The Dangers of Surveillance, Neil M. Richards

Surveillance is about power. It is the focused, systematic and routine attention to personal details for the purposes of influence, management, protection or direction.

Not only have the technologies of surveillance multiplied; so too have the entities that wish to surveil.

Our government has shown a keen willingness to acquire this data and use it for unknown purposes.

Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered.

A special harm that surveillance poses is the 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.

  • Surveillance transcends the public-private divide, even if we are ultimately more concerned with government surveillance.

  • Secret surveillance is illegitimate, and we should prohibit the creation of any domestic surveillance programs whose existence is secret.

  • Total surveillance is illegitimate and we reject the idea that it is acceptable for the government to record all Internet activity without authorization.

  • Surveillance is harmful in that it menaces intellectul privacy and increases the risk of blackmail, coercion and discrimination. We must recognize surveillance as a harm in constitutional standing doctrine.

The general principle under which American law operates is that surveillance is legal unless forbidden.

A Panopticon is a prison designed around a central surveillance tower frm which the warden could see into all the cells. As such prisoners had to conform their activities to those desired by the prison staff because they had no idea when they were being watched. To be incessantly under the eyes of an inspector is to lose in fact the power of doing ill, and almost the very wish (conforming effects of surveillance).

The fear of being watched causes people to act and think differently from the way they might otherwise.

A National Security Letter (NSL) is a statutory authorization by which the FBI can obtain information about people. NSLs are covert and come with a gag order that prohibits the recipient of the letter from disclosing its existence, even to the person whose secrets have been told to the government. [ NSLs are being challenged by Google ]

Imagine a dissident like Martin Luther King living in today's informtion age. A government (or political opponent) that wanted him silenced might be able to obtain not just access to his telephone conversations, but also to his reading habits and emails. This critic could be blackmailed outright, or he could be discredited by disclosure of the information as an example to others. Perhaps he has not been having an affair, but has some other secret. Maybe, he is gay, or has a medical condition, or visits embarrasing web sites, or has cheated on his expenses or his taxes. All of us have secrets we would prefer not to be made public. Surveillance allows those secrets greater opportunities to come out, and it gives the watchers power that can be used nefariously.

In 2013, you can run an approximation of 1984 out of a couple of rooms filled with server racks.

Unscrupulous government officials could engage in blackmail, whether motivated by political or pecuniary considerations.

Surveillance, more specifically acts carried out by officials on persons without proper legal standing, is an illegal act. I, as a private citizen, cannot endlessly trail behind someone day and night, I'd be guilty of stalking.

There is no inherent right of the government to stalk citizens (and quite possible persons) just because the government has the capability.

And it is all about power. Human beings are power hungry creatures. Money is power for them. Knowledge is power for them. Useful knowledge about businesses is knowledge that translates into money. Money buys people and buys more power.

Who gets to define "rogue" and "honest".

In all the best of intentions there is often true evil at work.

Ministry of State Security

Panoptic pervasive surveillance.

In a truly free society, government surveillance by default should always be prohibited unless specifically permited.

As Edward Snowden's documents reveal more about the NSA's activities, it's becoming clear that we can't trust anything anyone official says about these programs.

Government agencies and corporations have cloaked themselves in so much secrecy that it's impossible to verify anything they say; revelation after revelation demonstrates that they've been lying to us regularly and tell the truth only when there's no alternative.

Secret courts making secret rulings on secret laws?

In a world where everyone lies to us all the time, we have no choice but to trust blindly, and we have no reason to believe that anyone is worthy of blind trust. Trust is essential in our society. And if we can't trust either our government or the corporations that have intimate access into so much of our lives, society suffers.

Rebuilding trust is not easy, as anyone who has betrayed or been betrayed by a friend or lover knows, but the path involves transparency, oversight and accountability. Transparency first involves coming clean. Not a little bit at a time, not only when you have to, but complete disclosure about everything. Then it involves continuing disclosure. No more secret rulings by secret courts about secret laws. No more secret programs whose costs and benefits remain hidden.

Accountability means that those who break the law, lie to Congress or deceive the American people are held accountable. The NSA has gone rogue, and while it's probably not possible to prosecute people for what they did under the enormous veil of secrecy it currently enjoys, we need to make it clear that this behavior will not be tolerated in the future.

Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs. Both practices constitute a present danger to popular sovereignty and the rights retained by the people.

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