The End of Benign Ignorance

A Bayesian network analysis stamping on a human face forever.

A Bayesian network analysis stamping on a human face forever.

“Hi, NSA? This is DEA. What? You KNEW we’d be in touch? Oh, riiiight. Yeah. So, ah, anyway, let’s do lunch…”

For a long time our government has had the luxury of not even being able to know about an ocean of petty, often victimless crime. Our laws were born into benign neglect. This was not by choice, but by technological necessity. Knowing everything just wasn’t possible: If some citizen grew a few pot plants, hired a couple of illegals, kept a modest cache of unregistered weapons, or paid — in cash — for sex, probably no one would ever be the wiser. As long as you weren’t a total dumbass about it, you wouldn’t face any legal consequence at all.

Like the fish in the water, we lacked a term for our happy state of affairs. We clearly need one now, and so I’ll coin it: For many years, our government’s benign ignorance was a limiting factor in the growth of the carceral state. That may be ending. When it does, our law enforcement will look very different.

Benign ignorance permitted the rise of legislation that no one ever expected to see systematically enforced: It’s illegal to grow vegetables in your front yard in Los Angeles. You often can’t legally photograph or video a cop. There are some very easily violated laws about the mailsimages of which, yes, they’re scanning now. Do magic mushrooms grow wild on your land, as sometimes happens in, like, all of North America? Uh-oh. And let’s not even get started about intellectual property rights, which everyone violates absolutely all the time. Under benign ignorance, copyright only catches the really big fish, which is probably just how things should be. But without benign ignorance? Somebody better tell aunt Francine. (“And tell her in person, you dolt! Do not call her on the phone!”)

As we all know now, the NSA has our telephone and Internet metadata. They appear to be able to get our browsing and search history as well as our passwords. They very likely have mobile phone location data. Did you turn your phone off? It doesn’t matter. And we’ve just learned that they can also read encrypted VPNs.

That means the NSA knows. They know about your bitcoins. They know about your porn. They know about your guns. They know about your drug dealer. And they know about Ashley Madison. Or Grindr. Or Bang With Friends. Or whatever it is you depraved sickos get into these days. They also know about the illegal stuff, of which the less said the better.

It’s only natural that other government agencies are going to want what the NSA now has. If they get it, things are going to change in ways that we can’t even imagine. This story of a police raid after searching for “backpack” and “pressure cooker”? Only the beginning.

Now, readers, the linked is a developing story. It’s not yet clear how things will shake out in this particular case. But whether it’s true, or erroneous, or even just a very clever hoax will hardly matter long-term. Whatever it may be, the story has legs because it’s a vision of a terrible future, one that absolutely nobody wants. And it’s coming straight for us.

As far as I can tell, the only thing standing between us and that is the NSA’s tendency to follow rules — that is, the tendency to follow rules possessed by individuals who have shown absolutely no tendency at all to follow rules. At least not when they’re inconvenient.

Benign ignorance is dead. They’re not ignorant anymore. They haven’t been for a long time. Now we know that they know — and they know that we know that they know.

So what comes next?

It could be very, very bad, depending on our political will, or lack thereof. We might get the only thing worse than losing the drug war, which is actually finally winning the drug war — as in, anyone who uses pays the full, on-paper legal price for their crime. I don’t think anyone ever expected this to happen. We can’t count anymore on benign ignorance to keep people like the young Barack Obama, the young George W. Bush, the young Bill Clinton, and the young [everyone else now in overprivileged Washington] out of prison.

Making a new crime as a mere act of political theater has always had some costs, of course, and I’ve usually thought those costs were too high. Seldom is a law entirely without teeth. But as of today, the teeth bite harder.

Which may turn out to be a very good thing, in some ways: Those in power only pay attention when the laws affect them or the others close to them. They may think twice about future bad laws.

But the end of benign ignorance could also turn out to be a very bad thing. We have no particular reason to expect that the surveillance state will be administered impartially. There might be some neighborhoods, some exclusive Internet services, or some procedures that slip the net. With official approval, of course, subject to revocation by some elite. And those gatekeepers, whoever they are, will hold the real power.

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49 thoughts on “The End of Benign Ignorance

  1. While I believe in the right to privacy, this largely reads as a parade of horribles to me.

    How many people really have bitcoins? Also I think you can reasonably disagree about whether bitcoins can and should be legal or not* How can the government not know about them when they are talked about on NPR’s Planet Money? Same with the Silk Road?

    Ashley Madison advertises on billboards and buses in every corner of the United States. I’ve yet to hear of the government arresting or publicly outing someone for being on Ashley Madison. Same for Grindr.

