Maybe a Democratic surveillance state?

By Frank Moreas

I think of Mike Konczal as an economics writer, but he is usually just as illuminating when writing about other things. Yesterday at Wonk Blog, he wrote, Is a Democratic Surveillance State Possible? In it, he described work by Yale law professor Jack Balkin where he argues that there are two kinds of surveillance states: authoritarian and democratic. Of course, in the United States, we have the authoritarian kind. And that is perhaps understandable. It matches our pretend democracy.

Authoritarian surveillance states act as gluttons and misers of information. They are gluttons in the sense that they collect all the information they can without regard to content or source. As Konczal puts it, "More is always better, indiscriminate access is better than targeted responses, and there's a general presumption that they'll have access to whatever they want, at any time." But they are misers in that they want as little information as possible to get out about who they are and what they do. In other words, authoritarian surveillance wants ultimate power and no accountability or transparency.

Democratic surveillance states, on the other hand, are, "information gourmets and information philanthropists." They are highly selective about the information they collect and generous about what they are doing and for what purpose. Konczal points out that a big part of this would be information destruction. That's one thing you can count on: the government might, for example, take your finger prints to identify you. But they will use those fingerprints even after you die to accuse you of crime. The information just goes on and on. In the case of fingerprints, it probably makes sense. But does it make sense for the NSA to maintain all of my phone records until the end of time? I assure you that they think so.

The worst part of all this is that we know that we can't trust the courts. As Ireported earlier this year, FISA just acts as a pass-through filter for the surveillance state. Over 32 years, the FISA courts got 38,093 requests for secret monitoring and they denied just 11 of those requests. That means they approved more 99.97% of those requests. Great oversight guys! Konczal notes:

Democratic accountability is also needed because the courts, which are the major line of defense for classical liberals and libertarians, haven't provided a constitutional check when it comes to information. The Fourth Amendment isn't providing the privacy needs that are necessary to keep the state in check. The courts, for better or worse, are finding that most of the information that the government collects in this new digital age lie outside expectations of privacy.

Clearly, we need to move toward a democratic surveillance state. Actually, I'm even more liberal (Libertarian!) than that. I think most of our secret services are unnecessary. Just like with our imperial guard all over the world, they aren't there to make us safer. They are there to keep the rich and powerful rich and powerful. But I understand that few people think like I do. So the least we can do (the least) is to limit the scope of the surveillance state and make it transparent so that we know in a general sense what it is doing.

Afterword
Today at Wonk Blog, Timothy B. Lee asks, Has the US Become the Type of Nation from Which You Have to Seek Asylum? This is in reference to Edward Snowden, the NSA surveillance leaker who is in Hong Kong trying to get political asylum from the United States. He sums up:

There's no question that the United States has stronger protections for free speech and the rule of law than repressive regimes like China or Iran. But it's also clear that our courts defend constitutional rights less zealously today than they did in Ellsberg's day. Snowden wasn't crazy to question whether he'd be treated fairly by the American justice system.

That's an understatement. All indications are that someone like Snowden would be treated quite unfairly by the American "justice" system. Can you sayJohn Kiriakou?

(Cross-posted at Frankly Curious.)