A Few Actual Harms To Be Concerned About From Today’s Government Spying Law

“Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad,” writes Washington University Law Professor, Neil Richards [PDF]. Today, the United State Senate reauthorized a controversial Obama-supported surveillance law, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA), which permits intelligence agencies to monitor international communications, sometimes without a warrant and little court oversight.

Civil libertarians are up in arms, but in the face of deadly terrorist threats, does government monitoring actually harm people? Richards’ attempts to argue that brazen government spying does, indeed, have real-world harms, including mass self-censorship and blackmail, and supplies moderately compelling evidence that will appeal to those naturally scared of the government.

Without the Senate’s support, FISA’s powers were set to expire at the end of the year. Fierce FISA critic, Senator Ron Wyden (CrunchGov Grade: A), who released a hold he put on the bill in exchange for limited congressional debate, worries that evidence of government overreach means that FISA could lead to more unnecessary spying. The scope of monitoring and the admitted breaches of the 4th Amendment are themselves shrouded in secrecy. Proponents, such as Representative Lamar Smith, (CrunchGov Grade: F) argue that national security concerns are worth the trade-off.

Under the worst-case scenarios, how could spying from democratic governments actually hurt people in a way that would offset the increased risk of terrorism?


“Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth,” wrote Supreme Court legend, Louis Brandeis. However, “surveillance inclines us to the mainstream and the boring,” writes Richards, who argues that the omnipresent threat of government monitoring makes our discussions risk-averse and devoid of important contentious dialog. Certainly in Soviet-era Russia, the very real threat of being hauled off to the icy gulags undercut democratic debate.

There is some evidence that users self-censor in the presence of a watchful eye. In one experimental study, monitored participants were less likely to engage is neutral topics or discuss issues that were incriminating or critical of their colleagues.

There is no equivalent study of government spying or its effect on mass dialog. Certainly there is no shortage of criticism on President Barack Obama’s Facebook page. But, perhaps the effect only applies to government officials with actual knowledge of government malfeasance. Without good evidence on the chilling effects, we’ll let readers decide whether self-censoring behavior extends to government employees.

Blackmail and Coercion

“Information collected surreptitiously can be used for other purposes, whether blackmail or the discrediting of opponents by revealing embarrassing secrets,” Richards writes. Under constant surveillance, governments invariably pick up unintended bits of incriminating evidence. For instance, Richards points to how FISA-surveillance led to the discovery of evidence that a terrorist suspect murdered his own daughter for dating the wrong boy. “Whether these discoveries are important, incidental, or irrelevant, all of them give
greater power to the watcher.”

Perhaps a more compelling example was how the Federal Food and Drug Administration spied on scientists who alleged that the agency was approving dangerous medical devices. According to ABC, only one of the scientists being monitored still works for the FDA. The others were either fired or their contracts were not renewed. Thus, overactive government spying could potentially be used to snuff out important critics.

Richards makes a valiant attempt, but one would think that the over-the-top rhetoric from the Electronic Frontier Foundation and The American Civil Liberties Union would be supported by some jaw-dropping evidence. Instead, it mostly appeals to those who are naturally afraid of the government, and willing to bet that the worst-case scenarios, even without much evidence, will come true.

Civil libertarians aren’t making an unreasonable bet that the government will overstep its authority, but they’re just as reasonable as the many congressmen who voted to authorize the bill for the sake of saving American lives.

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