God's Jury: The Inquisition and the Making of the Modern World (33 page)

In primitive states, procedures rarely have much longevity. In more advanced states, the organs of government grind on, often impervious to attempts at control. That characteristic marks even well-intended measures. Some years ago, in an issue of
The American Prospect
on the subject of “The Inquisitorial State,” the columnist Anthony Lewis described how the appointment of special prosecutors and independent counsels with open-ended mandates and deep pockets had led to a culture of obsessive investigation.
The rationalists of the Enlightenment conceived of government as a machine, something that had “levers” and “wheels” and “springs” and that, if properly built, could run with minimal intervention.
The problem, it turns out, is making it stop.

In the end, bureaucracies take on lives of their own. That is why, for a century, the Inquisition censors on the wharves of that harbor in Portugal dutifully checked every incoming ship for contraband books, and wrote up the prescribed reports, even though their searches turned up nothing. Observing the gradual transformation of “government into administration, of republics into bureaucracies,” Hannah Arendt commented, “Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.”

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In the late 1990s, the Federal Bureau of Investigation implemented a program that employed “packet sniffing” software to monitor certain e-mail and other communications. The effort was probably doomed the moment it became widely known that the software’s code name was Carnivore.
The National Security Agency, the U.S. intelligence arm chiefly responsible for tracking messages and data transmitted through the Internet, the telephone, and other electronic means, runs a similar program, commonly known as Echelon. Various lists circulating on the Internet purport to identify some of the thousands of keywords that trigger the NSA’s attention. They include some words you’d expect, such as “assassinate,” “cybercash,” and “smallpox,” and some you might not, such as “unclassified,” “nowhere,” and “Trump.”

In the aftermath of 9/11, efforts like Carnivore and Echelon were joined by Total Information Awareness. That program was formally dismantled, but similar initiatives survive under different names.
So do other kinds of monitoring. In 2007, Deputy Attorney General James B. Comey, testifying before the Senate Judiciary Committee, recounted an episode that had occurred three years earlier, when the White House sought to get authorization for a domestic surveillance program by the NSA that the Justice Department believed was illegal. The attorney general, John Ashcroft, was in intensive care after surgery, but the White House counsel and the White House chief of staff arrived unexpectedly at his bedside to obtain his signature. Comey had gotten there first, and Ashcroft refused to sign.
But surveillance of this sort continues.
The potential for “deep packet” inspection—drilling far down into electronic communications for sought-after information—is embedded in various kinds of computer software. The U.S. government insisted on having a point of access in case of need. Washington is not alone in this capability. Systems can be bought off the shelf, and companies will provide bespoke systems to seemingly any customer. The government of Iran has been eager to investigate the activities of political dissidents. In 2008, Iran set up a sophisticated inspection system with the help of Siemens and Nokia.

Advances in surveillance are rarely walked back. They become institutionalized, and then normalized, creating a new status quo and a platform for whatever the next steps might be. Jack Balkin, of Yale University Law School, has pointed out that powers granted by acts of Congress in the period after 9/11—the Authorization of the Use of Military Force of 2001, the Patriot Act of 2001, the Military Commissions Act of 2006, the Protect America Act of 2007, the 2008 amendments to the Foreign Intelligence Surveillance Act—have, taken together, “created a basic framework for the National Surveillance State,” which in turn could lead to “emergency government as a normal condition of politics.”
National-security cases aside, the number of state and federal requests for wiretap authorization keeps growing; it reached a record high of 3,194 in 2010, up by a third over the previous year. Of that number, a single request for authorization was denied by a judge.

