On Thursday the Department of Justice issued a new policy requiring that “stingray” surveillance devices, portable fake cell phone towers that pinpoint the locations of all cell phones in the vicinity with cell phone signals, cannot be used by federal law enforcement officers without a warrant. The FBI will need to get a warrant to use a stingray to track someone down via their cell phone – or they could not and just appeal to the undefined “exceptional circumstances” loophole in the policy. Meanwhile state police forces still do not need a warrant (with the exception of a few proactive states such as Washington). And because it is merely a policy and not a law the policy could be quietly changed back to the FBI not needing warrants for such use of stingrays.
What is telling is that civil libertarians are remarking that this is a victory for privacy rights just because the government is acknowledging that stingrays exist. Law enforcement was so intent on keeping the use of stingrays secret, to prevent the attention that would bring regulations and reforms, that federal agencies (mainly the FBI) providing stingrays to local police departments required them to sign non-disclosure agreements to acquire them, with the result that prosecutors were obligated to dismiss a case rather than bring it to trial if it meant that the use of stingrays had to be revealed. More common was using stingrays to solve a case but then using a different and reconstructed set of facts at trial. Florida’s agreement reads, “The Florida Department of Law Enforcement will, at the request of the FBI, seek dismissal of the case in lieu of providing, or allowing others to use or provide, any information concerning the Harris Corporation [stingray maker] wireless collection equipment/technology, its associated software, operating manuals, and any related documentation.” These agreements also required local police forces to inform the FBI when FOIA requests were made regarding such surveillance capabilities, and this is from the agreements, “in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels”.
It is worth dwelling on the point that law enforcement would rather forfeit a case against a person caught up by a surveillance apparatus than potentially forfeit their use of that surveillance apparatus. One might explain this as an utilitarian calculus – ‘we can arrest more persons in the long run if we let this person get off now’. This is a tempting explanation because it supposes that policy is rational and forward-looking, a comforting notion. Yet to accept this explanation is to turn away from the true irrationality of our system in the relation of power and empire.
The surveillance state as we know it today was created through the opportunities given by the 9/11 terrorist attacks, put into place by the neocons of the Bush administration, Cheney, Rumsfeld and Rove. The historian Greg Grandin argues in the just published Kissinger’s Shadow: The Long Reach of America’s Most Controversial Statesmen, that far from being a “realist” as commonly supposed, Kissinger was deeply influenced by German idealists and the French existentialist Sartre, subscribing to a wildly relativistic and constructivist normativity where power is constitutive of powered acts. Meaning is created through action. Existence precedes essence, as Sartre would put it in his “Existentialism is a Humanism”. Kissinger had said in 1963, “there are two kinds of realists: those who manipulate facts and those who create them. The West requires nothing so much as men able to create their own reality”. An anonymous Bush crony widely believed to be Rove said in 2004, “we’re an empire now, and when we act, we create our own reality”.
Kissinger is the architect of the neocon worldview, and his prolific writing laying out this worldview provides insight into the implementation of the modern mass-surveillance state, being spawned by that outlook. Kissinger posited that America must seek “power for power’s sake. He had built his own perpetual motion machine; the purpose of American power was to create an awareness of American purpose” (Grandin, page 29). Kissinger’s implementation of such power was exemplified abroad, in the expansion of the American empire under the auspices of containing communism. The remarkable feat of the American state has been the widely known pursuit of empire and to in fact bank on this pursuit of empire while simultaneously shielding the residents of the fifty states from the complete realization that they live under imperial rule by a power elite, and the incompatibility of such a system of politics with a legitimate democratic order. The power elite depends for their power hold that this fact be both unknown and known – unknown so that the people will not rise up against the Washington and Wall Street ruling class, and known so that they will fear the power of the state in putting down such a revolution should it arise. The philosopher Sheldon Wolin notes the origins of such policy in the writings of Thomas Hobbes, a thinker openly admired by neocons. Sheldon writes of Hobbes’ Leviathan, “instead of being fearful only of foreign enemies, the citizenry, having observed the effects of extraordinary power used against foreigners, would become conditioned to fear its own sovereign, to hesitate before voicing criticism” (Wolin, Democracy Inc. page 76).
The mass surveillance state is a further honing of this technique. The Patriot Act was passed to make it easier for law enforcement to conduct surveillance on terrorists, but the American populace both knew and did not know that they would be the targets of surveillance as well. Americans are to subconsciously know that they are being monitored and tracked by the government but they are not to consciously know how invasive the government is of their privacy. This latter goal is accomplished by keeping secret the means of surveillance – including stingrays.