There is something terribly ominous about this "Carnivore" of the U.S. Intelligence establishment. There is something terribly threatening about governments' drift to dominance over every facet of our daily lives... in our homes, in our business and in or personal affairs.
A short time ago, it was brought to public attention that a building was being built in the Washington D.C. to "house intelligence surveillance equipment and operations." The provisions for funds for this building were "off the budget," or unpublished. That is to say, the U.S. Government was building one of the largest buildings in the world and one of the most expensive in secrecy.... information being hidden from the public. There was no estimate in the reports as to how much the hardware, software and other equipment would cost!
The FBI's notorious Internet traffic sniffer Carnivore includes a handy, idiot-proof GUI interface enabling nosey Feds to capture and examine a broad range of what passes through, from headers alone to full-bore content retrieval, which is pictured in the Justice Department's final assessment from the IIT Research Institute and the Illinois Institute of Technology Chicago-Kent College of Law (IITRI).
The 'IP addresses' field conveniently accepts settings for particular IPs or IP ranges; and the 'protocols' field accepts settings enabling Feds to choose among TCP (transmission control protocol), UDP (user datagram protocol) and ICMP (Internet control message protocol) retrieval, each one separately configurable for 'full retrieval', 'pen mode' (headers only) and 'off'.
Another option enables Fed-defined text-string inputs to be searched (e.g., say an e-mail contains the string, "blow up the President's motorcade"). It is not clear whether there is a lockout to prevent text-string scanning when the device is running in pen mode.
Particular ports for SMTP (simple mail transfer protocol), POP (post office protocol), HTTP (hyper-text transfer protocol) and FTP (file transfer protocol), can also be chosen freely with the interface, as can port ranges. The machine accommodates both DHCP (dynamic host configuration protocol) and RADIUS (remote authentication dial-in user service) connections, though one assumes from the layout that the Feds need to know which they're dealing with ahead of time.
The actual Carnivore box as installed at an ISP lacks a monitor and a keyboard, which one hopes might discourage bored administrators from mucking about with it. The data it captures, and its configuration, are dealt with off-site by an FBI geek operating a control machine linked to the bare-bones box via a (hopefully secure) telephone link.
Privacy questions remain
As for the chief privacy concern, that Carnivore can easily be misused by overzealous Feds examining more data than their court orders permit, the IITRI report offers little in the way of reassurance. Basically, we have to trust the Feds not to abuse it.
With that sticky issue in mind, the report goes to pains to emphasize the way responsibility is divided among 'case agents' who try to get the thing installed, and the geeks who actually operate it.
"Case agents establish the need and justification for the surveillance. A separate team of technically trained agents installs the equipment and configures it to restrict collection to that allowed by the court order," the report notes.
"In the case of Carnivore, all installations have been performed by the same small team. Case agents are motivated to solve or prevent crimes, but technically trained agents are motivated by FBI policy and procedures to ensure that collection adheres strictly to court orders and will be admissible in court as evidence."
In other words, the Bureau's geeks are going to provide the primary fail-safe against abuse, motivated by their natural civic piety and concerns that the collection of excess information would jeopardise a prosecution. "Potential criminal prosecution of agents involved in over-collection provide further....controls protecting against misusing Carnivore," the report states, but notes that "the statutory suppression remedy available for illegal interception of other communications in Title III is not expended to electronic communications."
So if the Feds were to over-collect using Carnivore, and use what they learned in the course of a prosecution, the data gathered would not automatically be thrown out as tainted evidence.
Another serious deficiency in Carnivore's privacy protection is the lack of any auditing mechanism for supervisors to check up on the actions of field agents. "Carnivore operators are anonymous to the system," the report says. "All users are logged in as 'administrator' and no audit trail of actions is maintained."
So this gives the Feds total deniability in cases where over-collection might be proven. Not only is the over-collected data useful as evidence against the victim, there is no way to determine who in the FBI is guilty of violating his rights. Where no one can be identified as the culprit, the so-called remedies of civil or criminal action are pure window-dressing and entirely moot. Very slick, and not at all nice.