Monitoring is not merely an act of policy. It is abetted by everyone, because it is built into the way we run our lives. A member of Germany’s Green Party recently made public a graphic display of his personal movements over a six-month period. It was based on longitude and latitude data that had been automatically tracked by his cell phone on 35,000 distinct occasions.
On the basis of the proximity of a user’s cell phone to the cell phones of other people, together with the user’s location and the duration of his conversations, and without listening in, service providers can analyze patterns of personal interaction—identifying your circle of friends, discerning when conversations touch on political topics, even predicting if you’re about to jump to a different phone company.
“Computer vision” systems are now employed in prisons, at shopping malls, in intensive care units; they can recognize faces, monitor expressions, assess behavior. They are used by Hollywood to test audience reactions. They are used by hospitals to remind employees to wash their hands. They can distinguish among emotions. A new Google app called Goggles allows users to photograph an object or scene and then search the Internet for matches. Google drew the line, for now, at facial recognition, but the capability exists.

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Censorship today occurs in many new ways, but the old ways are still very much alive. The expurgation of a work of history by Philipp Camerarius in the sixteenth century has an analogue in the revision of school textbooks by the Texas State Board of Education in the twenty-first. Under the new Texas guidelines, approved in 2010, textbooks must emphasize that the Founding Fathers were people of religious faith; must deemphasize the doctrine of separation of church and state; must assert that the Civil War was fought mainly over states’ rights, not slavery; must give ample consideration to the views of Confederate President Jefferson Davis; must downplay criticism of Senator Joseph McCarthy; and must include positive references to the Moral Majority, the Heritage Foundation, and the National Rifle Association. A proposal to rename the slave trade “the Atlantic triangular trade” did not pass, nor did a proposal that textbooks must use Barack Obama’s middle name, Hussein.

In the short term, do changes like these threaten the freedom of any university historian in Cambridge or Berkeley (or Austin)? Of course not. In our lifetime, no scholar will feel constrained to alter so much as a comma. No professor will be purged. But in the long term? The changes in Texas affect 5 million students a year in the state’s grammar schools and high schools. Additional changes will be implemented every decade, when the textbooks come up for review. Meanwhile, the Texas requirements will ripple outward: the Texas market is so large that publishers often turn local demands into national standards. Fifty years will pass, a century. The intellectual elite may remain free to say what it wishes. But what will have happened to popular opinion in the meantime? And what will that future elite have grown up knowing?

Examples of censorship like those above—campaigns against this book or that; campaigns to include one set of ideas and exclude another—are by now almost antiquated. They are sideshows. Corporations and the government may soon have the capacity to achieve similar ends in a more systematic way. In 2010, the investment-banking firm Goldman Sachs decreed that profanity was no longer to be used in e-mails sent by its employees, and backed up its policy by installing software to detect any breaches. In 2009, Amazon discovered that it did not have the rights to editions of Orwell’s
1984
and
Animal Farm
that readers had downloaded onto their Kindles. With the push of a button, Amazon was able to delete those books remotely from all Kindles worldwide.
No one questioned that Amazon needed to act—it was in breach of copyright. But many were surprised that it could make books simply disappear from people’s hands. The fact that the episode involved these particular novels was an irony lost on no one.

Much has been made of the role of Twitter, Facebook, and other social media in fostering democratic upheavals in Iran, Egypt, Tunisia, and elsewhere—as if the last barriers to the free flow of communication and information are inevitably destined to disappear. Cyber analysts are not so sure. Yes, it’s usually possible to get around so-called first-generation filtering—whereby governments attempt to erect firewalls at key Internet choke points in order to screen out whatever they deem undesirable. But “second-generation filtering”—whereby governments (or other entities) themselves attack sources of information in various ways—is another story.
A popular revolution overthrew the government of Hosni Mubarak, in Egypt, but the most important lesson from the episode may be that before it did so, the Egyptian authorities managed to shut down the entire Internet in the country with relative ease.
In Iran, whose Islamic government has also been a target of protests fueled by online social networks, the authorities used access to Twitter and Facebook to collect names and trace relationships.

