Surveillance by agencies such as the NSA and FBI has serious consequences at a very deep level for democracy. Neil M. Richards (Washington University Law) exchanges views with Danielle Keats Citron (U. Maryland Law) and David Gray.
The link was suggested by a commenter on the Guardian boards, Sybil Sanderson, in comments to an interesting article stating that the NSA has confessed to searching out to three degrees of separation.
Why is surveillance bad? The instinct is to imagine that it instantly results in "an Orwellian dystopia." But there's a self-correcting feature to it: at some point, such societies collapse, bereft of the creativity and dynamism that open societies enjoy. For many decades, for example, the United States enjoyed the talents of scientists fleeing from authoritarian and totalitarian societies. Those societies were accordingly diminished.
Now Neil M. Richards (Washington University Law) has written "The Dangers of Surveillance," and this was responded to by Danielle Keats Citron and David Gray of the University of Maryland law school. The following represents my synopsis, including some editorializing for the purpose of clarification. I've also eliminated references to footnotes.
Richards defines two dangers:
1. Surveillance changes the ways that people study, interact, and even think. Debate needs to be open enough to surface ideas that are wrong or even dangerous, so that what is beneficial can be exposed. Therefore, the creativity necessary for a technologically progressive is stifled, and social stability is threatened as social problems may fester. Indeed, there may even be a threat to intellectual property rights, since surveillance is conducted by private actors with financial motives.
2. A government by blackmail is likely to emerge. In what I otherwise regarded as an undistinguished diary, Kossack Hamden Rice nevertheless presented a good description of how information was used to manipulate and control even the governing class. But even if abuse of surveillance is not carried to that extreme, the potential exists for "discrimination, coercion, and threat of selective prosecution."
Richards then proposes four principles to guide regulation of surveillance:
1. Public and private surveillance should be considered as halves of the same problem. This is especially germane since governmental surveillance is often done by private contractors.
2. Programs of secret surveillance should always be illegal.
3. Total surveillance (by which he presumably means surveillance lacking a specific warrant) should always be illegal.
4. Finally, surveillance is inherently harmful. Therefore, it can only be conducted to the extent that the harms are balanced by concrete benefits.
Richards defines surveillance as the systematic, routine, and purposeful attempt to learn information about individuals. The purpose is often to control the individual. Surveillance is comprehensive, conducted by both private companies and by the government. It invades telephone conversations, any Internet activity, social networking, and reading of electronic books. Our faces are tracked with visual recognition software. We are tracked by our GPS devices. The government gives away our information to private companies, such as when it gave license plate scans to insurance companies. We even consent to some forms of surveillance, in what Richards calls "liquid surveillance."
Our legal protections are few:
"American law governing surveillance is piecemeal, spanning constitutional protections such as the Fourth Amendment, statutes like the Electronic Communications Privacy Act of 1986 (ECPA), and private law rules such as the intrusion-into-seclusion tort. But the general principle under which American law operates is that surveillance is legal unless forbidden." (emphasis added)Indeed, even if there is an attempt to keep the results of surveillance secret, information leaks out. In former communist states, people are still being blackmailed or harmed by information from the files kept by the secret police. As reported in an interview of James Corbett on PressTV, it has even been alleged by NSA whistleblower Russell Tice that David Petraeus was driven from his job by information obtained from NSA intercepts. He also claims that the Supreme Court, the Congress, and even Barack Obama have been blackmailed by the NSA.
Courts have claimed that they have no power to protect us. Indeed, some figures, like Judge Posner think that surveillance is a good thing, since sifting by machine minimizes human involvement, thereby minimizing the risk of blackmail.
Democratic societies should prohibit the creation of any domestic surveillance programs whose existence is secret. In a democratic society, the people, and not the state apparatus, are sovereign. In American law, this tradition goes back to James Madison, and it lies at the very heart of both First Amendment theory and American constitutionalism itself.Citron and Gray add material about what happens when the lines between state and federal government dissolve, creating fusion centers and even worse monstrosities:
The illegitimacy of secret surveillance also lies at the heart of information-privacy law, which remains guided by the “Fair Information Practices” drafted by the U.S. Depa
rtment of Health, Education, and Welfare in 1973. The Code of Fair Information Practices recommended by the Department has continued to influence information-privacy law throughout the world...
How can plaintiffs prove injury if the government is not required to admit whether surveillance exists in the first place?
Democratic societies should also reject the idea that it is reasonable for the government to record all Internet and telephone activity with or without authorization....Like its precursor, telephone wiretapping, Internet surveillance must be subjected to meaningful judicial process before it is authorized. And such authorization must allow only discrete and limited forms of surveillance. Otherwise, there would be no constraint on the government’s ability to record and archive all electronic communications and read them at its leisure [and thereby retroactively criminalize an individual for dissenting].
In practice, this means that surveillance by government that seeks access to intellectual records should be subjected to a high threshold before a warrant can issue. A good model for this rule is Title I of the ECPA,which provides for a more stringent procedure under federal wiretapping law before a warrant may issue to intercept the contents of a telephone or electronic communication. The ECPA requires more than just the standard probable cause requirement that is the constitutional floor under Fourth Amendment law. In addition to probable cause, government agents seeking to tap a phone or electronic communication must also show three other elements:
(1) that the warrant is sought for a limited time [unlimited renewals should not be allowed],
(2) that the interception of the communication is necessary to obtain the information sought, and
(3) that the wiretapping will be conducted in such a way as to minimize the interception of information not relevant to the warrant.
For private-sector surveillance, additional statutory procedures are necessary to ensure that intellectual records are handled with greater care by the entities that hold them.
Consider Virtual Alabama. Google has built a customized database for Alabama's Department of Homeland Security that combines three-dimensional satellite/aerial imagery of the state with geospatial analytics that reveal relationships, trends, and patterns in incoming data. Virtual Alabama can "track moving objects, monitor sensors, and overlay near-real time data sets." Alabama will continue to add inputs,12 but the system already aggregates data from traffic cameras, real-time private and public video streams, GPS location data for police cruisers, building schematics, sex offenders' addresses, and land-ownership records. The state's 1500 public schools plan to link their video cameras into the system, providing live streaming 24 hours a day, 7 days a week. Virtual Alabama is also encouraging contributions from government agencies in exchange for access to the system.15 The stated goal of the program is to map all available data in the state.Citron and Gray point out that there's no clear line on what constitutes intellectual privacy. Is the fact that you call a telephone number repeatedly and no one picks up something that should be public information? If you post to video game boards, is that fair game for law enforcement? So they believe that the focus of legal protections should be on the extent of surveillance. In Virtual Alabama and fusion centers,
Virtual Alabama is part of a broader surveillance system sponsored by federal, state, and local governments and their private partners.
More unsettling still is the potential combination of surveillance technologies with neuroanalytics to reveal, predict, and manipulate instinctual behavioral patterns of which we are not even aware.
What is troubling about these technologies is not what information they gather, but rather the broad, indiscriminate, and continuous nature of the surveillance they facilitate.... Fusion centers rely upon data-broker dossiers....They cite Samuel Warren's and Louis Brandeis' article, "The Right to Privacy," which says that any device that records activity inhibits human development.
There's more, but I am out of time.
A key point that I would add is that what has changed in the last decade is the ability of the government to sift and store much, much larger amounts of data than they used to be able to do. This is creating dangers, such as retroactive criminalization of a person, that did not exist previously.