Jack Balkin, esteemed Yale Info/Law prof, head of the Information Society Project, and prolific blogger, gave a terrific lecture here at the University of Minnesota Law School earlier today entitled “The National Surveillance State.”
I can’t, in a blog post, possibly do justice to the sweeping synthesis he presented, so I won’t try. But I will note and expand upon three of the provocative ideas I took away (which I will present in my words, not Balkin’s). The lecture will be published in a later issue of the Minnesota Law Review.
First, Balkin compared what he calls a “national surveillance state” with the earlier development of “states” that we now take for granted: the administrative state, the welfare state, and the national security state. Each of these arose from a confluence of social, technological, and systemic trends that transcended any single action or any particular political ideology. Each quickly become broader than might have been anticipated when we took the earliest steps toward their creation. And each encompassed more than particular federal bureaucracies to embrace an entire interdependent system of government and non-government entities. (He noted defense contractors specifically in this context; I likewise would note that the welfare state depends heavily on the activity of service providers funded by government grants.)
There are lessons in this history for our response to the surveillance state. One of those lessons, a relatively optimistic one, is that we did, in the end, construct due process safeguards to deal with many of the potential negative effects of these earlier states upon individual liberties — imperfect safeguards, to be sure, and they do not reach every such incursion on individual liberty, but reasonably effective curbs on their excesses while still gaining the benefits provided by a strong military or a social safety net. Another lesson is that the external pressures toward the creation of these systems go beyond such comparatively small distinctions as Democrat or Republican: though one party or the other pursued the welfare state or the national security state with more gusto, when their opponents gained power they did not (and perhaps could not) dismantle the massive architecture that was by then emerging.
Second, Balkin opined that the rationale of a surveillance state departs from our prior “deterrence” model of security. The deterrence model punishes offenders, either enemy militaries or individual violent criminals, as retribution for their behavior and (especially) to deter such behavior in others. A surveillance state, in contrast, seeks to figure out when there is going to be a security breach in order to prevent it from occurring. [More after the jump…]
That could mean data mining to stop potential terrorist plots or locational monitoring to ascertain when individuals are moving into prohibited areas (now applied mostly to people on house arrest wearing ankle bracelets, but theoretically extensible to many other applications in a world of RFID and GPS). This new model is built on top of the existing one — we will not abandon deterrence entirely and embrace only surveillance/prevention. But it will operate separately. Evidence from NSA wiretaps, for instance, might not even be allowed in a criminal court proceeding. Because it will be separate, this parallel system may not be constrained by the structural safeguards built in to the deterrence model (think of the Geneva Conventions, the Fourth Amendment, evidentiary rules, the requirement of proof beyond a reasonable doubt).
Third, Balkin suggested that effective regulation of the surveillance state was unlikely to come from legislatures or courts. One idea he alluded to was the possibility of independent ombudsman-like figures to monitor abuses, perhaps without always revealing sensitive details about their concerns to the public at large. Anyone who has watched the development of the fairly toothless Privacy Office at the Department of Homeland Security might be a little skeptical of the effectiveness of such a mechanism. Balkin did suggest that the technological basis for the power of the surveillance state might also contain the ingredients for monitoring the surveillance state itself. An automatically generated audit trail, for instance, might get forwarded directly to the sort of independent monitor he envisions.
Balkin cautioned, quite rightly, that all of these ideas need a lot more thought and a lot more work. He even turned to the law students in the room and told them responding to the national surveillance state would be a challenge of their generation. A touch of drama, perhaps — but, once again, he’s right.