NSA Surveillance Program: 'It's Going to Get Worse'

By Dave Eggers, Guardian UK

21 December 13

The NSA's surveillance programme is prompting many US writers to abandon topics that could be deemed too sensitive – yet that programme looks set to grow.

ost people would object to the government searching their homes without a warrant. If you were told that that while you are at work, the government is coming into your home every day and searching it without cause, you might be unsettled. You might even think it a violation of your rights specifically, and the bill of rights generally.

But what if the government, in its defence, said: "First of all, we're searching everyone's home, so you're not being singled out. Second, we don't connect your address to your name, so don't worry about it. All we're doing is searching every home in the United States, every day, without exception, and if we find something noteworthy, we'll let you know."

This is the essence of the NSA's domestic spying programme. They are collecting records of every call made in the US, and every call made from the US to recipients abroad. Any number of government agencies can access this data - about who you have called any day, any week, any year. And this information is being kept indefinitely.

This is as clear a violation of the fourth amendment as could be conjured. That amendment protects us against unreasonable search and seizure, and yet the NSA is subjecting all American citizens to both. By collecting records of who we call, the NSA is searching through our private affairs without individualised warrants, and without suspecting the vast majority of citizens of any crime. That is illegal search. And storage of this information constitutes illegal seizure.

A series of revelations about the activities of the NSA has alarmed civil liberties advocates and fans of the constitution, as well as those who value privacy. But until more recently, with the ever-more-astounding revelations made by Edward Snowden, most of the US citizenry has been sanguine. Poll numbers indicate that about 50% of Americans think the NSA's surveillance is just fine, presumably taking comfort in two things: first, in the agency's assertions that it's only the metadata that they're collecting - not the content of the calls; that is, they only know who we have called but not what we've said. Second, General Keith Alexander, the director of the NSA, has said that through this sort of data mining, they have prevented "over 50" terrorist attacks.

The problem here is that two things cannot be proven: we can't prove the assertion that 50 - or any - terrorist attacks have been prevented; and more pressingly, we can't prove that the NSA isn't doing more than collecting this metadata - or won't do more unless its powers are checked.

A few years ago, John Villasenor, senior fellow at the Brookings Institution, wrote a terrifying study called "Recording Everything: Digital Storage As an Enabler of Authoritarian Governments", which explains how easy it is for a government to record and store the entire contents of all calls made within any country. The technology is readily available now, and the storage costs are so low that Syria, for example, could record and store all phone calls made by its citizens in a year for about $500,000, or two cents per person. It's not a great leap for any government, including our own, to go from collecting metadata to collecting all audio.

Unchecked, the NSA will surely avail themselves of these economies of scale. If and when they begin to record all phone calls, or when a whistleblower reveals that they're already doing this, again the NSA will say that there is no harm done, given that no one is being targeted specifically, that computers are simply scanning all of this audio for certain keywords. They will say that the vast majority of us - those who are presumably doing nothing wrong - will have nothing to worry about. No doubt the NSA looks at the poll numbers, that enabling 53%, and sees it as a mandate to continue and expand.

In an effort to get someone riled up about these troubling trends, PEN International, an agency that protects creative expression worldwide, surveyed its American members about their feelings about the NSA's unbounded reach. The resulting report, "Chilling Effects: NSA Surveillance Drives US Writers to Self-Censor", reveals that 88% of the writers polled are troubled by the NSA's surveillance programme, and that 24% have avoided certain topics in email and phone conversations. Most disturbingly, 16% of those answering the survey said they had abandoned a project owing to its sensitivity.

The survey is troubling on many levels. The gut-level response is dismay that any writer would give up so easily - that any writer would be so readily cowed into submission. After all, to date, the NSA's surveillance hasn't landed any writers in jail, and though there is no doubt a watchlist - and, by the way, any constitution-loving writer should want to be on such a watchlist - no one on PEN's membership has so far been hauled in for questioning based on their phone calls, searches or internet activity.

