Part 1 – What is a National Surveillance State?

What is a National Surveillance State?

In the National Surveillance State, the government uses surveillance, data collection, collation, and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services.(14) The National Surveillance State is a special case of the Information State – a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.(15)

The war on terror may be the most familiar justification of the rise of the National Surveillance Sate, but it is hardly the sole or even the most important cause.(16) Government’s increasing use of surveillance and data mining is a predictable result of accelerating developments in information technology.(17) As technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and private parties will seek to use them.(18)

“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.” – Jack Balkin

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.(19) 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?(20)

The National Surveillance State is a way of governing. It is neither the product of emergency nor the product of war.(21) War and emergency are temporary conditions.(22) The National Surveillance State is a permanent feature of governance, and will become as ubiquitous in time as the familiar devices of the regulatory and welfare states.(23)

Government will use surveillance, data collection, and data mining technologies not only to keep Americans safe from terrorist attacks but also to prevent ordinary crime and deliver social services.(24) In fact, even today, providing basic social services – like welfare benefits – and protecting key rights – like rights against employment discrimination – are difficult, if not impossible, without the extensive data collection and analysis.(25) Moreover, much of the surveillance in a National Surveillance State will be conducted and analyzed by private parties.(26) The increased demand for – and the increased use of – public and private surveillance cannot be explained or justified solely in terms of war or emergency.(27)

The National Surveillance State grows naturally out of the Welfare State and the National Security State; it is their logical successor.(28) The Welfare State governs domestic affairs by spending and transferring money and creating government entitlements, licenses, and public works.(29) The National Security State promotes foreign policy through investments in defense industries and defense-related technologies, through creating and expanding national intelligence agencies like the Central Intelligence Agency (CIA) and National Security Agency (NSA), and through the placement of American Military forces and weapons systems around the globe to counter military threats and project national power.(30)

The Welfare State created a huge demand for data processing technologies to identify individuals – think about all the uses for your Social Security Number – and deliver social services like licenses, benefits, and pensions.(31) The National Security State created the need for effective intelligence collection and data analysis.(32) It funded the development of increasingly powerful technologies for surveillance, data collection, and data mining, not to mention increasingly powerful computer and telecommunications technologies.(33) American investments in defense technologies spurred the electronics industry, the computer industry, and eventually, the birth of the Internet itself.(34)

By the time the Internet went commercial in the mid-1990’s, the National Surveillance State was already well in gear.(35) Telecommunications, computing, data storage, and surveillance technologies have become ever more potent, while their costs have steadily declined.(36) It is unthinkable that governments would not seek to use these technologies to promote the public good; it is even more unthinkable that private parties would not try to harness them as well.(37) In fact, much, if not most surveillance and information collection these days are in private hands.(38) Corporations invest heavily in security and surveillance, especially to protect sensitive information in their computer networks.(39) Private security cameras still outnumber those operated by the government.(40) Many businesses make money from collecting, analyzing, and selling consumer data; in fact, governments increasingly purchase information from corporations instead of collecting it themselves.(41)

In the National Surveillance State, the line between public and private modes of surveillance and security has blurred if not completely vanished. Public and private enterprises are thoroughly intertwined.(42) The NSA program would be impossible without the assistance of telecommunications companies; the government now requires that new communications technologies be designed with back ends that facilitate government surveillance.(43) Federal programs also encourage linking private security cameras with comprehensive government systems like those planned in Manhattan.(44) Corporate data collectors and commercial data mining operations are a major source of information on individuals’ tastes, preferences, histories, and behaviors that governments can harness.(45) Government and businesses are increasingly partners in surveillance, data mining, and information analysis.(46) Moreover, the architecture of the Internet – and the many possible methods of attack – requires governments, corporations, and private parties to work together to protect network security and head off threats before they occur.(47)

Increased focus on surveillance and prevention becomes inevitable once digital information technologies become widely dispersed.(48) Criminal organizations and terrorist groups can use many of the same information and surveillance technologies that governments and legitimate business do.(49) Terrorist groups that lack fixed addresses can use new information technologies to communicate and plan assaults.(50) Hackers can attack networks from afar.(51) A new breed of criminals employs digital networks to commit old-fashioned crimes like embezzlement and to commit new crimes like identity theft and denial of service attacks (DOS).(52) Cyber attacks cannot only bring down financial institutions; they can also target the nation’s defense systems.(53) Digital technologies pose new problems for governments and create new opportunities for identifying threats and meeting them in advance.(54)