    *The ultimate problem of ideology and partisanship is that it causes people (myself included) to forget that reasonable people can disagree on a wide-variety of issues. We naturally begin to assume that those who disagree with us are innately unreasonable instead of having potentially valid reasons for disagreement on various policy issues. Do you think that there are reasonable arguments to be made against the legalization or use of bitcoin? certain narcotics? I think this kind of polarization is more likely to destroy the US or any other government than anything else.

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    • I did note, by very clear implication, that the legal things were legal. Which is not to say that they’re not blackmail-able. They most certainly are.

      As to whether it’s a parade of horribles, well, maybe it is. Do you mean to say by calling it one that anyone who thinks the future might turn out badly in a lot of different ways just needs to sit down and shut up?

      If not, what is the point of the comment?

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      • Have you found any stories about a government official blackmailing people over their grindr and Ashley Madison accounts?

        I don’t suspect it would go very far.

        Perhaps I am alone in this but I have a distaste (and often distrust) of inflammed rhetoric and hyperbole and that is why I made my parade of horrible comments. You make it sound like the U.S. is going to be turned into one large prison colony.

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      • You make it sound like the U.S. is going to be turned into one large prison colony.

        I don’t think that’s what Jason is arguing at all. He’s not talking about likely – probabalistically, say – outcomes, but rather that coupling of the power of government with its access to incriminating information is a new frontier for citizens and government alike. That old laws passed via benign neglect can now be enforced rigourously. And given government’s mandate, they should be, no? There’s a basic tension here, yes? So something’s gotta give.

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      • As usual, Stillwater, you understand me properly when others seemingly try hard not to.

        I don’t seriously imagine 50 or 100 million people in prison. Not at all. It looks like a possibility considering just the technology and laws, but other things seem likely to intervene.

        One of those things is privilege — as I say quite clearly, it seems that “We have no particular reason to expect that the surveillance state will be administered impartially.” Probably we’re headed for a regime of very arbitrary enforcement, even worse than what we have now.

        The other alternative, the one I hope for, is a day of reckoning when we repeal some of the laws that so many have been breaking for so long and so harmlessly.

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      • I don’t fear that we will have 100 million in prison so much as we will have 100 million people, any of which can be put in prison if they attract the wrong kind of attention because it will be trivial to find something they have done that is technically illegal even if they didn’t know it at the time.

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  2. I live in America. I am surrounded by people carrying video cameras in their pockets. Before long, they’ll be wearing them. (Those that don’t already, as spy gear that the CIA would have killed for in the 80s is available online for anyone to buy).

    Every website I visit collects as much data on me as it can, and sells it to anyone with the cash to buy it.

    Most of my adult life revolves, in one way or another, around my credit rating — the history of what I’ve bought, when and where and how much, and how I paid for it.

    I live in a panopticon, and it’s only going to get worse.

    I think that the ‘government’ is not the only problem, and possibly not even the worst — since the altering the base motivations of the government is, at times, as easy as getting enough angry people to vote. Whereas in the private sector, things are done for motivations…harder to change. (In short, if it profits them to sell my information, getting them to stop is going to be very, very hard).

    Cheap, wearable cameras, cheap bandwidth and cheap memory are altering the face of society. Worrying just about the government seems like standing in front of a tsunami and being worried there might be some sharks in it.

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    • altering the base motivations of the government is, at times, as easy as getting enough angry people to vote.

      Do you approve of putting people in prison for pot?

      How easy has it been to undo that one?

      How many corporations can put you in prison?

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      • Isn’t the problem with pout that until fairly recently most people wanted it to be illegal? We are finally getting congresspeople to support legalized pot like Barney Frank.

        California’s legal pot resolution failed when? 2009? 2010? It is pretty amazing that Colorado and Washington passed their resolutions so quickly after the failure of the California proposition.

        San Francisco had a local referendum in 2008 that would have essentially legalized/decriminalized sex work. IIRC, cops and sheriffs would have been stripped of the ability to arrest sex workers. The resolution failed by pretty substantial margins and this is liberal San Francisco.

        And if the anarcho-capitalists have their way, a corporation might be able to put me in jail.

