Surveillance State Pt 1

In this article, we will explore how technology often
trumps the law: In everyday life, legal rules often trail the development
and application of technology, and therefore, private actors—by
introducing new technologies and applications—frequently establish our
standards for their use. Secondly, I will describe how the public relies on
certain delegated protectors of their liberties rather than rely on themselves.
Third, you’ll learn about the clash of institutions: Much of what passes for the
law is more the product of conflicting institutional imperatives than of legal
controls through statutes, regulations, or court decisions.

1)How Technology Often Trumps the Law
● Part of the struggle to define acceptable surveillance techniques arises
from the fact that we are continually trying to apply relatively old laws,
and legal interpretations, to relatively new technologies.
● Often, the underlying legislation was written decades ago. In a world
in which technology changes as rapidly as it does, it is unreasonable—
indeed, almost nonsensical—to expect old laws to fit all new
technological applications. Yet, often, that is all we have.
● For example, consider the idea that privacy in cyberspace today and
within the government’s databases is governed principally by the Privacy
Act, which was written in 1974. Although the Privacy Act expresses some
important themes and principles that are still applicable today, it’s also
true that many of them don’t fit the current technological capabilities.
● For the most part, law can never catch up with technology; the
development of each moves at wildly different speeds. In a democracy,
the drafting of each new law moves through multiple layers, from the
private sector (and grassroots of citizen interest) to the public arena
(local, state, and federal governments), as well as through multiple
levels within the public sector.
● In federal government, we typically start at the top, with the president
and Congress, and move from drafting and the passage of new
legislation to its articulation and implementation by the federal
regulatory agencies—whose methods are inherently slow and deliberate.
By contrast, technological change is rapid, and it’s only getting faster.
● Moore’s law reflects an observation made by the cofounder of Intel,
Gordon Moore, about integrated circuits. In the mid-1960s, he noticed
that the number of transistors that could fit on a chip doubled every
year or two, and he predicted that it would continue to double for the
foreseeable future. To date, his prediction has been remarkably accurate.
● Eighteen to 24 months is also a good approximation of the time it takes
to get a new law through Congress, when all goes well. And that doesn’t
count the time it takes for the written regulations that follow, inside the
bureaucracy. Technology always seems to move ahead more quickly
than laws and regulations do.
● Related to this concern is the inherent conservativism of our legal system.
The Supreme Court is always reluctant to address recent technologies
with sweeping opinions. Consider Quon v. City of Ontario, California, a
case from 2010 that addressed the question of whether a police officer
had privacy rights to the messages on his pager—a technology that, by
2010, was almost totally out of date.
● While the Court addressed employer-provided communication devices,
a broad-brush technology that could have widespread implications, it
also provided a narrow view of the issue. It was reluctant to rush ahead
of technology, stating, “At present, it is uncertain how workplace norms,
and the law’s treatment of them, will evolve.”
● A related aspect of the disconnect between the pace of law and the
pace of technology that you also will explore in this course is the role of
private sector actors in creating expectations of privacy and in defining
the role of surveillance technology.
● After all, almost all the technologies —including tools like drones and traffic
cameras and the GPS
in your car—are manufactured by private corporations. Consequently,
because private companies bring us most of today’s new commercial
technologies and applications, they also have the initial responsibility
for setting the rules on the collection, storage, use, and analysis of data
that the new technology captures.
● Often, we find that those private sector guidelines and choices are much
more important in determining whether, when, and how your privacy
and civil liberties will be invaded than are any rules promulgated by the
government.
● Of course, that’s not always true. When the government purchases or
invents a piece of new technology—or when it buys data and information
from the private sector and then uses it for its own purposes—the
question quickly becomes one of governmental rules and controls.
● Who sets the terms for how the government uses the system? Typically,
it is Congress, through legislation, or the executive branch, through its
internal policy and guidance. Sometimes, in the case of conflict, it might
be the courts.
● Nonetheless, at least in the first instance, private actors, who are by no
means representatives of the general populace, make many decisions
that directly affect how surveillance is accomplished. Unlike elected
officials, these private actors take their cue not from voters but from
consumer-driven demands and concerns. It is, therefore, an oddity that
much of what we consider to be issues of great public policy concern in
the surveillance space is, in the first instance, shaped by private actors.

2)Delegated Control
● The second major theme is the idea of delegated control—a system
that reflects how transparency and secrecy are in continual tension.
● We want to exercise oversight of our secret intelligence operations,
such as the Central Intelligence Agency (CIA) and the National
Security Agency (NSA). Oversight is fundamental to democracy, and
transparency is essential to oversight. You can’t control what you can’t
see. But we also understand that complete transparency—exposing all
of their activities to public scrutiny—would frustrate their effectiveness.
● Methodologies and sources developed by our intelligence community
often cannot be publicly disclosed without draining them of all
usefulness. That’s a conundrum in a democracy: We want to maintain
The Supreme Court of the United States public control of our agencies,
but we also want them to be effective at what they do.
● Another theme that will be examined in this course is the idea that the
American public has delegated to its representatives in Congress and
the courts some of the responsibility for overseeing the intelligence
community. Something of this nature is, to many Americans, an
essential method of auditing surveillance activity without disclosing it.
However, today many think that this model of delegated transparency
is outmoded and ineffective. Especially in light of recent revelations
about NSA surveillance of Americans, some think that the current
system is too insular.

3)The Clash of Institutions
● The final overarching theme in this course is the idea that policy and
law are created by the clash of institutions every bit as much as they are
by formal legal processes. Often, these are conflicts between branches
of government—between, for example, the executive branch and the
legislative branch, or between either of them and the judiciary branch.
● Beyond this, there are often conflicts even within the executive branch—
between, for example, the White House and the intelligence community,
or between the Department of Justice and the Department of Homeland
Security. And sometimes one part of the government is in tension with
private sector actors, who march to a different motivational drummer.
● Standing in lonely opposition, in some ways, to the government and
even the private sector on issues of surveillance law and policy is civil
society. Throughout this course, you’ll discover how nongovernmental
organizations and advocacy groups exert a large influence on the
development of surveillance law and policy, as well as its application.
These include formal organizations, such as the American Civil Liberties
Union, as well as informal citizens groups and small communities, which
might, for example, simply oppose the flight of drones over their own
houses.
● Finally, you’ll learn about the role of independent journalism in
monitoring surveillance activity on behalf of the public. The press, or
media, is sometimes called the fourth estate because it has an outsize
role in defining the debate and, to some degree, resolving it.

Questions to Consider

1. Which is preferable: rules and guidelines set by common
   practice or by legal rules? Do you think it is realistic to try and
   set rules in a dynamic technological environment?
2. How significant do you think the Comey/Mueller threat to resign
   really was? Does that sort of pressure work on presidents?