About August 2010
In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Although determining its precise outlines would obviously be impossible, a steady stream of leaks, hints, and public admissions has allowed us to trace its rise. By all accounts it has been astronomical. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.
But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?
Constitutional lawyer and columnist Glenn Greenwald argues this month that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger. In our new digital surveillance state, no one wins, except perhaps defense contractors.
Commenting on Greenwald’s essay will be Professor John Eastman, formerly of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties.
As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or on other venues. Trackbacks are enabled. We also welcome your letters. Send them to jkuznicki at cato.org.
In his lead essay, Glenn Greenwald argues that the digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.
John Eastman argues that the U.S. Constitution grants the President the authority to conduct surveillance of national enemies during wartime, including electronic surveillance. The Foreign Intelligence Surveillance Act cannot properly encroach on this power, and in fact it does no such thing. Warrantless wiretaps are therefore both strategically appropriate and constitutional. The nation remains at war, and such measures will remain appropriate at least until the end of hostilities.
Paul Rosenzweig argues that Glenn Greenwald has underestimated the continued oversight function of Congress, the media, and public-interest watchdog groups. He adds that effectiveness — while difficult to measure — appears to have been reasonably good. He concludes that privacy and civil liberties advocates need to save their fire for genuinely abusive programs, not mere threats or possibilities of abuse
Julian Sanchez draws our attention to the wider picture: The surveillance state extends beyond one or another potentially objectionable program. Its roots are structural, in the ease with which data can be collected and analyzed today. It is and will continue to be very important to get the legal and technological architecture of surveillance right. Creating mechanisms and institutions that safeguard the innocent and prevent abuses of power is an enormous challenge. Even building an abuse-free surveillance state would not do, because we cannot guarantee that it will be managed only by benign administrators.