Balkin on the Constitution in the National Surveillance State

“The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have. Will we have a government without sufficient controls over public and private surveillance, or will we have a government that protects individual dignity and conforms both public and private surveillance to the rule of law?”

After reading Jane Meyer’s article in the New Yorker, “The Secret Sharer,” about Obama’s war on whistleblowers, I realized that I’m at a bit of a loss about what is to be done next.  In a sense we are lucky, because it took conservatives a few decades to realize that the the welfare state wasn’t going to be destroyed outright and they had to go to plan B.  People concerned about civil liberties now have learned, relatively right away, that electing someone who campaigned as an anti-Bush constitutional law professor wasn’t going to be sufficient to reign in the surveillance state.

With that in mind, I just read the short paper The Constitution in the National Surveillance State by liberal Yale law professor Jack M. Balkin. Balkin is quoted in the Meyer article and elsewhere, and has also written in the past that whoever was elected President in 2008 was just going to consolidated the expansions, not overturn them.

So I’m going to quote the paper at length, since I’m still reflecting on it (the quote at the beginning is from that paper).  What’s the problem with the Surveillance State?  My bold:

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 Bush administration’s military detention practices and its NSA surveillance program are two examples….

The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track. Once govern- ments 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 govern- ment services. If data mining can help us locate terrorists, why not use it to find deadbeat dads, or even people who have not paid their parking tickets?…

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. Corporate business models, in turn, lead companies to amass and analyze more and more information about people in order to target new customers and reject undesirable ones. 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 third reminds me of the various efforts at behavioral pricing the credit card companies have used over the years.  There was an FTC complaint (settled) that CompuCredit was changing terms on credit cards depending on where you made purchases, with one nice example being increasing your interest rate for paying for a marriage counselor with your credit card, as divorce is a risk factor for not paying your bills. That this flow of information could merge with the government should worry us.

If we can’t turn it off, what’s the solution?  Where do we want to go?

We might begin by distinguishing between an authoritarian information state and a democratic information state. Authoritarian information states are information gluttons and information misers. Like gluttons they grab as much information as possible because this helps maximize their power. Authori- tarian states are information misers because they try to keep the information they collect—and their own operations—secret from the public. They try to treat everything that might embarrass them or undermine their authority as state secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without having to account for what they do.

By contrast, democratic information states are information gourmets and information philanthropists. Like gourmets they collect and collate only the information they need to ensure efficient government and national security. They do not keep tabs on citizens without justifiable reasons; they create a regular system of checks and procedures to avoid abuse. They stop collecting information when it is no longer needed and they discard information at regular intervals to protect privacy.

As a last aside, here’s a clear and provocative way of making a point I think we’ve all thought in some form or another – the surveillance state and informational technology more generally have destroyed the privacy protection of amnesia.

Equally important, the rise of the National Surveillance State portends the death of amnesia. In practice, much privacy protection depends on forgetting. When people display unusual or embarrassing behavior, or participate in political protests in public places, their most effective protection may be that most people don’t know who they are and will soon forget who did what at a certain time and place. But cameras, facial recognition systems, and location tracking systems let governments and businesses compile continuous records of what happens at particular locations, which can be collated with records of different times and places. The collation and analysis of events al- lows public and private actors to create locational and temporal profiles of people, making it easier to trace and predict their behaviors. Older surveillance cameras featured imprecise, grainy images, and the recordings were quickly taped over. New digital systems offer ever greater fidelity and precision, and the declining cost of digital storage means that records of events can be maintained indefinitely and copied and distributed widely to other surveillance systems around the country or even around the globe. Ordinary citizens can no longer as- sume that what they do will be forgotten; rather, records will be stored and collated with other information collected at other times and places. The greatest single protector of privacy— amnesia—will soon be a thing of the past. As technology improves and storage costs decline, the National Surveillance State becomes the State that Never Forgets.

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7 Responses to Balkin on the Constitution in the National Surveillance State

  1. Sandi says:

    The third danger cited is problematic not just because of lack of Constitutional protection/restraints, but because privatization implies profit driven, and we’ve seen examples of where that leads. The case in Pennsylvania of the private juvenile detention center that had a local judge as a major shareholder, I believe, showed this judge sending kids to the center that should never have been in the system at all; he ruined lives because he could, and because he made money off it.

    • Ted K says:

      That was a pretty horrid story. I first heard of that Pennsylvania judge’s corrupt use of power on NPR (you know, that “evil government” media that Republicans have been trying to kill for decades now). I think we can see similar (or maybe worse) things happening with the foreclosure courts in Florida now. I think I put this link on Rortybomb before, but I will put it here again for easy reference. Ignore the huge headline and scroll down to the good stuff.
      I guess Katie Couric was too busy negotiating her daytime show contract and perfecting her giggle to notice these things or go through the horrid stress of an airplane ticket to Florida and stick a microphone in someone’s face. Couric is still basking in the glow of asking a VP contender the hard hitting question of which periodicals she currently reads.

  2. chris says:

    the Constitution does not reach private parties

    IANAL, but I believe this doesn’t apply when the “private” party is acting on behalf of the state. Judges are not, in fact, blind to the danger of the government circumventing the constitution by farming out the unconstitutional tasks to a contractor. (Some may choose to turn a blind eye to particular practices because of their ideological leanings, though, which is arguably just as bad.)

    The greatest single protector of privacy— amnesia—will soon be a thing of the past.

    IMO, the elimination of amnesia will result in more widespread recognition of the banality of folly. When all houses are glass, stone-throwing may become a less attractive hobby (except, perhaps, against the most gleefully hypocritical stone-throwers themselves).

  3. edb says:

    The pervasiveness of surveillance cameras, digital storage technology, and facial recognition software calls for a return to the use of masks. Wearing a mask is a low-tech, low-cost way of frustrating the surveillance state – and this tactic is as old as history. I predict the increasing use of face masks, and eventually laws forbidding the wearing of face masks in public places (so long Halloween). This will lead to a face mask war – increasingly clever and subtle face masks that don’t look like masks, yet frustrate facial recognition software and surveillance authorities. I predict the day will come when there is a large public protest where every protester will look like the then current head of the CIA.

    • Ted K says:

      I just got some face paint. I’m going as Geronimo, pre-whitecastration….

      That’s a joke people. I think this NSA whistleblower should not be punished. And I think overzealous digital surveillance is something Americans should be wary of…. but eh, let’s put it this way, some of you Alex Jones/Glenn Beck people need to do some breathing exercises and have a couple beers. There are enough legitimate things to be afraid of (and in fact you should have been more afraid when Dick Cheney was in office) that you don’t need to make-up cheesy melodrama to add to it.

      • prefixfree says:

        (and in fact you should have been more afraid when Dick Cheney was in office)

        It was scarier having Cheney in office than it is having Obama in office, yes.

        But what really ought to keep you up at night is that public opinion has moved closer to Cheney’s point of view on these issues since Obama took office.

  4. prefixfree says:

    Since Balkin wants to label governments as “authoritarian information states” or “democratic information states”, I’m curious–how do the actual government of the world line? Of western democracies, we have the most expensive surveillance state, no doubt. But are there any governments we would call “information gourmets and information philanthropists”? If we lose this fight here (and thus far the momentum is against us), is it possible that freedom lovers of other countries might win?

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