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      • I do remember being told many times that by all sorts of conservatives and libertarians that our system is made to be hard to change. Majorities have limited power and such. Now that is usually told to me when i say we should have Uni HC or more Head Start or guff like that. Just because a lot of people want Uni HC doesn’t mean we should rush into some rash experiment. It’s meant as a check on fed power that majorities can’t do whatever they want and that there are many, many veto points in the system. Fair enough i guess, but if you fall back on our gov is designed to move slowly and also not respond quickly to majorities then that works for everything, not just what liberals want. Some people like gridlock since that means the gov can’t do anything new since whatever the gov does is likly to be bad. Well sclerotic gov can’t really change for the better much either.

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      • Greg,

        Good points.

        It seems to me that American politics is often about wanting it both ways. Proudly pointing out when you are in the majority and then shielding oneself under the “minority should be protected from the tyranny of the majority” when not. It is rather frustrating.

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      • Do you approve of putting people in prison for pot?

        How easy has it been to undo that one?

        How many corporations can put you in prison?

        No, but I’m a minority. Quite hard, because I’m a minority and Nope, but the only thing stopping them is government.

        You should take a look around, or even at our own history, and take a gander at the sort of abuses of liberty that private companies can and have done in the pursuit of profit. Wholesale murder, theft, imprisonment, assault……

        Power is power, whether wielded by the consent of the people or a very large bank account. It’s still power. One of the failing of many libertarians their cheery, optimistic, hopelessly naive belief that the the power of the almighty dollar would never, ever do that.

        Power is power. The man pointing a gun at my head has, at that moment, more power over me than any government or corporation. The actuary deciding whether my insurance will cover a critical procedure has, in that moment more power over me than the government. And of course the cop that just pulled me over has, at that time, more power over me than the government.

        It’s all power. I feel I’m quite, quite, QUITE lucky to live in a society wherein the power we worry most about is that of the representative democracy that governs us.

        Because it means we’ve used the power of collective action — ourselves, as a society — to beat the snot out of most of the other worries, so now we only have to worry about ourselves.

        Because, you know — power is power.

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      • lol. Edited something and hosed it — the cop that pulled me over has more power than the actuary. :)

        Seriously, power is power. You need power to fight power. *shrug*. It all boils down to “How do you want to allocate it”.

        I don’t deny the US government is a powerful, dangerous thing. So is AT&T — or Shell. Or Xe. Just take a look at what companies have done in the past — and even the present — where there aren’t governments strong enough to stop them.

        That doesn’t mean I want a nationalized society or trust the US Government, oh no. :) Checks and balances all around, please.

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      • “Slippery slope” is the second most misused informal fallacy on the internet, after ad hominem (which people seem to think just means “personal attacks”). An argument from consequences is not a case of the slippery slope fallacy if a.) the impetus for the argument is already a step well within an identifiable causal/historical chain of events, b.) there is a clear causal mechanism that gets us from the event in question to the unsavory event at some point in the future/further down the causal chain, or c.) the eliciting event is not a trivial one, but a rather momentous one, even if it is not an (obvious) part of a well-documented chain of events.

        Jason’s clearly not making a slippery slope argument, as he has at least implicitly identified a causal mechanism, he’s speaking not of trivial events but of rather momentous ones in the history of state surveillance of private citizens (even if it’s not a bad as many of us initially feared, and some people still fear). He is making, as Jay points out, a fairly straightforward inductive argument: If it is the case that the state has a particular capability, and if it is further the case that the state has begun to use that capability for a particular purpose, then based on the behavior of the state in the past, certain negative consequences are likely, at least likely enough to be worrisome, to follow. And as Jaybird points out, the people who are most likely to be affected are the people with the least power to do anything about it.

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      • Power is not power. That’s a sort of reductionist nonsense. The state has certain tools of power that corporations generally do not, and which make its power both qualitatively and quantitatively different (“the law of the transformation of quantity into quality and vice versa,” as some dude once laid it out, or something like that). Granted, one could argue (correctly, I think), that in many ways corporations/money co-opt this power, but that they need to do so is evidence enough that power is not power. Power is myriad, even if it’s always power.

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      • NewDealer,
        Corporations still kill people (tho more selectively these days).
        They also enslave folks, etc. etc.

        Jason,
        Can you arrest a corporation? No, but you can dissemble it, and
        the government knows how to put pressure on just about anyone.

        If a corporation ever tried to blackmail the government, we’d
        get to see how much “too big to fail” really matters. (IMNSHO,
        not very much at all).

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  3. I’m going to add that a lot of people don’t care about this because the Internet is pretty much destroying any idea of privacy. People willingly and knowingly share some very intimate details of their life online. We are having an entire generation of children whose parents are exposing their growing up to the entire world.

    If we want government to respect our privacy, we need to have a concept of privacy. A lot of people don’t anymore. They desire to stand naked through out the world on the Internet.

