Michael Chertoff was secretary of the Department of Homeland Security from 2005 to 2009. He is co-founder and chairman of the Chertoff Group, a global security and risk-management advisory firm.
In the past few months, much has been written about whether the National Security Agency’s authorized storage of anonymous telephone records should be curtailed on the grounds that it’s too invasive of Americans’ privacy. This controversy has raged even though the records are generated by commercial phone companies,they contain no information other than the duration of calls (which numerous courts have treated as worthy of only minimal legal protection) and access to the records is strictly limited.
So it is striking that two recent news stories illustrate a less-debated threat to privacy that we as a society are inflicting on ourselves. Last week, a passenger on an Acela train decided to tweet in real time his summary of an overheard phone conversation by Gen. Michael Hayden, a former director of the National Security Agency (NSA) and the CIA (and my current business partner). The same day, a photo was published of Maryland Attorney General Douglas Gansler at a summer party where he was surrounded by underage youths who apparently were drinking.
Of course, the delicious irony is obvious: In one case, the former NSA chief becomes a victim of eavesdropping. In the other, a politician critical of teen drinking fails to intervene when he is surrounded by it. But both stories carry a more troubling implication. The ubiquitousness of recording devices — coupled with the ability everyone has to broadcast indiscriminately through Twitter, YouTube and other online platforms — means that virtually every act or utterance outside one’s own home (or, in Gansler’s case, inside a private home) is subject to being massively publicized. And because these outlets bypass any editorial review, there is no assurance that what is disseminated has context or news value.
Where does this lead us? If a well-known person has an argument with a spouse or child at a restaurant, should it be broadcast? If a business personality expresses a political opinion at a private party, should that opinion (or a distortion of it) be passed on to the rest of the world? If a politician buys a book or a magazine at an airport, should a passerby inform everyone?
There has been exaggerated talk about whether the government intelligence community could create a police state. But the true horror of the East German Stasi or the Maoist Red Guard was the encouragement of informants — private citizens reporting on other private citizens and even family members. No police agency could be omniscient. The oppressiveness of those police states came from the fear every citizen had that another citizen would disclose deviations from the party line.
The relevant question here is: Are we creating an informant society, in which every overheard conversation, cellphone photograph or other record of personal behavior is transmitted not to police but to the world at large? Do we want to chill behavior and speech with the fear that an unpopular comment or embarrassing slip will call forth vituperative criticism and perhaps even adversely affect careers or reputations? Do we need to constantly monitor what we say or do in restaurants, at sporting events, on public sidewalks or even private parties?
This is worth a national, and perhaps global, conversation at least as robust as the debate over government collection of telephone numbers. This debate needs to be as much about our culture as our law.