This is 1570 words, which is 60% longer than the maximum length allowed. I am deducting heavily from the evaluation of the draft for failure to meet length limitations. The next draft should be shorter than 1,000 words.

-- By YinHuang - 23 Feb 2012

Introduction

The American government has an unprecedented capacity to surveil its own citizens, yet the existence of such capabilities has not generated much commentary by the public. Although the occasional op-ed piece might express concern about the extent to which blanket surveillance has become a reality, the voices of caution are invariably lost in a chorus of complacency. Without doubt, much of the complacency is due to reluctance to think about the problem. Why concern oneself with what the government might be monitoring when one can carry on with business as usual? Isn’t it a bit kooky to worry about what goes on inside the NSA when whatever happens there has no perceived effect on civil liberties? While such complacency is an obstacle in its own right, it would be a mistake to think that the apathy toward government surveillance can be dispelled by attacking complacency alone. Raising the public’s consciousness will require more because complacency is merely the symptom of a deeper failure to understand the ways in which widespread surveillance impinges on the traditional conception of ordered liberty. Only by showing to the public the concrete ways in which surveillance enables the abuse of power will one be able to begin a sensible discussion of how such surveillance should be controlled.

The first obstacle encountered by the would-be raiser of consciousness is the public’s apparently limitless faith in the constitutional guarantee of due process. “But we have due process!” has become the common refrain of those voices in the chorus of complacency. Due process, of course, should be afforded all due credit for its protection of civil liberties, but the scope of its protection should not be overstated. Modern surveillance practices are dangerous precisely because they enable the government to circumvent restrictions imposed by due process and thereby act against citizens without technically committing any constitutional violation. Circumvention of due process is possible because due process has never truly reached surveillance activities proper. Indeed, the relationship between surveillance and due process reveals an essential divide in the nature of government power.

The divide separates fundamentally prospective government actions from fundamentally retrospective ones. The former includes efforts to gather as much information as possible about the state of the world and, more to the point, the existence of potential threats. The latter is concerned with the imposition of liability, criminal or otherwise, for undesirable events that have already occurred. The crucial fact is that due process is predominantly concerned with the integrity of the retrospective half of government power and, consequently, has relatively little to say about the prospective half. In the paradigmatic criminal investigation, the goal is to gather enough evidence to prove beyond a reasonable doubt that the suspect committed the crime. Due process governs the evidence-finding process, ensuring the government does not build its case using abusive methods. Even when the government’s police power is used to prevent crime, the preventive activities are still directed toward some action that has already taken place, such as preparation for a crime in the case of a conspiracy “Purely” preventive activities, undertaken when concrete evidence of a crime does not exist, tends to be controversial. Indeed, the practice of “stop and frisk” has attracted criticism in large part because of concerns of arbitrary and racially skewed enforcement that have no basis in already completed actions. Although the standard of reasonable suspicion formally governs “stop and frisk” detentions, one is left with a lingering feeling that the police are targeting particular individuals because they “look” like would-be troublemakers.

The prospective use of government power, by contrast, is typically directed toward ends other than the imposition of liability for an already completed act. The usual purpose of intelligence gathering, for instance, is to enable the government to take action against potential threats to the state. Because intelligence gathering is not concerned with the imposition of penalties, it is not within the reach of the conventional notion of due process. Until recently, prospective activities were confined to the contexts of foreign surveillance and war. These activities typically had little effect on domestic citizens, as there was a clear divide between “foreign” and “domestic” activities. Before the 9/11 attacks, at least, it would have been difficult for the government to justify any desire to implement widespread surveillance of its own citizens. Presently, however, the threat---or perceived threat---of domestic domestic terrorism has provided adequate political support for domestic surveillance activities. While information gained through domestic surveillance is not formally admissible in court, it may nonetheless have a corrosive effect on civil liberties.

Corrosion of civil liberties by surveillance occurs through channels. First, surveillance enables targeted harassment of disfavored groups. Second, surveillance may enable the government to file subpoenas for information, thereby “unlocking” evidence for criminal prosecutions that would otherwise be impractical. In the first scenario, targeted harassment can have a significant chilling effect on public assembly. One needs only to consider the police response to Occupy Wall Street and its siblings to see the chilling effects in action. In principle, police departments are supposed to refrain from using force against members of the public unless necessary. In practice, however, police departments have significant latitude to use force. In cases where the use of force by police is questionable, 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. Individuals might thereby be deterred by assembling by the threat of a beating. In the second case, the abundance of information stored on social networks allows the government to obtain extensive information on the whereabouts of particular individuals. Facebook already regularly provides printouts of user profiles to law enforcement. Similar subpoenas might be expected for Gmail accounts, though the Electronic Communications Privacy Act and the Stored Communications Act may provide additional constraints on the use of subpoenas.

