The Crossdresser and The King

J. Edgar Hoover, who was smashing gender norms before it was cool, had his panties in a bunch about Martin Luther King Jr. MLK had a suspicious proclivity to exercise his First Amendment rights, which, if allowed to spread, might undermine the Republic by forcing it to live up to its ideals.

So Hoover did what Americans expect an FBI chief to do: He drove a Ford spied on a United States citizen:

Under the FBI’s domestic counterintelligence program (COINTELPRO) King was subjected to various kinds of FBI surveillance that produced alleged evidence of extramarital affairs, though no evidence of Communist influence.

What kinds of surveillance? Well, for starters, how about this:

Hoover deployed agents to find subversive material on King, and Robert Kennedy authorized wiretaps on King’s home and Southern Christian Leadership Conference (SCLC) offices in October 1963.

(Readers of a Certain Age may only remember Bobby Kennedy as a Sainted Martyr. But he was also Brother Jack’s attack dog as attorney general, and before that, a rabid anti-Communist working for Joe McCarthy. History is fun!)

But Hoover didn’t limit the FBI to eavesdropping on MLK’s phone calls. One of the most notorious examples of FBI spying concerned what Americans consider the very definition of privacy:

the FBI anonymously sent King a compromising tape recording of him carousing in a Washington, D.C., hotel room, along with an anonymous letter that SCLC staff interpreted as encouraging King to commit suicide to avoid public embarrassment.

These events are not buried in our deep historical past, ripe for a languorous Ken Burns documentary. They happened within living memory, which we define for present purposes as “after Madonna was born”.

Nor was this a case of low-level Bad Apples defying the commands of their superiors. The government’s spying was actively pursued by the Director of the Federal Bureau of Investigation, with the enthusiastic endorsement of the United States Attorney General.

And speaking of Bad Apples — this segue brought to you by Record Scratch! — J. Edgar’s latest successor took the opportunity of a much more recent event to explain his philosophy of investigation to a Congressional committee a few weeks back.

You’re familiar with The Case of the Terrorist iPhone. Bad People With Guns were not stopped by Good People With Guns, and instead of, y’know, removing guns from the equation like we learned in ninth-grade algebra, Our Nation’s Besuited Crimefighters want to know what’s inside the Infernal Gadget, which stands athwart the case like a Kubrick Monolith.

Or, more prosaically: The FBI wants Apple to write some special software that will help them pick the phone’s lock.

We’ll set aside the All Writs Act for now, since FBI Director James Comey has done us the service of getting to the heart of the matter:

“From the founding of this country it was contemplated that law enforcement could go into your house with appropriate predication and oversight. So to me the logic of that means they wouldn’t have imagined any box or storage area that couldn’t be entered,” said Comey.

Comey envisions a Schoolhouse Rock world where “appropriate predication and oversight” would of course protect Americans from an inappropriate use of government power. But 1960 baby Comey passes the Madonna Test, so he was around not only when Schoolhouse Rock first aired, but when the same network would report FBI misdeeds later that night.

You remember the Church Committee? Of course not. Nobody does. We’ve tossed it down the Seventies Memory Hole, like flare jeans and wide lapels and whatever Henry Kissinger did that Hillary forgot about.

Besides, of course we have better legal supervision now, in part because of how the Church Committee spilled the beans on the NSA and FBI programs like COINTELPRO. Like that secret court that won’t let you talk about what the government is telling you to do. Progress!

But that’s all old news. The eyebrow-raising part of Comey’s statement is that in our Land of the Free and Home of the Brave, the Government has the right — nay, the duty — to access every detail of your life, like an unscrambled cable box.

Call it a Panopticon. Call it the Eye of Sauron. Heck, let’s just call it Big Brother, since that’s really what we’re talking about here.

And that’s what Frank Church was talking about in 1975:

We must know, at the same time, that [intelligence] capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything — telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.

These were considered Shocking! Revelations! forty years ago. And the information Church describes is but a floppy disk compared to what’s available today.

Furthermore, while Church was talking about Ma Bell and Western Union, his underlying point speaks directly to Comey’s insistence about government access to digital information today:

If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.

This isn’t a hypothetical scenario. The Founders went to great lengths to hide their messages from the lawfully established government they were aggressively subverting. And they passed a few amendments to keep their new government from inheriting the power of the old. Comey’s argument that the Founders wanted unhindered government access to all possible information doesn’t match the spirit or the letter of the Constitution.

But what it comes down to this: People in power will inevitably abuse the tools available to them, from the FBI director who stalked MLK to the Denver cop who stalked a woman by getting her phone number from a police database. And our ultimate protection against such Very Unreasonable Searches is not a rubber-stamp court, but not making that information accessible in the first place.

Meaning, in today’s age: Strong encryption. The kind that offers better protection than calling your porn folder “Favorite Desserts”.

Yes, this means Bad Guys will be able to hide their tracks as well as Good Guys — which they will anyway, since apps can enable their own encryption as well as the phone itself.

But it also means that the First, Fourth, and Fifth Amendments will continue to serve as the Founders intended: A citizen’s rights against the enormous powers of that citizen’s government.