an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Three concepts of surveillance in the National Surveillance State
In this article with Sandy Levinson and on the pagesofthisblog I've been arguing that the United States is gradually moving from a National Security State to a National Surveillance State, which uses new information technologies and both public action and private cooperation to govern through the collection, collation, and analysis of information obtained through a wide variety of surveillance practices. The question is now whether we will have such a state, but what kind of state it will be, and whether it adequately protects personal freedoms and civic equality. It is important to recognize that the National Surveillance State is not just a project of the national government, but also state and local governments, who will use tools of surveillance for many different purposes. It also involves surveillance by private actors, including most notably businesses, who will use surveillance to identify potential customers, provide goods and services, and sell information both to other private entities and to the government. In this way the National Surveillance State promises to offer much more technologically sophisticated and pervasive forms of surveillance than we saw in its predecessor, the National Security State. This in itself is not cause for despair, but it does suggest that we need to rethink how to protect valuable liberties in this changing environment of public governance and private business.
To this end, I want to distinguish between three different kinds of surveillance that will be increasingly important in the National Surveillance State, which I call democratic or participatory surveillance, distributed surveillance, and metasurveillance.
Democratic surveillance is the notion that we put tools of surveillance and control over surveillance in the hands of as many citizens as possible, which allows them not only to watch each other but to watch government officials who may be misbehaving. Think of people with camera phones recording police arrests, or perhaps more troublingly, people with camera phones recording other people's private behavior. Democratic surveillance means democratic control over surveillance through democratic participation in surveillance.
Distributed surveillance means that tools of surveillance are distributed widely, in many locations, operations, applications and situations. For example, placing video cameras on every public street and in every public park, with continuous feeds sent back to central locations, combined with cameras in most private establishments, is distributed surveillance. Sending out hidden spyware that reports back on what people who download a program or a piece of e-mail are doing is also distributed surveillance. Distributed surveillance can be at national or local levels, and engaged in by public or private entities.
Distributed surveillance is not the same thing as democratic surveillance because a wide range of citizens do not have to participate in such surveillance in order for the tools of surveillance to be widely distributed. For example, if a software company puts surveillance tools in a widely distributed form of e-mail program, so that each e-mail message sent using the program reports back on its recipient, this is distributed but not democratic surveillance. Indeed, it tends to concentrate control over surveillance rather than democratize it.
Metasurveillance is surveilling the act of surveillance or information gathering. Essentially, it is the idea of designing a system of surveillance that "watches the watchers," or more generally, "watches the information gatherers." Mandatory recording of whom the NSA is listening to, when it is listening, and for what purpose is surveillance of surveillance. Reporting requirements that require businesses to account for what sorts of data they are collecting and their practices of discarding information is metasurveillance. Recording police and CIA interrogations is also metasurveilance, although in this case surveillance of information gathering.
Democratic or participatory surveillance may be quite important in securing civil liberties in some circumstances, but it has a darker side that we should not ignore. A world where everyone can track what everyone else is doing may prevent some abuses, particularly by government officials, but it may create the opportunities for still others.
Distributed surveillance is also two sided: it has both good and bad uses. However as the example of spyware suggests, its harmful uses are particularly obvious. That is why strategies of public accountability for distributed surveillance are particularly important.
Metasurveillance, or techniques for "watching the watchers," may be the single most important method of securing civil liberties in the emerging National Surveillance State. It is not the same thing, however, as democratic surveillance, because not everyone need participate in it. Moreover, in order for metasurveillance to be effective, it is not necessary that the recordings of what police and intelligence agencies do be widely available to the public as long as they are made available to ombudsmen or other trusted agents who have the power to hold agents accountable and take other corrective actions. (Note as well that metasurveillance may make use of distributed surveillance techniques to watch those who engage in surveillance. Again, these techniques do not have to be widely used by or available to the public to operate effectively.)
For example, much of the work of designing metasurveillance for the national government will probably have to take place within the executive branch, as opposed to relying on Congressional oversight. Systems of surveillance have grown so complicated that congressional oversight by individual Senators and Representatives (and their staffs) is often easily gotten around. Instead, Congress's most important job in designing the terms of the emerging National Surveillance State will be to require that the executive design systems of metasurveillance and create trusted agents and ombudsman within the executive branch to check its overreaching. Posted
by JB [link]
Your sober metasurveillance strategy makes eminent sense in an era where the government is gaining powerful tools of surveillance requiring oversight, but where these tools are too critical to national security to throw away in prophylactic measures like the old FISA.
I look forward to seeing you flesh out this theory in the future.
I don't like the term "democratic surveillance". When I think of democracy, I think of majority rule. The surveillance you describe is not something the majority has decided to do, it's something each individual can decide to do by him/herself. I'd call it "libertarian surveillance" because I like to poke at libertarians. "Social surveillance" might also be better. Or perhaps "Scarlet Letter surveillance" to remind us of the good old days when Puritans scrutinized their neighbors' every act.