Wajahat Ali is a Muslim, American lawyer, essayist and playwright of Pakistani descent. He has written extensively about Muslim-American issues, and now hosts a TV show on Al Jazeera USA. "When I read that," he said of "Chilling Effects", "my first reaction was, 'Welcome to our world'. Muslim-Americans have been living with the presumption of this kind of blanket scrutiny for what, 12 years now. We've had to assume that all our phone calls, emails, social media and text messages are being monitored in some way." Ali says he doesn't self-censor, but he is exceedingly aware at all times that his messages might be scrutinised. What if the government doesn't like an essay he writes, and then, searching through their metadata haystack, sees that he has donated to some Palestinian relief organisation deemed questionable? In minutes they have enough on him to make a mess of his life. Ali and legions of other Muslim-Americans have had to adopt a cathartic sense of humour about it, he says, citing the times when he has written "Hello NSA!" in text messages and emails.

"A writer's job is to look for trouble." That line was uttered by a character in The Front, the 1976 film about the McCarthy blacklist era. In the film, Woody Allen plays Howard Prince, a small-time bookie who is asked by an old friend, a blacklisted screenwriter, to be a front, signing his name to scripts penned by writers suspected of communist sympathies. Prince agrees, and soon attracts the notice of the House Committee on Un-American Activities himself.

Watching the movie now, parallels between that era and our own are many - the generalised air of suspicion, the pernicious feeling of being watched but not knowing when. But then, so far the government hasn't used any of its metadata (or whatever it's collecting) to ruin any writer. The movie's screenwriter, Walter Bernstein, himself was blacklisted and deprived of work. His phone was tapped, he was followed by FBI agents, his friends were harassed and he was denied a passport.

I reached Bernstein, now 94 and still writing, by phone at his home in New York. When the Snowden revelations became public, he was surprised not that there was surveillance, but by the extent of it. "Then again," he said, "if they're able to do it, they will do it." It couldn't be as bad now as it was then, could it? I asked. "In some ways," he said, "it's worse now. Now the surveillance extends to everyone. And it's going to get worse. The crimes committed in the name of national security are very great, and there's no answer to it."

Bernstein got his say in The Front, though. At the end of film, Howard Prince decides not to cooperate with McCarthy's minions. In a private meeting in which he is supposed to sign a loyalty oath and provide names of communist sympathisers, Prince, until then apolitical, has finally had enough. He turns on his interrogators and roars: "I don't recognise the right of the committee to ask me these kinds of questions. And furthermore, you can all go fuck yourselves." Then he goes to jail.

Bernstein notes that at least in the 1950s there were faces attached to one's accusers: there was McCarthy himself; there were the FBI questioners; there were senators and courts and hearings. Now it's a shadowy agency that seemingly answers to no one. If you want to know what information the NSA has been collecting on you, you have no recourse. You can't file a request through the Freedom of Information Act. Or the Privacy Act. Years ago, the novelist William T Vollmann, following a FOI act request, found that the FBI had an extensive file on him, because they were relatively sure he was the Unabomber.

But now, given the government's reliance on the state secrets defense, "I would say you have no chance," says Rachel Levinson-Waldman, an attorney with the Brennan Center at the NYU School of Law. In "What the Government Does with Americans' Data", Levinson-Waldman wrote what is perhaps the most comprehensive and lucid study of the NSA's spying and its potential for misuse. She pointed out something interesting about the PEN study: if writers assume they're being watched, then "it could eliminate whole areas of inquiry. They could say, 'It's not worth it to me to come to the attention of the government.' And difficult subject matter might only be pursued by those who think themselves invulnerable to scrutiny."

Think back to all the messages you have ever sent. All the phone calls and searches you've made. Could any of them be misinterpreted? Could any of them be used to damage you by someone like the next McCarthy, the next Nixon, the next Ashcroft? This is the most pernicious and soul-shattering aspect of where we are right now. No one knows for sure what is being collected, recorded, analysed and stored - or how all this will be used in the future. "Citizens of a democracy need a zone of privacy, and have control over it," Levinson-Waldman says. "If you really don't have control over it, you can't become an actualised member of society."

Bernstein, who survived McCarthy, whose former friends used to cross the street rather than be seen talking to him, is as scared as he's ever been. I asked him to convey advice to writers and to us all.

"Well," he said, "All I can say is that you need to resist. Resist. Resist. Resist. Resist."

•To read an extended version of this article, please click here.

• Dave Eggers most recent novel is The Circle (Hamish Hamilton).