You have something to hide

You’ve committed felonies.

Perhaps as many as three per day.

No one is innocent:

If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law.

Faced with the evidence of an non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment. Evidence and discretion, however, are precisely the point. Today, no one is innocent and thus our freedom is maintained only by the high cost of evidence and the prosecutor’s discretion.

This relates to a couple things in the news. One of course is NSA surveillance, which dramatically lowers the cost of evidence against you. Also relevant is a very recent SCOTUS decision, Salinas v. Texas, that you no longer have the right to remain silent.

You may have been taught as a child to follow the rules and everything would be OK. If you had a relatively privileged upbringing and reasonable parents and teachers, maybe that was mostly the case.

But clearly you can’t do that. It’s impossible to know all the rules. If you did, you’d know it’s impossible to follow all the rules.

That’s why matters of surveillance and evidence aren’t just important for the people think of as “criminals”. You, unfortunately, are one of the criminals. You just haven’t been caught yet.

Some have observed that the NSA is collecting roughly what Facebook or Google do. And they ask, what’s the difference?

One principled answer is that people consent to information collection by a company. In theory, they exchange this data for the consideration of using the service for free. The consent may not be deeply-informed, but it exists. With a company, there’s a choice. With the government, there isn’t.¹

A practical answer is that Facebook and Google cannot legally use the information to confiscate and/or confine. If they did, it would be a form of blackmail and/or kidnapping. Whereas in the case of government it’s not “blackmail”, it’s “prosecutorial discretion”.

And that’s if you’re relatively lucky enough to have a prosecutor — to have specific charges filed in public. Even if the charges are inflated and multiplied (the reason why it’s convenient for everyone to be guilty of multiple felonies), at least you get an opportunity to negotiate a deal or have your day in court. That is still a pretty horrible situation to be in, but like life in general, it’s better than the alternative.

Postscript

• I am not a lawyer.

• I have not been charged with a felony. This blog post is the result of reading and reflecting.

• I want to thank everyone who reviewed pre-publication drafts of this post, including the fine, hard-working, dedicated members of intelligence services everywhere.