The Constitution in the National Surveillance State

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Tuesday, June 10, 2008
The Constitution in the National Surveillance State
Jack Balkin

My essay on the National Surveillance State, which states my views on the subject and expands on previous writings, is now available on SSRN. It is based on the Lockhart Lecture I gave at the University of Minnesota in October of 2006. Here is the abstract:

During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State.

In the National Surveillance State, the government uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State-- a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information.

............

The question is not whether we will have a surveillance state in the years to come, but what sort of state we will have. The National Surveillance State poses three major dangers for our freedom. The first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The second danger is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it, thus circumventing constitutional guarantees. Corporate business models, in turn, lead companies to amass and analyze more and more information about individuals in order to target new customers and reject undesirable ones.

more at:
http://balkin.blogspot.com/2008/06/constitution-in-national-surveillance.html

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