The National Surveillance State poses three major dangers for our freedoms.(125) 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.(126)
“There is no greater tyranny, than that which is perpetrated under the shield of law and in the name of justice.”
The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track.(127) 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.(128) 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?(129) If surveillance technologies signal that certain people are likely threats to public order, why not create a system of preventative detention outside the ordinary criminal justice system?(130) Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or use public facilities and transportation systems?(131) And if DNA analysis can identify people who will likely impose high costs on public resources, why not identify them in advance and exclude them from public programs and other opportunities?(132) The more powerful and effective our technologies of surveillance and analysis become, the more pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm.(133)
The third major threat to our freedoms according to Balkin is private power and the public- private cooperation.(134) Because the Constitution does not reach private parties, the U.S. government has increasing incentives to rely on private enterprise to collect and generate information for it.(135) 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.(136) 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.(137)
If we use Balkin’s three threats as our lens for looking at the current U.S. National Surveillance State we find some compelling insights. With the disclosure of the Verizon data collecting FISA warrant and documents detailing the NSA’s “Prism” program we see that the United States government has created a parallel rule of law that only the government knows about and is responsible for overseeing. In addition through the “Prism” program we see a significant collaboration between the private sector companies and government in capturing and collecting data on all foreign and domestic people. These two items alone cover Balkin’s first and third major threats in a significant way. The operational components of these systems, which Balkin lists as the second major threat because they reinforce the parallel non-transparent rule of law, are emblematic of even more troubling insights. The collection of multiple data sets from both public and private sources through dubious legal instruments means the U.S. Government National Surveillance apparatus has by operational capability a blanket warrant for anyone’s digital information, actions, sentiments, and beliefs anywhere in the world.
Since the National Surveillance State is a form of the Information State, let’s now look into the definitions that Jack Balkin provides for Democratic vs. Authoritarian Information states in the next two posts.