Occasionally throughout the 20th century, commentators have clearly recognized the coercive nature of government. British political scientist Harold Laski wrote in 1935:
"At any critical moment in the history of a State the fact that its authority depends upon the power to coerce the opponents of the government, to break their wills, to compel them to submission, emerges as the central fact of its nature. "
Political scientist Theodore Lowi, author of the 1969 book The End of Liberalism, observed:
"Government is obviously the most efficacious way of achieving good purposes in our age. But alas, it is efficacious because it is involuntary. Modern policymakers ... pretend ... that the unsentimental business of coercion need not be involved and that the unsentimental decisions about how to employ coercion need not really be made at all."
As a 1940 federal court decision noted, "The 'State,' as used in political science, means the coercive force of government."
What matters is not the rhetoric in the speeches of politicians but rather the power in the hands of prosecutors and law-enforcement agents. Governments rest upon the statute book. The essence of a law is the threat of government force to compel obedience to a legislative or regulatory edict. The Supreme Court observed in a 1909 decision, "'Law' is a statement of circumstances in which public force will be brought to bear on men through the courts." A 1996 Justice Department report observed, "The feature distinguishing police from all other groups in society is their authority to apply coercive force...."
The first question is not whether government is good or evil, but whether government is coercive - whether government relies on force to fill its coffers, enforce its commands, and impose its will. To get a clear understanding of the pervasive use and threat of force in daily government actions is the first step towards political realism.
Few issues make the nature of the state clearer than taxation. The average American worked until May 10 in 1998 simply to pay his taxes, according to the Tax Foundation. The average family with two earners paid nearly as much in taxes in 1998 as their total nominal earnings in 1980. Taxation permeates the lives of modern Americans. Taxes account, on average, for 31 percent of the price of a loaf of bread, 30 percent of the price of a hotel room, and 43 percent of the price of a bottle of beer.
Taxation, the citizen, and the state
Taxation is not a mere technicality to be relegated to the footnotes of political science and public administration. Taxation goes to the heart of the relation of the citizen to the state: the higher the taxation, the greater the subjugation - and the more politicians are preempting individuals from building their own lives. Every increase in taxation is a proclamation that government knows best and thus that politicians are entitled to commandeer more of the individual's paycheck and to save him from himself.
The Treasury Department defines a tax as "a compulsory payment for which no specific benefit is received in return." No matter how much in taxes a person pays or what politicians promise, the taxpayer is not irrevocably entitled to a single benefit from government. The fact that some people benefit from how their tax dollars are spent does not make the process of taxation any less coercive.
Laws are structured so that government agents rarely need to soil their hands with citizens' blood. For instance, IRS rules and regulations allow IRS agents to confiscate a citizen's bank account without a court order and without any proof of the citizen's wrongdoing, merely on the basis of the IRS agent's unsubstantiated allegation that the citizen owes taxes.
This power is exercised more than three million times a year (six times more often than in 1979); and the IRS wrongfully seizes tens of thousands of bank accounts and paychecks each year, according to the General Accounting Office. Such seizures are often accomplished by an IRS agent's sending an official notice to a bank and some timid bank clerk's kowtowing to the government's demand. The IRS routinely does not even officially notify citizens when it confiscates their savings and checking accounts; the only "notice" a person deserves, according to the IRS, is a notation on his monthly bank records informing him of his loss.
Regulations and force
Government regulations are not mere expressions of codified benevolence. To regulate means to use or threaten force to subordinate private behavior to governmental commands. For instance, in New York City, building owners face a gauntlet of potential penalties. As author Jim Powell noted in the Wall Street Journal, owners face fines of up to $1,000 for illegally watering a lawn or flushing a sidewalk; up to $5,000 for failure to post a floor-numbering sign; up to $1,000 and a year in jail for recklessly or purposely failing to post a waste-collection sign; up to $1,000 for failure to post a sign about employee benefits; and up to $10,000 for failure to post a sign informing employees that the employer has no legal right to require them to take a lie-detector test. The hundreds of potential penalties turn government housing inspectors into petty czars, since almost every building will be in violation of at least one of the edicts.
