Mike Doughney

There are times when the events of the day, and the public reaction to them, make clear that some clearly present, but not always visible, fabric of society has been changed out from under the average person – and few have noticed.

I refer of course to the Eliot Spitzer matter, and the reaction that has since appeared in various blogs, such as here and here and here. I would like to think that these writers have a clue as to what’s been developing in their country lately. Through their reflexive insistence that Spitzer is the victim of some kind of politically-motivated action, they clearly don’t.

Let me put it in simple terms for you: Spitzer was simply on the wrong end of the surveillance state, a system that has in some way been in the pipeline for decades, but in the past decade – and certainly since 9/11 – it has taken on the current form.

There are two main parts to this state. They have to do with law, offense detection thresholds, and technology.

Part one is the combination of creatively applied law, and the setting of law enforcement thresholds such that almost anyone can be considered a suspect. As paranoia and fear increase, these thresholds fall to nearly zero; that is, almost anything that’s merely unusual is suspect.

Have you done anything unusual in recent weeks, that someone with incomplete information about your activities might misconstrue as suspect?

Certainly it could be said that simply traveling under certain conditions renders one suspect. Having someone else pay for your one-way ticket, for instance. Drive back into the U.S. from Montreal in the dead of winter, after two weeks away, and truthfully explain you’re a tourist; ICE will assume you’ve been enjoying mojitos on a Cuban beach in the interim, and on the basis of that assumption, go digging for supporting evidence.

Now that surveillance cameras are all over, your actions under certain circumstances – simply being in the wrong place at the wrong time – may also place you in the ‘suspect’ bin.

Money transfers of certain types and sizes clearly automatically render one suspect. It’s stunning to watch the obvious naivete’ of Jane Hamsher, who right off the bat asks about Spitzer, “Why would the bank tell the IRS and not Spitzer himself if there was a suspicious transfer?”

Dear Jane: Where the hell y’been lately? You live in a state where an enormous portion of the populace is now automatically suspect to some degree. They aren’t going to go call you up and explain to you how and why you are suspect. Instead they will, themselves, determine what they will do with that information. That’s how law enforcement tends to work, you know what I mean?

According to an article in USA Today, over seventeen million transactions were routinely reported to the Treasury Department in 2006. That is, of course, the number that the federal government was willing to disclose. I think we can safely assume that the actual number – including transactions reported by other means – would be significantly higher. The reporting system, like many features of the surveillance state, was initiated as part of the colossal justification for police-state measures that is today called the “War on Drugs.”

In Spitzer’s case, what was done with the information collected by that particular surveillance system is now history. They followed the trail to see where it went, starting with Spitzer’s wire transfer to a suspicious shell company. Federal prosecution of various people followed under various laws including the Mann Act – a law which I would assume Spitzer is quite familiar with, since I hear it’s a topic in first-year law courses. It takes the matter of prostitution, usually only of concern at the local and state level, and elevates it to the status of a federal offense, if state lines are crossed for the commission of prostitution.

I put this under the heading of “creatively applied law” since the little train trip “Kristen” made from New York to DC would easily fit inside many U.S. states. Cross an imaginary line or two on the ground, and a whole different cast of characters are now involved, along with a potential federal rap.

At the same time, there is Part Two: technology has made the collection of this kind of data economically feasible. The transition of financial transactions from paper to electronics – and the granting of access to those networks to government monitors – moves the collection of data from widely scattered caches to easily searchable databases and networks.

It’s kind of quaint to see the collection of digital cellphone calls still be called a “wiretap.” There is, of course, no “wire” and no “tap.” Not so many years ago, someone had to dig through a telephone central office, locate the subscriber’s pair of wires and do something special to enable recording by law enforcement – and all that effort was by necessity known to several people. Not today. Mobile networks have tapping capability built in. I would make an educated guess that someone with certain privileges in the system issues a few commands from a computer and sound files of phone calls start showing up in someone’s mailbox, or something equally simple. The knowledge of who is being tapped may now be closely held by a few people, eliminating the oversight of sorts that occurs when many people must be aware of such matters.

To contrast specifics of the Spitzer matter with past years, consider this: a wiretap on phone lines leading to the Governor’s office would be extraordinary, it would be noted by those involved, and each person with that knowledge increases the likelihood of a whistleblower or leaker. Today, it’s just another stream of bits in a huge system, with no physical point of interest. Machines sort through the electrical impulses and collect the bits of interest for later listening.

The great change in recent years is that the mass collection and storage of phone calls without the physical movement of wires and hardware has become practical. Vast databases enabled by cheap digital storage technology make the sifting through vast amounts of data of any kind, previously both impractical and prohibitively expensive, now a relatively trivial matter. There are still the costs of bureaucracy and hardware – but the advance of these technologies bring those costs down into the range that is now politically supportable and sustainable.