In either case, the government can obtain vast amounts of information without needing to observe the formal strictures of due process. Left unchecked, the ability to know what every citizen is doing at any particular moment will tend to efface the boundaries that enable privacy, subjecting all aspects of life to monitoring at the government’s inclination. Preventing such intrusion will require more than isolated amendments of statutes. Rather, prevention will require courts to recognize a right of privacy with respect to information that individuals voluntarily turn over to third parties. This change, however, will require courts to give the idea of privacy a constitutional meaning that, as of the present, has yet to be articulated in constitutional doctrine.

Merely amending existing statutes is inadequate because the existing statutory framework conceives of privacy in terms of particular situations, in which the government may not intrude into some protected domain. This is the approach taken by the Stored Communications Act (“SCA”), the statute most relevant to online information-gathering by the government. The SCA illustrates the perils of tying privacy to particularized circumstances. The SCA, for instance, defines “communication” in a way that relies heavily on the idea of a point-to-point communication, which was paradigmatic in the era of landline phones. This definition, however, is unlikely to be adequate for safeguarding privacy in the era of social networking. Much information is contained is “status updates” and photographs, which do not fit the traditional idea of a point-to-point communication. Such communications are “semi-public” insofar as they are broadcast to a sizable audience, albeit one chosen specifically by the user. While the user might expect such information not to be disseminated beyond the selected audience, the reality is that Facebook regularly complies with requests from law enforcement for “neoprints,” or comprehensive printouts of information posted to user accounts. Because most information associated with Facebook accounts is of the semi-public variety, it is not clear that such information falls under the protection of the SCA. In any case, the government can resort to subpoenas when necessary.

The ready availability of Facebook data to the law enforcement creates an unprecedented risk of government overreach into the private sphere. With Facebook, targeted harassment of individuals or groups becomes much simpler to carry out. Information gathered from Facebook profiles might be used in later prosecutions, as obtaining such information is not considered a “search” or “seizure” under the Fourth Amendment.

Amending the SCA is unlikely to solve the problem. First, the SCA is rooted in point-to-point communications. To the extent that an effective amendment needs to expand the statute’s scope beyond the type of communication afforded by telephones, changing a basic definition of the statute may effectively require the rest of the statute to be rewritten. Even if particular definitions were found, it is likely that later technological developments will render the amendments obsolete.

What is needed, then, is a constitutional principle safeguarding privacy. While a constitutional amendment would be ideal, one could make do with revamped interpretations of existing constitutional provisions. The Ninth Amendment, for instance, might be interpreted to include a far-reaching “right to privacy” among the unenumerated rights retained by the people. A constitutional principle safeguarding privacy would plug the loopholes left by statutory interpretation, thereby allowing the public to avoid complete reliance on the Fourth Amendment as a safeguard of privacy.

I'm not sure why this draft is so long. It says, basically, that comprehensive government surveillance and data-mining of populations is going to be the new normal, and that traditional search and seizure doctrine in the US is not going to be sufficiently protective. Given the weeks I spent on this subject, it seems likely that you could compress this part of the discussion into 150 words. That would leave you 850 for what the current draft barely does, which is to discuss what follows from your point (which I can't really call an insight, because it's one of the few ideas the course itself tries to put across, however poorly).

I'm also puzzled by the limitation to the US government. All major-state governments are engaged in one or another enhanced degree of surveillance, and no government more than the second most powerful on earth, led by the Chinese Communist Party. Discussion of the situation from a US-centric point of view may be desirable, because of the fairly robust tradition of protection for civil liberties under a theory of democratic limitation of sovereign power, but it is only useful if it also embraces—as my course did—a clear view of the larger cross-social context. Failure to mention or discuss global implications would be a weakness in a draft that met length limitations; absence of any mention of the behavior of more repressive states in a drafrt substantially longer than permitted does not discharge the full intellectual responsibility here.