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    • I may be liberal about putting up pictures and checking into locations on Facebook (I’m not, but let’s assume I am), and I my Internet surfing may leave a bunch of breadcrumbs for advertisers to pitch me products, but I don’t think it follows from there that I have sufficiently surrendered conceptions of privacy to the point that I shouldn’t object if the government is tracking my keystrokes.

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      • I’d agree with you in general, but i think the point is that when people happily give up and/or acquiesce to having most of their privacy taken away by all sorts of businesses and social media its unrealistic to think they will also have some bright line about the gov doing similar things. Is that the way it should be: no. Should people see a big difference between those things: yes. Will they: most won’t.

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      • That’s actually an argument in favor of the existence of slippery slopes. “You have already agreed to X, it seems unreasonable that you did not expect X+1 to happen.” There’s no bright dividing line. The slope is slippery.

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      • No slippery slopes are a logical fallacy. That does not mean things don’t change or go in one direction. But those directions change or reverse at times. Also just because A leads to B doesn’t mean it will go to Z.

        Slippery Slopes are lazy arguments.I fart in the general direction of slippery slopes. SS arguments aren’t just if you agree to X then X + 1 is likely. It’s if you agree to X then inevitable we will end up with X + 50 so we shouldn’t discuss whether X is a good idea, if its likely to lead to X + 50 or how we can have X without all that other poo.

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      • “Slippery slope” may be a logical fallacy but “modus ponens” remains one of the accepted mechanisms for the construction of deductive proofs.

        Sometimes “If P Then Q” is, in fact, a true premise.

        At that point, if you want ~Q, you’d best avoid P.

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      • Not all slippery slope arguments are slippery slope fallacies. That X makes X+1 more likely and we should be wary of X is a slippery slope argument. If I argued that I should oppose the collection of data by corporations because that will be used to justify the government collecting information on me, I’d be making a slippery slope argument.

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      • I’m in a bit of rush, but i’ll throw out that logic is cool and all that. I mean i love Spock, but i’m not totally sold on the use of formal logic to determine what is a better practical idea. Things can be logical and not work or vice versa. I trust a bit more in data and research to tell me what works than logic.

        I know i’ve said this before, but slippery slope arguments = people calling Stalin ( or Lysenko if you prefer) vs. Somalia on others. Lots more heat than light.

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      • Greg gets one of my points. My other point is that I think that people have less of a concept of privacy than they do in the past, especially millennials. I’m going to really be surprised if people born after 2000 are going to have any concept of privacy since their parents are posting pictures of them to the entire world through social media. People are simply putting too much out in public on the internet for me to say that they have a sufficiently developed concept of privacy.

        The idea of privacy implies that there are things that you want to keep secret from government, from your family, from your friends, from your neighbors, and from your employers. We have people openly posting things to the internet that would have destroyed their lives not so long ago if anybody found out. One thing that we didn’t mention in our discussion of Babbit was that there used to be a facade of respectability that most people had to maintain. We don’t have that anymore. We’re more free but maybe privacy was a fatality of giving up the facade of respectability.

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      • The idea of privacy implies that there are things that you want to keep secret from government, from your family, from your friends, from your neighbors, and from your employers.

        What does “want” have to do with anything?

        There are things that are my business that are not your business. There are things that are your business that are not my business.

        The fact that someone else out there sends you a picture of his kids doesn’t mean that you have a right to know what my kids look like.

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      • Lee, I just don’t think it’s right that young people don’t have a conception of privacy. Or that what they put on Facebook is really all that indicative of how they feel about the government.

        I mean, anyone with parents has a conception of privacy. Even when they’re out of the house.

        I think it’s an enormous stretch to argue that what they put on social media is indicative of how they feel about the government.

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      • Given that research has shown that people very deliberately paint a particular picture of their lives on Facebook and other social media, suggesting that they have a very keen sense of privacy and have no intention of airing the true messiness of their actual lives, it seems unlikely that people coming of age in the era of online social media are going to lose any sense of privacy.

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  4. To anyone who knows: my criminal law professor once mentioned that Roman law once contained several “laws without sanction,” aimed at social behavior deemed undesirable but not worthy of punishment beyond social stigma. This concept has always intrigued me, but I could never find much about it. This post reminded me of it again, and wondered if anyone else had heard of it or knew of any references.

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    • The only thing I remember about the Roman influence on American law is the distinction between Malum in Se and Malum Prohibitum.

      Aren’t infractions/community service a system of laws aimed at undesirable social behavior but unworthy of major punishment? The same with Community Justice Centers for small crimes.

