I was in Amsterdam when the Snowden story broke. CNN was non-stop asking politicians and pundits, “Is Edward Snowden a traitor?” Those who said he betrayed America also said something else: Mass surveillance is only an issue if you’re a criminal. If you’ve got nothing to hide then you’ve got nothing to fear.
The Snowden story hit me upon my return from – of all places on earth – the Secret Annex of the Anne Frank House. The Secret Annex is where Anne Frank and her family hid from the Nazis for two years. It was during this period of hiding in terror that Anne wrote her world-famous diary. In it she confided, “I want to be useful or bring enjoyment to all people, even those I’ve never met.”
The “Anne Frank House” — then and now
I say I was lucky because the cosmic unlikeliness of my Secret Annex visit coinciding with Snowden’s mass surveillance revelations led to some revelations of my own. My understanding of law, criminality, and mass surveillance coalesced into a horrifying picture.
It turns out we’re all criminals in a mass surveillance world. The only question is whether we’ll get caught. Let me explain.
What Makes a Criminal?
Merriam-Webster defines crime as “activity that is against the law.” Law is defined as a “set of rules made by the government.” Thus a criminal is someone who breaks government rules.
The law as a whole is an ever-expanding collection of rules that politicians (“lawmakers”) decree and occasionally repeal. Laws are as moral as the politicians who make them.
Simply put, laws are the rules politicians make up, and criminals are people who break them.
It floored me to realize: Anne Frank was, in fact, a criminal. She was a fugitive of the law.
We can express outrage at the designation since Anne did nothing wrong. And we can debate which rules of any particular regime are tolerable or repugnant. But our opinions don’t change the fact that “criminal” is a government-defined standard imposed on us, the governed.
A law-abiding citizen was obligated to turn Anne into the police. To assist her was a crime. In America the Fugitive Slave Law obligated law-abiding citizens to turn in runaway slaves, and assisting them was punishable by 6 months in jail and a $28,000 fine (in today’s dollars).
In early colonial America masturbation, blasphemy, and homosexuality werecrimes punishable by death. Virtually any act you can think of has been criminalized by one regime or another. Being a law-abiding citizen only means you comply with whatever rules politicians have imposed on you.
Throughout history we observe only a slight overlap between the endless supply of laws governments impose on people and the handful of acts we all agree are morally wrong: theft, assault, rape, murder.
The American Crime Complex
To understand why we’re criminals requires a basic overview of how law is created and enforced.
Every law hatches a new crime with an associated punishment. A law is both an order and a threat, for if a law carries no threat of punishment, it’s not a law. It’s a suggestion. Politicians mince words by using different labels for their rules – laws, regulations, statutes, bills, acts, ordinances, et cetera – but they all fundamentally mean the same thing: Obey or be punished.
The Supreme Court ruled in 1978 that it’s legal for prosecutors to threaten you with catastrophic punishment – even life imprisonment – for a minor crime if you don’t forfeit your right to a jury trial. (In the landmark caseprosecutors secured a life sentence for forging an $88 check because the defendant refused a plea bargain.)
Because prosecutors wield such enormous power, almost everyone takes a plea bargain. Getting your day in court is a myth perpetuated in TV shows and movies. Innocent people often agree to plead guilty and suffer the punishment rather than risk having their lives destroyed. The system isrigged against you, and your chance of conviction at trial is around 90%.
This government prosecutor explains to new prosecutors that the goal of jury selection is to pick people who “are as unfair and more likely to convict than anybody else in that room.”