Balkinization: Beyond Intelligence Legalism

Beyond Intelligence Legalism

Frank Pasquale

Last year, Margo Schlanger, the former Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security, published an important critique of "intelligence legalism," which she defines as "imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers." For Schlanger, such legalism "gives systematically insufficient weight to individual liberty."

In "Infiltrate the NSA," Schlanger takes the argument further, making it clear that there must be personnel with civil libertarian values throughout security agencies, and not just in "Offices of Goodness" charged with vague or weak oversight powers. She proposes that:

Congress and the President should ... [amplify] voices inside the surveillance state who will give attention in internal deliberations and agency operations to civil liberties and privacy interests. If civil liberties and privacy officials inside the NSA, at the White House, and at the FISA court can walk the tightrope of maintaining both influence and commitment, they might well make a difference—both in debates we now know about and others that remain secret.

I agree with this approach. It is critical to complement privacy-by-design as a technological commitment, with institutional guarantors of such values. Administrative, physical, and technical safeguards are critical.

We also need to build in institutional planning simply to understand the scope of surveillance. As of 2010, there were "1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States." That is one reason I made the following proposal in my book The Black Box Society:

Consider the development of the Human Genome Project— a program of research about as sensitive and ambitious, with as much potential for good and ill, as the Human Security Project now consuming so much of the federal budget. Key agencies funding the exploration of the genome have devoted three to five percent of that research budget to examining the “ethical, legal, and scientific” implications of their work. That funding helps us anticipate (and, ideally, preempt) misuses of genetic data, and identify better uses of it.

The Human Genome Project is, at its core, an effort to discover “what makes us tick”: the fundamental biological blueprints for how human development unfolds. What we need to face up to is that pervasive surveillance, unifi ed into massive databases by powerful corporate and government actors, is an effort to fi nd out “what makes us tick” on a societal level. As genetics research may someday spare us from terrible diseases, constant tracking of communications and information could help prevent enormous losses of life.

But when our security apparatus begins to obsess over harmless political groups, or focus undue attention on disfavored religious or ethnic groups, it evokes the Promethean allure of genetic engineering, or even the horrors of eugenics. Bioethicists studying the Human Genome Project have helped scientists identify overreaching, and develop nuanced responses to ethically complex knowledge acquisition. It’s time to empower ethicists, attorneys, and technical experts to identify troubling directions of our security state, and to devise policies to curb them.

Of course, some might argue that allocating funding from the security apparatus to those studying it will create the danger of coopted academics. Safeguards to assure independence will be critical. But better understanding of the black box of national security intelligence gathering--and its myriad private contractors' operations--is critical.

Posted 12:04 PM by Frank Pasquale [link]