The disturbing truth about the Spitzer matter is that to some degree this is what the future looks like. There need not be any special motivation for such an action. Such things have simply become possible, if not trivially easy. The laws, often anachronistic, unenforced and unenforceable, are there. The motivation to make vast swaths of the American populace potential everyday suspects is there – that, in fact, is the ultimate product of the so-called “war on terror” and its predecessors. The ability to instantly locate and transfer records and recordings – formerly sifting through paper, and moving paper around by courier and mail – is now here.

I’ll turn the next question around, and ask it this way: is there any reason to expect that this combination, this surveillance state, will not be used for its intended purposes at each and every opportunity?

As I see it, the answer to that is clearly “no.” Each prosecution, or even public display of suspects later found innocent and forgotten, justifies the expense of building and maintaining the surveillance apparatus. There is no countervailing pressure to limit its reach, or its application. It will be the great equalizer, targeted on state governors, government officials as well as citizens of every stratum.

Even the enthusiastic supporters of surveillance – such as Spitzer himself – are not immune from its use. While some may claim that Spitzer was specifically targeted by Bush’s Justice Department, I think there’s a simpler explanation: the necessity of frequent, even sensational, public displays of the power of the surveillance system, to reinforce the idea that nobody can ever successfully hide. The take-down of a governor, through a clear display of both financial and telephone surveillance capability, further justifies the system by means of its success. Taking down an occasional crusader against prostitution who worked to further curtail civil liberties under the guise of “anti-terrorist” legislation – which, by the way, elevated mere money laundering to the category of “terrorism” – is just the occasional by-product of the existence of such a system. No one is somehow immune to getting caught in this web; although it’s possible Spitzer may yet avoid prosecution since he’s already served his purpose, his role in the display of capability to potential transgressors, the ultimate point of the exercise. This whole story becomes much like that shooting down of a satellite a few weeks ago, for no clearly obvious reason; display of the ability to puncture matters previously considered private, and not much more, is the objective, along with cluttering the Federal courts with another rather pedestrian prosecution of a prostitution ring.

What then, does the future look like? We are clearly at a point of transition, where the surveillance apparatus gains a foothold but the demonstration of its powers is not yet clearly understood. Beyond this transition are three paths.

There is the possibility of elimination – farfetched and nearly impossible, but I will throw it out there; there is always the possibility that enough people will view the surveillance state as such an obvious threat to those quaint notions of “freedom” and “democracy” that its capabilities, through mass action or defiance, will be dulled or eliminated. Of course, the possibility of this happening is near zero; that’s even clearer when such an obvious demonstration of what the consequences of the vacuum-cleanering of personal transactions is not even understood for what it is!

There is the possibility of, basically, bankruptcy – where the apparatus cannot be maintained due to financial crisis. As has been historically true in other attempts to create totalistic, surveillance states, I think it likely that these elements of the state will be maintained above all else.

The third path is perhaps the one with the outcome that is the least comprehensible today. Let us suppose that the knowledge that people are being watched in every detail, through demonstrations of capability such as this one, actually changes people’s behavior. “Crime,” as detected by the “system,” decreases. But this is not allowable. The system is self-justifying: it must produce a flow of suspects, investigations, charges and prosecutions, all announced by the system, repeated by the media, and picked up by politicians of all persuasions to support the continued expense, overhead, and corrosive but hard to describe side-effects of constant surveillance and its expectation that anything ‘unusual’ is suspect.

Thus the definition of “crime” as we know it today may shift, reflecting the fear of the ‘unexpected’ and ‘unusual.’ Minor transgressions are elevated to major infractions. The system adapts to take advantage of the technology that supposedly identifies suspicious individuals, and acts on those suspicions. Perhaps the act of simply being considered suspicious by someone else – wearing the wrong colors, being in the wrong place at the wrong hour, carrying a camera in certain places – become actionable crimes, driven by the need to use the surveillance apparatus to produce some kind of measurable result.

As for Eliot Spitzer, the individual, himself, and his circumstances, I’ll defer to Arthur Silber, who sums it up in this one meaty paragraph:

Prostitution involving consenting adults cannot defensibly be regarded as a crime. In that sense, Spitzer should never have been targeted at all for that alleged offense. But it is currently illegal, as all basically functioning adults are fully aware. [And whatever else might be said about him, Spitzer appears to be basically functioning. I'll be here all week.] Given Spitzer’s unfathomable stupidity — and in light of the fact that he is now the victim of the kinds of overreaching police state tactics that he himself has endlessly championed and utilized — this can only be regarded as an instance of an especially objectionable, arrogant, overweening, power-mad, vicious son of a bitch himself getting exactly what he has been delightedly happy to dish out to others.