Democracy in America, Part II: Spying for you

The number of Google searches of the word “privacy” has sharply increased over the last few months, suggesting that people might be questioning how much privacy they now have. Historically, the concept of privacy has been linked to the idea that we are entitled to keep secrets about personal and sensitive issues, and to reveal ourselves selectively. Yet, modern technology has increasingly challenged the idea that we can lock our secrets behind closed doors. Moreover, the distinction between private and public has blurred as we barter our secrets, now represented as data, for convenience on a day-to-day basis. We do so every time we manage our Facebook page, check in on Foursquare, pay with a credit card, or store our documents in the cloud.

Image courtesy of mw238, © 2013, some rights reserved.
Image courtesy of mw238, © 2013, some rights reserved.

But, unlike these instances when we feel in control over what we share, the recent NSA-related revelations show that our sense of control is illusory. Under the cloak of security, the government has been collecting massive volumes of data about everyone and everything not because it needs to but simply because it can, regardless of whether or not it is moral to do so. The latest NSA leaks show that the on going surveillance goes beyond PRISM, the NSA’s system for extracting data from companies such as Facebook and Google. The NSA has also been collecting millions of phones records of US citizens. This collection of “metadata” – information about every phone call save the content of conversations – can be compared to a Seurat painting: a single dot does not make much sense on its own, but many together create a nuanced portrait of the person in question.

Metadata is often more revealing than the content of a communication, collected with PRISM. A study published in the journal Nature[i] discovered that as few as four ‘spatio-temporal points,’ such as the time and location a phone call was made, is sufficient to determine the identity of the caller 95% of the time. The Wall Street Journal reports[ii] that not only is the NSA collecting out phone metadata, but also metadata on website visits, emails, and credit card transactions. All this information combined is able to provide a detailed illustration of an individual’s lifestyle, financial transactions, movement, religious and political beliefs, and sexual orientation.

The secret NSA program is not merely a product of the post-9/11 world, but it reflects a larger trend in how governments attempt to create the ‘National Surveillance State.’ This name comes from Yale law professor Jack Balkin’s essay ‘The Constitution in the National Surveillance State’[iii]. He describes a surveillance state as one that uses mass data collection, collation, and analysis to ‘identify problems, to head off potential threats, to govern populations, and to deliver valuable social services’. There are several ways in which such a state would pose a danger to our freedom.

Law enforcement in the surveillance state is focused on ex ante prevention and pre-empting crime, rather than on deterring and ex post prosecution of wrongdoings. Nimrod Kozlovski from Yale law school argues[iv] that the goal is to intervene by predicting when, how, and by whom a crime will be committed. Thanks to the extensive database, patterns of previous crimes, identified as ‘crime signatures,’ are used as a base for monitoring deviations from normal behaviour. This way it might be possible to predict, with a certain probability, that a crime is going to happen before it actually happens. As the Bush administration’s detention and interrogation practices show, the ultimate danger here is in the creation of a parallel track of law enforcement, allowing the government to go around the traditional legal restraints simply on the grounds that it is not engaged in criminal prosecution but in collection of military intelligence to fight terrorism. But if surveillance helps us fights terrorism, why not use it in everyday life to locate people who have not paid their parking tickets? Why not go further and preventively detain people outside the ordinary criminal justice system? Or, maybe, the government could find out people who impose higher costs on public resources and preventively exclude them.

The national surveillance state grows naturally out of the welfare state and the national security state. Given the enormous developments in information technology, the War on Terror only accelerated this new form of governing; it did not create it. Since keeping citizens safe from terrorist attacks, preventing ordinary crime and providing basic social services is difficult, if not impossible, without extensive data collection and analysis, a surveillance state cannot be avoided. The question, then, is what sort of surveillance state we will have. But can we distinguish between a better and a worse surveillance state? Belkin identifies two: an authoritarian surveillance state; and a democratic surveillance state.

Authoritarian surveillance states act as ‘information gluttons’, taking as much information as possible. But at the same time they act as ‘information misers’: they try to prevent any information about their operations from being released, and treat everything that might undermine their authority as state secrets, which allows them to avoid accountability for violating people’s rights as well as their policy failures. This description fits quite well with the recent NSA-related leaks: the information that is being collected is as expansive as possible, whilst the government’s crackdown on whistle blowers points to attempts to avoid transparency and accountability.

A democratic surveillance state, on the other hand, would limit the data it collects to the bare minimum, while emphasising maximum transparency and accountability, overviewed by a system of checks and procedures to avoid abuse. It would stop collecting information when it is no longer needed and regularly discard collected data. This way, the ‘state that never forgets’ causing the ‘death of amnesia’ would be avoided. In addition, an updated legal framework is also required. Much of government data collection falls outside the Fourth Amendment’s guarantee against ‘unreasonable searches and seizures.’ The 1979 Supreme Court ruling, Smith v. Maryland, says that companies own most of the data we share with them. This makes the protection of our electronic data located on privately held servers, including e-mails and documents in the cloud, extremely difficult. Most importantly, however, whatever constitutional restrictions constrain the government, they do not apply to private parties, who are thus free to collect and sell personal data back to the government.

In a democracy, the people are entitled to be informed about the extent of surveillance, how the records are being kept, and what the government does to prevent abuse. It is the people who should decide how much individual liberty and privacy they are willing to sacrifice in exchange for security. As the government’s capacity to collect information on its citizen has grown exponentially, the people need to clearly define their expectations, or face the threat of finding themselves sliding towards the authoritarian surveillance state.

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