Boston and the age of surveillance: “It was like a science fiction movie”

Neil M. Richards, law professor at Washington University in St. Louis, writing for The Chronicle of Higher Education:

We were living in an age of surveillance before the Boston Marathon bombing, but the event and its investigation produced calls for much greater monitoring of our cities and our lives. The media narrative of the investigation, manhunt, and lockdown that followed the bombing was like something out of an action movie, with car chases, shootouts, and a dramatic televised ending. But it was like a science-fiction movie, too, featuring surveillance cameras, smartphones, GPS trackers, facial-recognition technology, thermal imagers, and even a robot. Hovering in the background, ready for the inevitable sequel, are the specters of police surveillance drones.

These technologies, especially the use of surveillance cameras to identify the suspects, seem to have helped the investigation. They have certainly intensified the debate over how much surveillance we should have as a society. Our cities were filling with surveillance cameras before the bombing, and Mayor Michael Bloomberg of New York and the legal theorist Richard Posner, among others, have called for even more monitoring. If we have nothing to hide, goes the argument, we have nothing to fear. After all, don’t we want to be safe?

More: “Surveillance after the Boston Bombing“

Also see Richards’ recent (March 25) article about the same subject in The Harvard Law Review:

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and literature are 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 that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.

But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases,1 and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis.

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, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms.

. . . [O]ur society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law.

. . . The challenge to our law posed by the Age of Surveillance is immense. The justifications for surveillance by public and private actors are significant, but so too are the costs that the rising tide of unfettered surveillance is creating. Surveillance can sometimes be necessary, even helpful. But unconstrained surveillance, especially of our intellectual activities, threatens a cognitive revolution that cuts at the core of the freedom of the mind that our political institutions presuppose. Surveillance may often be necessary, but it must be constrained by legal and social rules. The technological, economic, and geopolitical changes of the past twenty years have whittled away at those rules, both formally on their substance (for example, the Patriot Act and the expansion of National Security Letter jurisdiction) and in practice (for example, the pressure that the technological social practices of the Internet have exerted on privacy).

More: “The Dangers of Surveillance“