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    • Roman judges were more like arbitrators. They were not legal authorities. The parties could work through a list of judges, deciding which one they both agreed would give them justice. The cases would start up, the judge ran his court as he liked — and when everyone had had their say, the judge could even refuse to pass judgement in the case.

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  5. Laws are made by and for the powerful.
    Seems some (rich) folks got sick of being blackmailed.
    Hence HIPAA.
    In everything, there is a balance.

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  6. Not sure about the US, but in Canada, if you buy a packet of poppy seeds – the ones every grocery store has in springtime in their seed racks – and plant them in your flower beds, you are manufacturing a Schedule I narcotic. Which is good for up to life imprisonment, and a minimum of two or three years (the “or three” part is due to a really really stupid amendment recently introduced by our current Conservative government. If you rent your home rather than owning it, that would trigger the three year minimum).

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    • A few years ago the local PD tramped through a grandmother’s flower garden to seize her poppies as if it were a major drug bust. The local paper got some amusing type out of it.

      The fact that many people make their facebook page “private” indicates that they don’t wish to share their lives with “everyone”. They do still have some sense of privacy. What I find most troubling is that most are sadly uninformed about how little privacy they have from professional marketers and the government. The information is available whether you use the internet or not. Still others are simply resigned to the fact that it is unavoidable. We used to rely somewhat on being a face in the crowd to provide anonymity. Some people are still thinking in that context being blissfully unaware of the granularity of meta data being collected on all of us.

      Another aspect of this discussion that hasn’t been mentioned (surprisingly), is the rogue element. Our credit card accounts and bank accounts are frequently hacked to steal money, fortunately the banks and retailers have absorbed the losses so far. What other uses can be made of data collected on us by unscrupulous individuals with access to high levels of information?

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      • Please allow me to edit one statement.

        “fortunately the banks and retailers have absorbed the losses so far.”

        a cost which banks and retailers treat as a business expense and roll into the cost we pay for everything we buy.

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  7. It’s not yet clear how things will shake out in this particular case. But whether it’s true, or erroneous, or even just a very clever hoax will hardly matter long-term.

    This seems like an odd way to present evidence; if it doesn’t matter weather the story is true or falsified, why bother referencing it? As it happens, the story does appear to be erroneous: the employer was the one who reported the searches, not the NSA, and the searches weren’t for “pressure cookers” but for “pressure cooker bombs”, an omission that almost moves the whole story into hoax territory. I guess that’s not supposed to impact your argument, but one of the main criticisms from the other side is that there aren’t really any known instances in which the NSA policies have been systematically abused. The fact that you have to use imagined or erroneous stories to make your point basically concedes this fact.

    As far as I can tell, the only thing standing between us and that is the NSA’s tendency to follow rules — that is, the tendency to follow rules possessed by individuals who have shown absolutely no tendency at all to follow rules. At least not when they’re inconvenient.

    I think spending any amount of time looking at repressive democratic regimes such as Russia would reveal this to be a grossly exaggerated claim. US administrations have had all the powers available to Vladimir Putin to shut down or federalize free media; to jail prominent opposition leaders or businessmen on trumped-up charges; to sanction state hits on uncooperative journalists; etc. The reason this hasn’t happened in America isn’t because our leaders are better people, but because our system of checks & balances and party opposition has been effective. Clearly there are many extremely inconvenient rules that the state follows. There are also rules that get broken but are prosecuted for. And then there is the minority of rules that are neither followed nor litigated: racial profiling and intimidation policies such as stop & frisk; breaking into private homes and shooting the family dog; excessive militarization of police, etc. Pretending like all rules fall into the third category is unfair, and it conveniently frees you from having to demonstrate how this NSA policy is unlike the millions of policies that don’t fall into category three.

    With official approval, of course, subject to revocation by some elite. And those gatekeepers, whoever they are, will hold the real power.

    Those gatekeepers are duly elected representatives (or their appointees), subject to internal checks by a fierce opposition party as well as the full weight of the law – tools which have worked successfully against nearly every administration position from the president on down. There is no relevant feature that would define these people as “elite”, certainly not anything that’s been demonstrated in the post. In fact, the concluding paragraph can just as easily be applied to any government program. I could go through the piece and replace NSA with any other policy and it would be just as effective – public libraries (censorship!), public utilities (fluoridation!), public health-insurance (death-panels!), public emergency management (FEMA camps!) – and they’re all bad because DRUG WAR! As such, this isn’t really an argument anymore but simply a statement of personal preference against government.

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