Balkinization  

Thursday, June 15, 2006

The Public Private "Handshake" and the National Surveillance State

JB

This Washington Post article describes an important but relatively little noticed feature of the emerging national surveillance state. When people think of government surveillance, they often think of the government spying on them or collecting information about them. But the government need not do this directly. Instead of directly spying on American citizens and/or collecting information about them, the government can simply purchase large databases from private companies, who in turn purchase it from a host of other private companies. There is in fact a huge industry in private data collection with companies whose primary customer is the government; as the Washington Post article details, many of these public/private contracts are classified. The information is then collated by private contractors and presented to the government, which combines it and collates it with other information already in its possession and analyzes it further. Personal information by itself can be innocuous but when combined with other information about a person (and about other persons judged to be similar) it can help create a relatively rich profile of a person's activities, preferences and tendencies.

This form of public-private cooperation (or in many cases public purchase of information from private sources) allows the government to do an end-run around the Fourth Amendment's prohibitions on invasion of privacy. The reason is that the state is not doing the data collection; it is only purchasing information already collected and collating the results with other information it possesses. As the article explains, this information can be used for far more than protecting national security; it can be used for ordinary law enforcement, or even to find teenagers who would be most willing to join the military. Once the information is available to the government for purchase and collation, and absent privacy laws prohibiting its use, there is no particular reason for government not to use data mining for as many different policy purposes as possible. If the government thinks it would be useful to know the preferences, tastes, habits and tendencies of its citizens for any reason of governance, it will eventually attempt to find out and make use of the information if it can do so at reasonable cost, unless the law prevents it. And the digital revolution, of course, makes it increasingly possible (and relatively inexpensive) to do so.

These relationships between private data collection companies and the government have become a central albeit unacknowledged tool of governance in the emerging National Surveillance State. As with all governance, this tool can be used for good or for ill, used wisely in the public interest or abused. The Constitution as currently understood places few limits on this form of governance; the major protections will have to be statutory and administrative and technological. The key goal of such protections will not necessarily be to prevent data collection and collation, but to limit its uses, and to trace and keep tabs on how the information is flowing, how it is being used, who is using it for what purpose.

Put another way, when collection and collation become major techniques of governance, we will need methods of accountability for these practices. And that means that contracts and practices that are currently classified and kept out of the public eye will have to be subjected to some form of scrutiny and accountability, either by the public or by some independent agency. Otherwise the National Surveillance State, like all well meaning forms of governance, will swallow up our liberties in the name of serving the public interest and getting the job done.


Comments:

For those interested in a comprehensive and well-presented book on the inner workings of the large data houses and their relationship with government, read Robert O'Harrow's "No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society." It was required reading for a class I took with Eben Moglen (Computers, Privacy and the Law) and proved useful for analyzing several aspects of the Surveillance Society as it relates to the Constitution and privacy statutes.
 

The country needs to revisit its privacy laws. We have a dated, ineffective and quite incoherent hodgepodge of various regulations. Congress or the next administration should lead. This can be done, Europe has a very sensible modern system with strong protection of individual privacy.

Let's a look at it to see if anything can be learned from their experiences, improve on it, or start from scratch if too allergic to anything foreign, but let's do something. The problem of course is that the present situation suits the security agencies and corporate interest quite well so Congress won't be able to do anything on its own. Let's hope for more enlightened administration in 2008.
 

If the worst thing you can think of for the government to do with this information is to find young people who might want to join the military, it doesn't seem like that big a problem. A person would have to move in circles rather outside the American mainstream to think of that as a problem.
 

It's the same method the government has used for subjecting vast numbers of citizens to bodily searches for drugs. Since the government can't force everyone to pee in a jar to get a social security number, they make their contractors do it to their employees.

Then they can say the government isn't doing searches of persons without warrants the employers are.

Insidious.
 

The aspect of government data mining is that people have no recourse in the event of abuse. Doesn't such data mining, in the event of such abuse, amount to guilt by association? Wasn't that the part of the problem with McCarthyism? Abuse of information publicly available to indirectly incriminate people based on their habits, associations, and opinions? I'm certainly not a historian, but it seems to me that was a big part of the problem.

The thing about government public data mining is that if corporate marketers are targeting you, that's one thing. If the government targets you, that's another.
 

It is possible to envision a new Office of the Comptroller of the Information, as data mining has improved its drilldown capabilities since 1998. Among the reasons likely are the ease of acessibility of software for utilizing computers to scan large numbers of people and their behavior. Consider this article about how the plenary organization of medical doctors in the US came to adjust its privacy regulations which it uses to guide the degree of permissibility of data mining one small sphere of activity of doctors, the service of authorizing prescriptions. It was only when a doctor in CA realized sales representatives he barely knew were leading him with questions the belied their foreknowledge of his apothecary that led him to petition the AMA to revise its policies for selling its membership information to the data mining industry which supplies pharmaceutical manufacturers. To me the issue is not a bright line circumscribed by protections in the first and fourth amendments; rather, it is a nuanced zone of genuine professional activities which all deserve balance and fine tuning so they may coexist in harmony without inordinate infringement upon privacy rights. Although this parallel is drawn from the medical field, which in the US is far from being equatable to government, it is illustrative, nevertheless, of the new protections which may be deployed so as to benefit both data miner and data mined, as well as various researchers and interested parties, some possibly quite far afield from medicine and the privacy protectorate. It is only because the AMA is preponderant and ubiquitous that this solution was attained, and carefully deployed over three years, parts of which installation remain to be placed into effect.
 

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