I would also like to add that, genocide is increasingly becoming a part of our civic life. But this is not a cause for despair! Rather, I would like to posit three forms of genocide-- democratic genocide, distributed genocide, and metagenocide.
The best place to look at the surveillance scenarios are in the realm of science fiction; authors there have been looking at these issues for decades and imagining the forms that each of these types of surveillance societies would take.
One potential example of the democratic surveillance society can be found in the novel "Earth" by David Brin; all public interactions are recorded, posted, and reviewed, and keeping matters (personal, corporate, or governmental) secret is forbidden (except for a limited amount of time, under certain scenarios).
Distributed surveillance is very common, especially in classic cyberpunk novels. Reading some William Gibson novels can give you an idea of how well that works out for the common citizen.
Metasurveillance is present in "Earth", above, but I found a more recent example the recent trilogy by Kim Stanley Robinson, "Forty Signs of Rain", "Fifty Degrees Below", and "Sixty Days and Counting".
... Warrants, after all, have been our traditional form of metasurveillance ...
My sense is "surveillance" is used here in its most common vernacular meaning - watch, bug, spy on, etc., not its secondary meaning, oversight.
In any case there is little chance those involved in official survailance (NHS, DHS, JTTFs, police, security outfits of all kinds, FedEx and mail delivery people, etc.) will be willing to tolerate surveillance of them however well or civically intentioned.
For example police operate in this country without any effective oversight as is, the chance that will tolerate anybody doing any surveillance of them, democratic, meta or otherwise, is close to zero. Attempts are usually met with harassment, beatings, taserings, etc. Arrests are not unheard of.
Same applies to everybody else.
Beside how do you watch, bug, spy on DHS, NSA, FBI the three biggest federal level surveillance agencies out there? The are sitting behind massive security screens impermeable to anybody bar US Congress.
Realistically the best bet for those concerned about the emerging surveillance state is to concentrate on getting Congress to do their part first and to encourage and support responsible whistle-blowing by the insiders. This will likely be far more productive than any vigilante, unauthorized activity.
Here is a surveillance related story that needs far more exposure than it's getting. In particular read the part on "Suitability Matrix" some flattop in the Department of Homeland Security invented for determining whether anyone can keep or obtain a federal employment (Caltech NASA scientists in this case).
This is far better than any surveillance as you are required now to fork over everything private or not to the feds if you want to work for them. East German Stasis never had that easy I tell you!
-- Looks like DHS is all most paranoiacs thought it would become plus some, I'm afraid.
One potential example of the democratic surveillance society can be found in the novel "Earth" by David Brin
Heinlein uses a similar concept in Stranger in a Strange Land by introducing professional "Fair Witnesses" whose job is to recite accurately any event they perceive. There are also ubiquitous computers to play back events.
For a vision of a near future in which these surveillance issues are a central feature, see Vernor Vinge's recent novel, "Rainbow's End".
Vinge has in another work made tangential reference to the fact that "ubiquitous law enforcement" is one of the ways that societies fail, and that universal surveillance is one of the enablers of "ubiquitous law enforcement."
Let us not forget that surveillance is the essential tool needed to exploit terrorism. It is the essential tool to conduct organized crime. Without surveillance, the Bush administration might not have had John Yoo in place at the right time. Without surveillance, the AT&T headquarters would not have been moved from New York to Texas. By following the economic winners during the Bush regime, we can see who had an illegal surveillance apparatus and who did not. Crime pays. I have seen what they did -- they took the best and brightest and stole their proprietary business plans and intellectual property and organized massive obstruction and fraud to steal business from the law-abiding for the benefit of the Bush mafia. This was systematic and ruthless. Was it a bigger crime than the Nazis looting Europe and persecuting minorities? In many respects, it was.
I think the references to sci fi here are great -- showing how law is such a multi-curricular discipline. Star Trek, btw, seems to me to have seriously missed the boat on this thing. Luckily, there is more complex sci fi out there.
The comment that often judges will have little power here is true enough, though they still have an important one (whistleblowers can blow the whistle, but often it depends on what the law is, even if it is only enforced by self-controls), underlines the complexity of a constitutional system.
Constitutional norms are enforced in any number of ways, often interlocking in many ways as well.
Apparently Mr. Balkin wants to become the apologist for the reign of tyranny he sees as the unavoidable future. 2300 years ago Aristotle pointed out that tyrants cloak their own actions in secrecy and destroy the privacy of their subjects by spying on them. The succeeding centuries have proven the wisdom of his observation. No technological changes, no external threats, and no internal dangers change that. The National Surveillance State means the end of democracy and civil liberties. To believe otherwise is to engage in foolish self-delusion.