-- By YinHuang - 23 Feb 2012

Surveillance has quietly undergone a dramatic change. Thanks to the technological developments of the past half-century, governments can now gather, store, and systematize information about their citizens on an unprecedented scale. In itself, this capability is already worrying, as data mining can produce inferences that are not evident from individual pieces of information. More alarming, however, is how surveillance falls into the gaps of existing constitutional doctrine. The Fourth Amendment, historically the principal safeguard against governmental intrusion into private affairs, is of little use in a world where information is not stored in “places to be searched” or “things to be seized,” but rather on servers accessible to anyone with the right login credentials. The vaunted “reasonable expectation of privacy” created in Katz mitigates, but does not fundamentally solve, the problem. While Katz might insulate some portion of “purely” private communications, such as e-mails with a single sender and recipient, there is no guarantee that the expectation of privacy continues to exist as the audience expands. The Fourth Amendment having been circumvented, one might look to the Ninth Amendment as the possible basis for a right to be free from reasonless surveillance. This path, however, is hampered by the dearth of case law giving meaning to that Amendment. As it stands, technological capability, combined with the lack of a meaningful framework for governing surveillance, has created a difficulty of constitutional dimensions.

The threat posed by surveillance comes from two directions, and the protection of ordered liberty will require the public to defend both fronts. The first and more obvious front is legal. Its protections consist mainly of procedural rules that prevent the use of improperly obtained information in criminal proceedings. The second and less obvious front is technological. The technological front is perhaps even more important than the legal one, as widespread monitoring of communications can give the government strategic advantages even if it yields no legally admissible evidence. Protection of the legal front will require the creation of a general right of privacy over personal information that is voluntarily given to third parties. The lack of such a right is the fundamental cause of the concern surrounding access to information on social networks. Currently, restrictions on the use of personal information is largely a contractual matter, much as was the case for tort liability in pre-industrial times. If Facebook improperly discloses a user’s information to the government or some third party, the user will only have recourse against Facebook itself. If the recipient of the information subsequently uses it to the owner’s detriment, it is unclear what remedy exists. This state of affairs bodes ill for civil liberties, as information store on social networks could legally end up in government hands simply by virtue of having been “voluntarily” given to a private intermediary. A general right of privacy would go a long way toward solving the problem by ensuring that any person injured by the unauthorized use of his or her personal information would have a cause of action against the misuser. Once such a right is created, one could begin constructing due-process protections against the use of improperly obtained personal information in criminal proceedings.

Defense of the legal front alone, however, is insufficient to safeguard civil liberties, as legal protections take effect only after some legal process, such as a criminal prosecution, has already begun. The government, however, can cow citizens without resorting to the prospect of jail time. A common method is the use of excessive police force. One needs only to consider the police response to Occupy Wall Street to see the chilling effects in action. In practice, police departments have significant latitude to use force, and alleged brutality is invariably dismissed as the work of a few “bad apples.” In most cases, it is not at all certain that some legal action will be brought to compel the police to justify the use of force. In cases where legal claims are brought, adjudication of the claims can take a long time. Would-be protestors are thus faced with a significant likelihood of police misconduct or brutality, with a comparatively small chance of obtaining redress should abuse occur. While thuggish police tactics are as old as law enforcement itself, surveillance now enables the government to target suppressive force more precisely than ever before. It can be trivial to identify planned assemblies on social networks, whereupon the only action left is to send the police to the appropriate location. The only way to prevent such anticipatory use of such information is to ensure that the government cannot the information in the first place. The widespread use of encryption is a useful first step in preventing large-scale information gathering.

The problems posed by surveillance are not unique to the United States. Governments around the world routinely monitor their citizens, often with effectively no constraint on their actions. The Chinese Communist Party’s wholesale filtration of Internet content illustrates the sort of system that could unfold in the United States if adequate constitutional protections are not established. Resisting these developments will require legal reform and the cooperation of technology providers.