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
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
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.