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
Legal scholars will not be surprised by the day's revelations, just as few surveillance experts were all that shocked by the breadth and depth of PRISM, PINWALE, MARINA, and other programs. Ray Ku called warrantless surveillance unconstitutional in 2010. Civil liberties groups and legal scholars warned us repeatedly about where Bush-era executive power theories would lead. As anyone familiar with Bruce Ackerman's work might guess, pliable attorneys have rubber-stamped the telephony metadata program with a "white paper" that "fails to confront counterarguments and address contrary caselaw" and "cites cases that [are] relatively weak authority for its position." There are no meaningful penalties in sight (perhaps because the OLC has prepared documents that function as a "get out of jail free" card for those involved).
Like the data mining they employ, the NSA surveillance programs are hard to govern democratically (or cabin legally) because of the speed, scale, and secrecy of the problems they address. They fall into "black holes" of administrative review, where the inclination of judges to review them is at lowest ebb. Even if judges find "ticking time bomb" scenarios unlikely in the extreme, the surveillance apparatus can evoke plenty of other existential risks to demand deference. If you were on the FISA court and the NSA told you that they needed to collect everyone's data because they were trying to track down a swarm of poison-bearing microdrones, how long would you delay them to "dig into the substance" before approving the request? As Desmond Manderson has argued, "Trust Us Justice" is the order of the day.
Nevertheless, the long-term danger of an unaccountable surveillance state is probably much greater than that posed by any particular terror threat.* Both Julie Cohen and Neil Richards have explained the many dangers arising out of pervasive surveillance. As Richards observes,
[The] special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.
To make this more concrete: note that the US's intelligence apparatus has already extensively monitored libertarians and peace activists. According to the Partnership for Civil Justice Fund, "from its inception, the FBI treated the Occupy movement as a potential criminal and terrorist threat." During Occupy Wall Street, investigative journalists uncovered command centers advised by federal and local officials and banks. Skeptics wondered whether banks’ lucrative “private detail pay” and donations for police helped motivate multiple, brutal crackdowns on peaceful (if unorthodox) protesters. Homeland security officials may have advised local police on containment of the hundreds of “Occupy” encampments that arose in the fall of 2011. And in terms of selective enforcement: one has to wonder why police decided to care about a six-year-old open container violation at the homes of activists one day before May Day protests.
For a concrete example of how an activist deals with this type of news, consider the story of one Daytona woman:
[She] is a 45-year-old married mother of two young children. She is a homeowner, a taxpayer and a safe driver. She votes in every election. She attends a Unitarian Universalist church on Sundays. She is also, like nearly all who have a relationship with the Occupy movement in the United States, being monitored by the federal government. . . . McLeish worries about how being a target of FBI attention will affect her life. “Can the inclusion of my name and information on a federal law enforcement domestic terrorist watch list impact my ability to make a living and provide for my children?” she asked.
This is not a purely speculative concern, however much the SCOTUS majority in Clapper v. Amnesty may dismiss such worries as the fruit of a "chain of contingencies." FBI screens are used to deny persons jobs, now. Many applicants have no idea they are even part of the hiring process:
Updating the records of those who fall through the cracks can be confusing and cumbersome. FBI regulations say that employers and licensing agencies should give applicants time to challenge and correct their records, either by contacting the FBI or the jurisdiction that collected the data. But applicants are not always given a copy of their report or told why they were disqualified. Often, the burden is on them to prove an error was made.
Even if the databases don't include those who are not arrested, what stops law enforcement agencies from including "suspects" in related databases? Employers may not want to have anything to do with someone "under watch" by the government. Moreover, even being arrested can be a form of speech: consider the Moral Monday protesters in North Carolina.
Speculative No More
In his press conference last week, President Obama stated, “If you look at the reports, even the disclosures that Mr. Snowden's put forward, all the stories that have been written, what you're not reading about is the government actually abusing these programs and, you know, listening in on people's phone calls or inappropriately reading people's e-mails.” In Clapper v. Amnesty Int'l, Justice Alito trivialized the plaintiffs' concerns as mere conjecture. Surveillance promoters on both left and right argue that privacy activists haven't demonstrated any concrete harms. The former NSA director has dismissed those concerned as "nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven't talked to the opposite sex in five or six years."
Implications of paranoia (among those worried about surveillance) now themselves appear fantastical. The Supreme Court's bizarre decision in Clapper v. Amnesty International, that respondents' claims about being monitored were "too speculative" to merit judicial review, now deserves not merely rebuke, but reconsideration. Unless the surveillance apparatus wants to claim that Greenwald, the ACLU, EPIC, and PCJF are making up documents out of whole cloth, it has to acknowledge that not only have laws been violated, but exactly the types of harms those laws were designed to stop have indeed occurred. This is not just a matter of legalist punctilio or nihilist skepticism.
Tragically, the core surveillance harms are not likely to provoke much political pushback against the NSA. Unlike the Framers, who wrote the Constitution shortly after risking their lives for their political commitments, most Americans have little respect for the political targets of NSA/DHS/FBI/Police/DEA surveillance and information sharing.** For the average voter, about the only thing more suspect than the two major parties are political activists who operate outside their ken. Justice Roberts's FISA Court, and the dozens of appellate judges like them, are unlikely to have more enlightened views. A movement to make the surveillance apparatus more accountable will need to achieve its goals indirectly, focusing on the costs, creepiness, or crony capitalism of mass surveillance. I hope to elaborate on each of these issues in future posts.
*Though perhaps not greater than the sum of terror threats---a question presently explored via cost-benefit analysis, but probably better addressed in scenario planning.
**To preempt the comment "you're mixing up different programs:" please take a look at this article on vertical and horizontal fusion of data sources in the new Information Sharing Environment. For the TL;DR crowd, there's this.