Balkin, Jack M., “The Constitution in the National Surveillance State” (2008). Faculty Scholarship Series. Paper 225.
This article discusses the specific case of the United States of America. However, in the summary, only the conceptual parts have been retained and the specificities have been dropped.
“The Information State is a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.”
The National Surveillance State (hereafeter NSS) is a “special case of the Information state which aims to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services”.
The existence of such a state is a reality. It is only a question of what sort that state will be — whether it will stand for individual dignity and the rule of law or against them.
This state grows naturally out of the Welfare State and the National Security State. The former governs domestic affairs and the latter, foreign policy. The former creates demand for data processing technologies for identification of persons and subsequent delivery of services. The latter also creates the need for intelligence collection and data analysis. Crucially, it funds the development of appropriate and requisite technologies for surveillance.
This state is now permanent. It collects data not just to prevent terrorist activities but to prevent ordinary crimes and also to provide welfare services. Private players play an important role too. The technologies available are mobilised by public agencies and private enterprises alike and they work in concert to make surveillance possible.
The emergence of digital technologies has created a new set of possibilities and challenges for the NSS. For one it enables governments to identify and head off threats in advance. However, it also leaves them vulnerable to attacks from anonymous hackers who can leverage the very same capabilities.
The major conceptual shift is visible in law enforcement. The old model of apprehension and prosecution is supplemented by prediction and prevention. This new form of enforcement which relies on massive, fast and reliable collection, storage and analysis of data could not have been possible without digital technologies.
Governance in the National Surveillance State is increasingly statistically oriented, ex ante and preventative, rather than focused on deterrence and ex post prosecution of individual wrongdoing.
Now, the NSS seeks and collects any and all information — electronic as well as biometric.
In the National Surveillance State, bodies are not simply objects of governance; they are rich sources of information that governments can mine through a multitude of different technologies and techniques.
Michel Foucault used Jeremy Bentham’s idea of the Panopticon — a prison where the prisoners could be constantly watched though they would not know exactly when — to drive home the point that modern societies are obsessed with watching and measuring people in order to control them.
The model of the Panopticon appears inadequate now. Today, it is not so much the watching as the processing of and drawing connections between data. It is the collection of information about innocent, normal behaviour and drawing powerful inferences from them. Also, a person no longer has to be under surveillance directly as surprising amounts of information can be obtained via the people she interacts with.
Much privacy depends on forgetting. But with the declining costs of storage, in the NSS, amnesia has pretty much become a thing of the past.
The National Surveillance State poses three major dangers for our freedom.
- Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.
- The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services.
- Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it. … As computing power increases and storage costs decline, companies will seek to know more and more about their customers and sell this valuable information to other companies and to the government.
The problem now is that of ensuring that the NSS does not trample on individual rights and constitutional government. We can begin by distinguishing between an authoritarian information states and a democratic information states. The former collect as much information as possible and keep that information secret — they are information gluttons and information misers. There is no accountability. The latter on the other hand collect and collate only the information required and are willing to share the information so collected with the public — they are information gourmets and information philanthropists.
As it stands today, the NSS behaves more like an authoritarian information state. Its activities (as well as those of allied private parties) in the interest of national security are largely exempt from scrutiny. Guaranteeing constitutional freedoms in has become an issue of urttent importance. Solutions can be legislative, administrative and technological.
Legislation should restrict the kinds of data governments may collect, collate, and use against people as well as institute government “amnesia”; create a code of conduct for private agencies that engage in data collection; and create oversight mechanisms for executive bureaucracies.
Legislative oversight of executive should be supplemented by judicial oversight through a system of “prior disclosure and explanation and subsequent regular reporting and minimization” as well as internal oversight within the executive by institutional structures — perhaps, a cadre of informational ombudsmen — that require the executive to police itself and make regular reports about its conduct.
Yet an independent judiciary plays an important role in making sure that zealous officials do not overreach. If the executive seeks greater efficiency, this requires a corresponding duty of greater disclosure before the fact and reporting after the fact to determine whether its surveillance programs are targeting the right people or are being abused.
Finally, technological oversight should be instituted by constructing surveillance architectures so that government surveillance is regularly recorded and available for audit by ombudsmen and executive branch inspectors.