The Snowden leaks proved that individuals must take responsibility for their own privacy by revealing an inherent problem at the heart of constitutional government. By revealing the inner workings of the surveillance state, the leaks showed us governments don’t obey constitutions or laws, per se. Like the rest of us mere mortals, state actors obey incentives. The FISA Act shows that Congress defers heavily to state power and seems mostly unconcerned with privacy rights. This helped to create a culture of apathy for privacy protection within the secretive administration of spying programs as well. One former FISA judge even said the FISA Court “has turned into something like an administrative agency,” rather than a proper court.
Given public ignorance, there seems to have been little incentive for legislators to keep a close eye on the NSA or develop a thorough understanding of the technology it employed. Where incentives are weak, government agents are unlikely to restrain their own behavior. And incentives for government actors to self-restrain are especially absent in the cloak-and-dagger world of “national security.” With incentives lacking, “going dark” and denying the state access to encrypted data seems the only reasonable protection.
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