Older models of law enforcement have focused on apprehension and prosecution of wrongdoers after the fact and the threat of criminal or civil sanctions to deter future bad behavior.(55) The National Surveillance State supplements this model of prosecution and deterrence with technologies of prediction and prevention.(56) Computer security tries to identify potential weaknesses and block entry by suspicious persons before they have a chance to strike.(57) Private companies and government agencies use databases to develop profiles of individuals who are likely to violate laws, drive up costs, or cause problems, and then deflect them, block them, or deny them benefits, access, or opportunities.(58) The government’s “No Fly” and “Selectee” watch lists and its still-planned Secure Flight screening program collect information on passengers and create profiles that seek to block dangerous people from boarding planes.(59) 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 wrong doing.(60) Such tendencies have been around for at least a century, but new technologies for surveillance, data analysis, and regulation by computer code and physical architecture has made them far easier to put into effect.(61)

The National Surveillance State seeks any and all information that assists governance; electronic surveillance is not its only tools.(62) Governments can also get information out of human bodies, for example, through collection and analysis of DNA, through location tracking, and through facial recognition systems.(63) The Bush administration’s detention and interrogation practices sought to get information out of human bodies through old- fashioned detention and interrogation techniques, including techniques that are tantamount to torture.(64) 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.(65)

Decades ago Michel Foucault argued that modern societies had become increasingly focused on watching and measuring people in order to control them, to normalize their behavior and to make them docile and obedient.(66) His famous example was Jeremy Bentham’s idea of a Panopticon – a prison designed so that the prisoners could always be watched but would not know exactly when.(67) By making surveillance ubiquitous, governments and private organizations could discourage behavior they deemed unusual or abnormal.(68)

Today’s National Surveillance State goes beyond Foucault’s Panoptic model.(69) Government’s most important technique of control is no longer watching or threatening to watch.(70) It is analyzing and drawing connections between data.(71) Much public and private surveillance occurs without any knowledge that one is watched.(72) More to the point, data mining technologies allow the state and business enterprises to record perfectly innocent behavior that no one is particularly ashamed of and draw surprisingly powerful inferences about people’s behavior, beliefs, and attitudes.(73) Over time, these tools will only become more effective.(74) We leave traces of ourselves continually, including our location, our communications contacts, our consumption choices, and even our DNA.(75)

Data mining allows inferences not only about the direct subjects of surveillance, but about other people with whom they live, work, and communicate.(76) Instead of spying on a particular person, data about other persons combined with public facts about a person can allow governments and private businesses to draw increasingly powerful inferences about that person’s motives, desires, and behaviors.(77)

The problem today is not that fear of surveillance will lead people to docile conformity, but rather that even the most innocent and seemingly unimportant behaviors can increase knowledge about both ourselves and others.(78) Normal behavior does not merely acquiesce to the state’s power; it may actually amplify it, adding information to databases that makes inferences more powerful and effective.(79) Our behavior may tell things about us that we may not even know about ourselves.(80) In addition, knowledge about some people can generate knowledge about others who are not being directly watched.(81) Individuals can no longer protect themselves, for the government may no longer need to watch them to gain knowledge that can be used against them.(82)

Equally important, the rise of the National Surveillance State portends the death of amnesia.(83) In practice, much privacy protection depends on forgetting.(84) 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.(85) 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.(86) The collation and analysis of events allows public and private actors to create locational and temporal profiles of people, making it easier to trace and predict their behaviors.(87) Older surveillance cameras featured imprecise, grainy images, and the recordings were quickly taped over.(88) 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.(89) Ordinary citizens can no longer assume that what they do will be forgotten; rather, records will be stored and collated with other information collected at other times and places.(90) The greatest single protector of privacy – amnesia – will soon be a thing of the past.(91) As technology improves and storage costs decline, the National Surveillance State becomes the State that Never Forgets.(92)

Let’s now look at the United States and how its focus on Total Information Awareness(93) measures up against this reasonable and meaningful analytical framework for determining if a National Surveillance State is Democratic or Authoritarian. Before we do that, briefly, I want to explain two important legal instruments the U.S. Government have used in national security matters.