The District of Columbia government, after the heaviest snows in 70 years in the winter of 1996, failed to plow many residential streets. Yet, although the government claimed it could not afford to clear its own roads of snow, it launched its Solid Waste Education and Enforcement Program (SWEEP) - hiring 25 new inspectors to search for private homes and businesses with unraked leaves or other violations of city regulations. Many residents received $25 tickets for not raking leaves in the two-foot area between the sidewalk and the street in front of their residences.
The Washington Post noted, "Some residents said the District is 'fixated' on the public space between the sidewalk and the curb while the streets are filled with potholes and trash." Some angry residents declared that they would not pay the fines. But the Post reported that Leslie Hotaling, a high-ranking official in the D.C. Public Works Department, "said it would be unwise for residents not to pay the fines because the city could put liens on their properties." Thus, because of a few unraked leaves and a refusal to kowtow, a person could lose the title to his house. (At the same time the city government was cracking down on leaf hooligans, it had accumulated more than 2,000 unsolved murders on its books from the previous decade - equal to almost one-half of 1 percent of the city population.)
Some politicians openly brag about the power that zoning regulations give them. In Chicago in August 1996, just before the Democratic National Convention opened, city inspectors arm-twisted many businesses near the convention site into erecting fancy black wrought-iron fences around their sites, even though city regulations did not require such lavish decorations.
The targeted area was on the dilapidated side, and many business owners saw no reason to spend thousands of extra dollars. Peg Kane, who owns a truck-leasing firm, said the government's action cost her $8,500 and that "they didn't need to come in here like the Gestapo." Mayor Richard Daley Jr. told the Chicago Tribune: "I've been hard all over the city. I kicked butt, in other words.... I asked them to put up instead of a wire fence a wrought-iron fence. That's for me, the mayor."
The Montgomery County, Maryland, government sought to soften its image in 1995 by dropping the word "government" from the county seal, from government workers' business cards, and even from the sides of county government automobiles. County executive Douglas Duncan justified the change by saying that the word government was "arrogant" and "off-putting" and "didn't present the image of public service." Duncan concluded that the word government sent the message: "We're in charge, and you'll do whatever we say." A memo to county government department heads explained that the word government was being removed because it "still screams 'bureaucracy' to many of our citizens."
But at the same time that it pretended not to be a government, Montgomery County continued its coercive efforts to micromanage the lives of local residents. These efforts included rigid racial quotas on schools (which prevented the transfer of half-Asian children from assigned schools) and development restrictions that were intended to concentrate new businesses in a narrow corridor already strangled with traffic jams (to preserve "open space" elsewhere in the county). Duncan admitted in a speech to a chamber of commerce that dealing with the county government was a "bureaucratic nightmare."
Politicians often talk of how they wish to benefit, protect, or help the citizenry. But the tools of the state are limited. The state can impose new prohibitions and restrictions, create new penalties, or impose taxes in order to finance benefits.
It is misleading to conceive of politicians offering both carrots and sticks: Government must first use a stick to commandeer the money to pay for the carrot.
Every increase in the size of government means an increase in coercion - either an increase in the amount of a person's paycheck that government seizes or an increase in the number of types of behavior for which a government can jail, imprison, or fine a citizen.
Every increase in government spending means an increase in political power - and a new pretext to seize private paychecks.
Coercion is the essence of government in the same way that profit is the essence of private businesses. In the same way that businesses occasionally finance social projects in order to polish their public image, government occasionally engages in noncoercive activities. But, for both institutions, these are sideshows.
Mr. Bovard is the author of Freedom in Chains: The Rise of the State & the Demise of the Citizen (St. Martin's Press, 1999).