Here's the abstract of an article by Jack Balkin (PDF at the link):
The Constitution in the National Surveillance State
During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State.In the National Surveillance State, the government uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State - a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information.
The War on Terror may be the most familiar justification for the rise of the National Surveillance State, but it is hardly the sole or even the most important cause. Increasing use of surveillance and data mining by public and private entities is a predictable result of accelerating developments in information technology. In fact, most surveillance in the National Surveillance State is likely to be in private hands.
The question is not whether we will have a surveillance state in the years to come, but what sort of state we will have. The National Surveillance State poses three major dangers for our freedom. The first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The second danger is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it, thus circumventing constitutional guarantees. Corporate business models, in turn, lead companies to amass and analyze more and more information about individuals in order to target new customers and reject undesirable ones.
The Administrative and Welfare State raised problems not only for the Constitution, but also for the rule of law itself. The same is true for the National Surveillance State. Changing methods of government demand new strategies to preserve constitutional values and democratic self-government. We mastered at least some of the problems caused by the rise of the Administrative and Welfare state; we must hope that we can do so the same for the National Surveillance State, which is already here.
Voted for that, then, did we?
Well, I guess we just did, didn't we?
NOTE And by "we," I mean, of course, "they."
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We don't get a vote on whether or not the future happens
The full text of Jack Balkin's article is available as Lambert says at this link, then scroll down the page and double-left-click on the icon for Social Science Research Network; opens as a 20 page PDF.
Go and read. If you take time for nothing else, Go. And. Read.
While brilliant of him to source this document and smart of him to keep bringing the issue to our attention, I take one exception to Lambert's comments; we don't get a vote on whether or not this all happens. In my view it makes no sense to approach this issue from a standpoint of "Voted for that, then, did we?" because it is coming, the cusp of it is already here, whether we like it or not. It is as though people of the 18th Century were to be asked if they were voting for the Industrial Revolution; wouldn't have mattered, it was coming anyway. What is open for discussion, what can be voted on, what is possible to change, is the way in which we manage the development.
Huge databases will be, are being, created; governments, always desirous of power, are integrating those databases with law enforcement, criminal justice, and threat surveillance; that will continue, and nothing can be done to stop it. We, you and I, all of us who communicate through the Web, lay down permanent electronic tracks of where we go, what we watch, what we read, who we communicate with and what we say; none of that is going to stop either, not our doing it nor the creation of the record.
The Internet represents the greatest leap forward in civilization since the invention of the steam engine, the first portable source of power amplification since the lever and the wheel. Today for the first time, everyday citizens can communicate with one another from anywhere around the globe, in real time, at any time, and because it is relatively inexpensive – unlike the steam engine –there is next to nothing right now that governments or the wealthy can do to manage and control its power.
This technological advance represents the greatest threat to the powerful elite since democracy, which as we all know has been systematically suppressed and down-regulated since its inception. But like democracy, which capitalism both needed in order to flourish and fears if unbounded as a threat to the dominance of the few over the many, direct unfiltered international interpersonal communications are both the key to rapid economic development and concentration of wealth and power for the wealthy and powerful while at the same time a potential reservoir for the ferment of unhappiness and possible revolution by the masses against the powerful elite. They - the powerful - want it, need it, will have it, but to survive they must control it.
To understand what is happening, we must move past the idea that any of this can be stopped; it cannot. What we must do is focus on how to control these changes, how to manage both our own behavior and the behavior of the powerful to maintain for ourselves the greatest possible proportion of freedom and liberty, and how to subvert the continued ascension of the powerful to the extent that we can.
There are more of us than there are of them. We can all talk to each other now, and for a brief time we will be able to do so without a great deal of control or oversight so this would be the time; waiting is not a good idea. We are just as smart as they are, and just as resourceful; our biggest weakness, the one they exploit, is that in comparison to the powerful we are lazy.
We are lazy and self-indulgent as a people, which is why we keep electing lazy and self-indulgent political figureheads who offer the superficial appearance of leadership combined with a good laugh. The American people voted for Ronald Reagan and George W. Bush not because they saw competence and wisdom but because they saw people just like them, people they were comfortable with, willing to take the easy way and joke and fool around and have a good time and not expect too much, people they'd like to have a beer with.
In consequence, here we are again today having to choose between John McCain the war hero fighter jock maverick barbeque buddy corporatist tool or Barack Obama the hip slick sophisticated smooth-talking non-threatening so cool to hang around with new black friend corporatist tool. (Don't start on Hillary - she's no better - and no, this is not fodder for an argument that Obama and McCain are equal; the Rs are certain and swift death while the Ds are a slower death and that gives us still a chance.)
There is little difference between the policies and the politicians of the Republican and Democratic Parties because there is little difference between the people who vote for Democrats or Republicans. Of the electorate only a radical few, the gullible evangelicals and rabid bigots on the Right and the hopeful but politically inept progressives on the Left, are different; the rest are all the same.
Don't be lazy like everyone else: GO. AND. READ.
Nothing being discussed on this blog, indeed nothing in all of contemporary politics or socioeconomic policy, is more important.
it's about controlling, not protecting
the national security state
is not about making people secure,
it's about controlling people's behavior,
implied an aclu fundraising letter.
an acute observation, i thought.
i pass it on.
for highly educational daily (more or less) readings on this and other constitutional issues,
put this site balkinization on your favorites list and read it from time to time.
it is VERY readable - for lawyerly discourse.
lederman, tanamaha, and scott horton are particular favorites.
bookmarked--thks!
and balkinization is excellent : >
One giant problem is that multiple databases are being created and slowly but surely being linked and the information made available to whoever has the power to order it collected -- both private and govt/law enforcement -- it's not just NSA or FBI or CIA or DHS or TSA or private airlines or banks and Marketers, etc, but all of them--even local governments like here in NYC -- http://blogrevolution.com/archives/2007/...
and we can't trust any of them at all, and once data is given to or taken by govt, it doesn't ever go away--accurate or not -- and they always abuse it, as we've seen over and over.