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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Bin Laden's greatest legacy: the surveillance state
Osama Bin Laden's death comes several months after a wave of democratic uprisings in the Arab world. These two sets of events, considered together, remind us of the power of digital technologies. These technologies have reconfigured many different aspects of our lives, including both terrorism and democratic politics. They have also revolutionized government surveillance.
Digital technologies did not cause the Arab uprisings in late 2010 and early 2011. But they helped lower the costs of democratic protest and collective action. Digital technologies did not cause Al Qaeda or other forms of modern terrorism. But they helped terrorists create new types of organizations, and they helped radical and extremist propaganda to circulate throughout the world, gaining new adherents, and working to legitimate acts of terrorism.
Digital technology has also played an important role in government responses to both developments-- both surveillance by authoritarian regimes seeking to suppress democratic uprisings and surveillance by Western countries seeking to suppress Al Qaeda.
What digital technology does is create new opportunities on the one hand, and new forms of vulnerability on the other. It is up to different actors how they will take advantage of these opportunities and manage vulnerabilities.
I remain hopeful that, in the long run, digital technologies will help the forces of democracy and human liberty win out. But as the examples of Al Qaeda and surveillance of democratic movements show, the outcome is still very much in doubt.
Even if Al Qaeda is ultimately defeated, the fear of terrorism--and the political opportunity that the fear of terrorism presents-- have driven western governments, and especially the United States, to build ever larger surveillance states, justifying ever greater government expenditures and ever greater expansion of surveillance bureaucracies.
Currently there is an energetic debate over whether Bin Laden's capture and execution was facilitated by the Bush Administration's torture policies. This debate overlooks a far larger concern: how the hunt for Al Qaeda justified the government's permanent expansion of surveillance capabilities. President Obama ordered an end to the use of torture techniques as soon as he took office, but he has not ordered an end to the use of these surveillance capacities; indeed, he has expanded them. Government surveillance programs are only likely to grow over the years, and they are likely to affect many more people-- including American citizens-- for a much longer time than the Bush Administration's embrace of torture ever did.
The September 11th attacks did not cause the construction of the national surveillance state, but they spurred on its growth enormously. Indeed, the national surveillance state may be Osama Bin Laden's most powerful and lasting legacy; for even after he and all of his allies are gone, the surveillance state will affect how Americans live and how their government operates for decades to come. Bin Laden was not able to destroy us. But he might have been a precipitating cause in the destruction, or at least the limitation, of important freedoms. If it is true, as politicians repeatedly tell us, that Bin Laden hated us for our freedoms, that would be a terrible victory indeed.
All of this should give us pause. I think it is by now settled that America, like many other nations will build out a surveillance state. The question is what kind of state it will build out. Bin Laden's death will mean many things to many people. I suggest that it should offer us an strategic opportunity to stop for a moment, and to rethink our energetic dash to build out the most powerful and least constrained surveillance operations that government money can buy. That is because the challenge we face today is *not* to build the most effective surveillance state possible. It is to make effective surveillance and democracy live together. Posted
by JB [link]