We now know what we have long suspected: that the National Security Agency is collecting the phone call records of all Americans. And we are now justified in suspecting what we have long feared: that it is also keeping a permanent backup copy of everything that happens on the Internet, ready to be rewound and replayed in the future. Such a massive surveillance apparatus is a threat not only to privacy, but also to liberty. So what hope do we have that such power can be kept in check, and that we don't succumb to ever greater tyranny?
If the secret surveillance itself is any indication, then the separation of powers is not up to the task. According to President Obama, domestic surveillance programs are "under very strict supervision by all three branches of government." Yet it doesn't seem very strict when more than half of the Senate couldn't be bothered to show up last week for a major briefing by the government's top intelligence officials.
"Strict supervision" also doesn't seem very meaningful when you consider that the FISA Court is a hand-picked non-adversarial specialist court that approved every surveillance request it got last year. Experience suggests that specialist courts tend to get captured by their bar, and in the case of the FISA Court, that means just the government.
More to the point, a secret court issuing secret orders based on secret interpretations of the law makes any debate or commentary impossible. Even when there is a will on the part of some lawmakers to carry out oversight, executive branch officials will apparently lie under oath. So if not on the Constitution and its institutions, on what can we rely to keep government power in check?
Technology might be the answer, but not in the way you might think.
Yes, we can encrypt our communications by using PGP, Tor, and OTR chat, and we can transact using Bitcoin. These are invaluable tools of resistance to censorship and oppression. Ultimately, though, most people won't use them because they won't see any immediate benefit to justify the effort. And in a world where few use these tools, those who do will perversely draw attention to themselves.
Instead, technology might help keep government power in check the same way it helps it grow: by making it impossible for anyone to keep secrets—including the government itself.
When Daniel Ellsberg decided to leak the Pentagon Papers in 1969, he spent a year sneaking out the 7,000 classified pages one briefcaseful at a time. He spent countless hours each evening in front of a primitive photocopier, and he spent thousands of dollars on the endeavor. In contrast, Bradley Manning and Edward Snowden's leaks of considerably more data were relative cakewalks. The same digital technology that makes it possible to capture and store vast quantities of surveillance information also makes it possible for the first time in history to copy and release hundreds of thousands of pages of classified information.
A surveillance state as big as the one that's now coming into view necessarily means that there are more secrets and more people with access to those secrets than ever before. More than 92 million documents were classified in 2011, up from 76 million the year before, and 23 million when President Obama took office. All of that data is digital, and therefore eminently reproducible.
There are also over 4.2 million persons with security clearances, and over a million of those can access top secret documents. Contractors, like Snowden, are an indispensable part of the system, and there are almost 2,000 private companies working for the government on programs related to homeland security and intelligence.
There simply has to be that many documents and that many people with access in order to build and run such a massive edifice. The larger it grows, however, the more untenable it becomes. As Julian Assange pointed out in a pre-Wikileaks essay, an organization keeps secrets because if what it's doing is revealed, it will induce opposition. A small criminal conspiracy may be able to keep its secrets by limiting its numbers and not writing anything down. A large conspiracy, on the other hand, can't function unless it systematizes its activities, and that involves a long paper trail and lots of confidants, which makes it more difficult to prevent leaks.
"The more secretive or unjust an organization is, the more leaks induce fear and paranoia in its leadership and planning coterie," Assange wrote. To cope, such an organization can shrink and do less, he wrote, or introduce more security and controls and thus inefficiency. Either way, the organization's power will contract.
We're already witnessing such a reaction to Snowden's leaks. On Thursday Sen. Dianne Feinstein (D-Calif.) said that Congress plans to draft legislation limiting private contractor access to secret documents. "We will certainly have legislation which will limit [or] prevent contractors from handling highly classified data," she said. Today NSA director Gen. Keith Alexander announced that the agency will implement a "two-person rule" that would require anyone copying data to do so with another person present—a buddy system that potentially halves the NSA's efficiency.
In attempting to limit leaks, such legislation would also effectively limit government's power. That's the happy dilemma the technology introduces. Digital communications makes achieving and exploiting "total information awareness" possible, but it also makes it almost impossible to keep the resulting corruption under wraps. Secrecy just doesn't scale.