Read “The Dangers of Surveillance” here.
126 Harvard Law Review 1934 (2013)
From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no tangible harms, as the Supreme Court did recently in the case of Clapper v. Amnesty International. We need a better account of the dangers of surveillance.
This article offers such an account. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I explain what those harms are and why they matter. At the level of theory, I explain when surveillance is particularly dangerous, and when it is not. Surveillance is harmful because it can chill the exercise of our civil liberties, especially our intellectual privacy. It ialso gives the watcher power over the watched, creating the the risk of a variety of other 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.
At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public-private divide. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate, and prohibit the creation of any domestic surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine.