Surveillance and the Rule of Law

In my last post, I sought to establish that it is not, after all, that much for our government to say that it has some sort of particularized suspicion before conducting surveillance.  I used 1984 to establish that, unless it wants to engage in random, mindless terror like Stalin, every government, no matter how totalitarian, will have to have some sort of particularized suspicion to conduct intensive surveillance simply because surveillance is so labor intensive, and the secret police are necessarily a limited resource.  I next turn to The Lives of Others to address why it matters (1) whether the surveillance is done under law and (2) whether the laws involved are just and respectful of liberty.  Specifically, I want to address why these are two separate issues, and why the rule of law is important, regardless of whether the laws in question are just.

But first for a brief glance at the need for particularized suspicion.  Even though East Germany has the largest secret police relative to population and the most intensive surveillance of its population of any country ever, it still required some sort of particularized suspicion to actually bug a target’s house and listen to all the conversations taking place.  Watching the movie makes clear why.  In this case, the target was Georg Dreyman, the country’s (fictional) most distinguished playwright.  His household consists of himself and his wife, Christa-Maria.  (Either they had no children, or their children had all grown up and moved out).   The Stasi agents sit in a quiet room, listening to what was happening and taking notes.  They are not required to transcribe the entire conversation, but do have to note the general gist of it.  They listen in shifts.  When the main character obtains permission to do all the listening by himself, he is making an extraordinary request.  And, in fact, it would never have been granted lest someone do exactly what he did – protect his targets by not giving an accurate report.  The watchers were watched at all times.   The ratio of secret police to population was 166 to one, the highest of any totalitarian country in modern times.  But even at such a ratio, manpower limitations would necessarily have limited how many people they could subject to such intense scrutiny.  No one agent could possibly have listened in on 166 people and transcribed all their conversations.  The real Stasi had full-time officers posted to every factory.  It had an agent in every apartment, noting every overnight guest.  Schools, universities, and hospitals were infiltrated from top to bottom.  It also tapped 100,000 telephone lines in West Germany and had 2,000 full-time agents listening in.*  They filmed hotel and apartment rooms with secret video cameras, through tiny holes in the walls.  Dissident Ursula Poppe learned to recognized the men who tracked her and saw the bug in her ceiling.  When she later saw her Stasi files, she learned that video cameras were installed in the apartment across the street, her friends' bedrooms were bugged, her mail was opened, and her classmates investigated.  But surveillance this intensive could only be conducted on a minority of the population due to manpower limitations, so some sort of particularized suspicion would be required.

As for the matter of law, East Germany, as portrayed in The Lives of Others is an odd sort of hybrid dictatorship.  It is not completely lawless, like the dictatorships of Stalin or Hitler, but neither could it be described as truly operating under the rule of law, however, unjust and oppressive.  Rather, it is somewhere in between – a regime that only acts lawlessly when it is not worried about getting caught.  Because surveillance is done in secret and not exposed to any sort of scrutiny, it is done lawlessly.  By contrast, arrests, trials and punishments are public events and must be done according to law.  The laws are unjust and oppressive, but even unjust and oppressive law provides some degree of protection.

The story begins with the Minister of Culture ordering Stasi to bug the house of East Germany’s greatest playwright.  He has always been a loyal Communist before, but he has a lot of dissident friends, so the Minister of Culture says he has his suspicions.  The agent in charge never questions the decision.  But it turns out that really the Minister is sleeping with the playwright’s wife (she had to go along or he could ruin her career as an actress) and looking for some dirt to ruin his rival so he could have her all his own.  When the agent in charge of the surveillance finds out, he begins for the first time to question what he is doing,  A critic complains:

In this way, the horror that was inscribed into the very structure of the East German system is relegated to a mere personal whim. What’s lost is that the system would be no less terrifying without the minister’s personal corruption, even if it were run by only dedicated and “honest” bureaucrats.

But to make such a complaint is to miss the whole point.  Any system in which the secret police (or anyone else) operates in the dark with no sort of accountability will necessarily be riddled with corruption.  It is the nature of unaccountable and lawless power to be abused.  And how difficult is it to imagine that some rigid, unthinking, bureaucratic functionary who never thought to question the system might nonetheless be appalled corrupt misuse of the system and gradually come to recognize that corruption is inherent in it.  Or suppose there had been a secret FISA-like court (or any sort of court) that had to approve requests to bug a house to ensure that the surveillance complied with the law.  The laws would be unjust and oppressive.  Merely being a critic of the regime would be grounds enough for such an order.  But “I’m sleeping with his wife and want information to destroy a romantic rival” would not cut it, and the mere thought of having to explain such a thing would have been sufficient to shame even the most shameless official.**

That being said, the law in question is an extremely unjust and oppressive.  When the playwright’s best friend commits suicide, the playwright and some surviving friends resolve to publish an article in West Germany about East Germany’s high suicide rate.  The government has been concealing the statistics lest they make it look bad.  To expose this information is a crime.  In order to keep anyone from publishing unapproved information, all typewriters are registered, so that any unauthorized publication can be traced to the typewriter it was written on.  To escape this restriction, the playwright and his friends obtain an illegal, unregistered typewriter, write the article, and smuggle it into West Germany.  The East Germans have an agent on the other end, who is not able to stop the publication, but does show them the typeface.  Obviously, a ban on exposing embarrassing but true information is a very unjust and oppressive law, here we see why even a very unjust and oppressive law is better than no law.  Yes, it is monstrous that exposing embarrassing facts is a crime.  But the officials don’t go seizing anyone at random who might be even remotely implicated; they have to trace the typewriter to the actual offender.  To  publicly and formally enter the playwrights house to look for the typewriter, they still have to get a warrant with probable cause and look for a specific thing.  Furthermore, the agent has hidden the typewriter, so when the police are unable to find it, they have to let the playwright go because they have no proof.  Under a truly lawless regime like Stalin's, he would not have been so lucky.***  

So what does this mean for us?  Well, for one thing, it means I am unwilling to give our government too much credit for only conducting in-depth surveillance if they had particular suspicion.  That is a constraint imposed by sheer manpower limitations that even the Stasi could not escape.  Second, having it take place within a framework of laws, even very bad laws,  and requiring a warrant, even from a rubber stamp court, is better than having the whole thing take place outside the law altogether.  (See COINTELPRO as an example of what can happen in our own country).  Bringing it within a system of laws ensures that, although the NSA’s surveillance is unjust and oppressive, at least it will not be applied corruptly.  But finally, the law is much too broad, and is being stretched even further.  Reforms are needed.

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*This is a ratio of one agent per 50 phone lines. Presumably it was doable because phone lines are only in use a minority of the time.

*Naturally, the Culture Minister did not reveal his true motivation to Stasi.  But how many Stasi personnel have arranged personal surveillance for equally corrupt and self-serving reasons?
***And quite possibly, if the suspect had not been a world-renowned playwright, things would have gone differently.  Nonetheless, even an unjust and oppressive law offered some degree of protection.