The Internet has long had its utopian theorists. Its dystopian pessimists deserve attention. In his book
The Net Delusion,
Evgeny Morozov asks, “What if the liberating potential of the Internet also contains seeds of depoliticization and thus dedemocratization?”
Elsewhere he writes, “A Twitter revolution is only possible in a regime where the state apparatus is completely ignorant of the Internet and has no virtual presence of its own. However, most authoritarian states are now moving in the opposite direction, eagerly exploiting cyberspace for their own strategic purposes.”
In China, the government “harmonizes” Web sites that traffic in content it considers inappropriate—that is, it shuts them down.
In the United States, well-meaning measures to ensure the transparency of government operations have been bent to a different use. When a University of Wisconsin historian began commenting in a blog on statewide political matters, his opponents cited his status as a state employee and demanded, under the state’s open-records law, that he release all the private e-mails he had ever written from his university e-mail account containing words such as “Republican,” “union,” “collective bargaining,” “recall,” and “rally.”
Leverage can be exercised in other ways. Opinion varies widely on the merits of WikiLeaks, which in 2010 made public hundreds of thousands of classified U.S. government documents. The organization has not been charged with any crime, but soon after the first disclosures, and at the urging of a powerful senator, Amazon dropped WikiLeaks material from its servers. Separately, several major financial companies, including Visa, MasterCard, and PayPal, announced that they would no longer process contributions to WikiLeaks. The flow of information—and money—is subject to choke points, and it’s not always clear who controls the valves.

The organization Freedom House publishes an annual survey of freedom of expression worldwide. According to its 2010 survey, the world has seen eight consecutive years of setbacks. Severe controls of some sort on the press and on the Internet are more the rule than the exception; only one person in six lives in a country without them.
As a study published in the independent British publication
Index on Censorship
recently pointed out, “No longer is it easy to hide from slow-moving and inept bureaucracies in the vast pools of information flows.”
Wealthy Catholic families in Reformation England once kept “priest holes” in their manor houses to hide itinerant Jesuits. Priest holes on the Internet are not very secure.

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Americans pride themselves on being a nation with no established religion, where the state does not interfere in religious activities. And yet the level of hostility toward “the other”—or, in milder form, the level of nervousness and suspicion—is on the rise. It is not just a matter of religion, of course. Bill Bishop, in his book
The Big Sort,
describes how more and more Americans are choosing to live, work, and play almost exclusively with people “like themselves.” This is a natural tendency, but it diminishes exposure to any contrary outlook while elevating the primacy of one’s own. The Internet makes the pursuit of this sort of epistemic closure increasingly easy. Users of a search engine called SeekFind will be directed only to sites consistent with evangelical Christianity. Users of a site called I’mHalal will be directed only to sites consistent with Islam.

Religion remains a central front. In Texas in 2004, a plank in the Republican Party platform made an explicit reference to “the myth of the separation of church and state” and declared that “the United States of America is a Christian nation.”
An evangelical tone suffuses the modern American military, particularly the Army officer corps. In public life, the “Christian nation” theme is hard to miss. When President Obama made a state visit to Turkey in 2009, he told his audiences there: “We do not consider ourselves a Christian nation or a Jewish nation or a Muslim nation; we consider ourselves a nation of citizens who are bound by ideals and a set of values.” Angry rejoinders were instantaneous. Newt Gingrich, the former speaker of the House, called the president’s remarks “fundamentally misleading about the nature of America.” Fox News host Sean Hannity described the comments as “a disgrace.”
A year later, Sarah Palin professed bewilderment at “hearing any leader declare that America isn’t a Christian nation.”
At rallies, Palin calls on an army of “prayer warriors” to smite her foes, and she encourages the identification of herself with the biblical figure Esther.
In 2011, the governor-elect of Alabama, Robert Bentley, stated that he considered himself a “brother” to others only if “you’re a Christian, and if you’re saved, and if the Holy Spirit lives within you.”
Prominent ministers have laid the blame for 9/11 and Hurricane Katrina on homosexuality and secularism, and identified the cause of the 2010 earthquake in Haiti as a long-ago “pact with the devil.”