A good constitution thus can cabin the damage that popular movements may do, while still permitting them to shake up complacent elites.
Joseph Schumpeter wrote that one cause of the demise of capitalism would be the steady conquest of the private by the public sphere. To judge by the most recent revelations about PRISM, that may be the demise of democracy too. For this is by far its most troubling aspect: not merely the snooping, from which most of us are probably exempt, but the coopting of the vast private space that once stood between individual and state, which means no one any longer is. The blurring of the border between state and society, not merely the loss of privacy itself, may prove to be PRISM’s most enduring legacy.
The Guardian’s most recent story, which reveals the extent of Microsoft’s participation in the program, suggests not the adversarial relationship of a company compelled by warrant to provide access to private information but rather the partnership of a private concern that worked with public authorities to design systems to make them hospitable to snooping. It is the partnership that should concern us as much as the snooping. (The Guardian reports, for example: “According to the NSA documents, work had begun on smoothly integrating Skype into Prism in November 2010, but it was not until 4 February 2011 that the company was served with a directive to comply signed by the attorney general.”)
Tocqueville reminds us of the decisive importance of civil society in American life: of the vast array of voluntary associations that provided both a buffer between individual and government and a mechanism of connection between individual and society. If the public sector assumed the functions of this civil space, he warned, the individual would stand exposed to the immense power of the state.
He did not have businesses per se in mind, but a similar narrative obtains. They form the latticework of the private sector that provides a clear separation between state and society. As employers, they fulfill what Bertrand de Jouvenel identified as the need for multiple relationships of dependency in free socieities. As service providers, especially of information and communication services, they provide havens of privacy, zones the state cannot reach, at least without warrants. A use of vague statutory authority and even vaguer orders from secret courts to coopt and intimidate this space risks all this. It leaves us without a clear distinction between which spaces of our society are public and which are private, which is to say which are fair game for compulsion and which are reserved for voluntary relationships.
The companies involved have responsibilities here. Retreating behind a fully adversarial relationship with the state is one of them. But ultimately what is necessary is for the state to return to its place, and that means the citizens, whose eager surrender of virtually every aspect of privacy makes PRISM a sadly smaller leap than is ordinarily supposed, must rise to theirs. That is a place of vigilance and, in this case, alarm.