extortionate bargain with which NSA presents us all. The fact that he, Snowden, and Laura Poitras were all citizens shouldn't have mattered, because protections for U.S. persons are all farcical. Yet it's pretty clear that none of these people were under surveillance by NSA prior to the disclosures, which took the agency by complete surprise. In other words, an insider could take a large cache of documents and approach two journalists who are both public dissenters from U.S. security policy. They could all go to Hong Kong. And they could be in touch with major news outlets and other people and it all doesn't even spark an internal inquiry or any attempt to stop them. It's not really consistent with an all-powerful surveillance state---at least not a remotely competent one. (It is, however, consistent with an NSA that, in fact, does not spy on U.S. persons in the absence of individualized suspicion and a FISA warrant.)
The more interesting question is whether Greenwald has been subject to NSA (or other) surveillance since the Snowden publications began. Here the answer is not clear. I think we can safely assume that Snowden himself is subject to whatever monitoring the intelligence and law enforcement communities have been capable of putting on him---based on highly-individualized surveillance authorities. My best guess, however, is that Greenwald and Poitras have not been subject to targeting. The reason is that, for FISA purposes, the evidence that they are working for any sort of foreign power is, well, scant. And while the government could probably make a case that they are legitimate subjects for surveillance under criminal wiretap authorities, the furor over the James Rosen subpoena has created a substantial political constraint against surveillance of journalists on the receiving end of leaks.
What is clear is that the all-powerful surveillance state has largely tolerated their activities. If it has monitored them, it has not taken action against them---except when British authorities briefly detained Greenwald's partner while he was transporting Snowden-leaked documents. It has let them receive Pulitzer Prizes. It has let Greenwald publish what is presumably a lucrative book. For all the talk of their fear of traveling to the United States, they have come and gone. There have not been charges against them. I am, to be clear, not advocating such charges, but it's not hard to imagine conspiracy charges, given the text of the relevant statutes and Greenwald's own account of his activities. Surely, a Leviathan that conducts omnipresent surveillance in order to ensure political docility would have a huge interest in making an example of Greenwald.
But apparently not. In the highest-profile case ever of someone's spitting in the face of his extortion, the Leviathan has been content to turn away and watch his foes become feted celebrities. I can't imagine why.