The Washington PostDemocracy Dies in Darkness

Is a democratic surveillance state possible?

Being able to name things is an important part of our humanity. (Before everything went sideways, Adam was supposed to spend eternity in the Garden of Eden naming animals.) Being able to name things gives us a power to describe them, identify what we like and don’t like, and begin to think of better alternatives.

So it’s important to name what we are seeing with the recent stories from the Guardian and The Washington Post on how the U.S. government is collecting cell-phone metadata and mining data from Internet companies. The best name that I have seen for this is the "National Surveillance State."

A surveillance state is one that uses bulk information and data techniques to monitor its citizens and draw inferences about their potential behavior in the service of carrying out the responsibilities that it sets out for itself. Like other parts of the state (welfare, national security), the surveillance state provides a type of security for its citizens through the manipulation of knowledge and resources. And like other parts of the state, the surveillance state fights against democratic efforts to provide accountability and transparency.

This name comes from a 2008 paper, "The Constitution in the National Surveillance State," by Yale law professor Jack Balkin. He provocatively argues that “[t]he question is not whether we will have a surveillance state in the years to come, but what sort of state we will have.”

If that's true, how can we distinguish between better and worse surveillance states? Balkin identifies and contrasts two. The first is an authoritarian surveillance state, while the second is a democratic surveillance state. And the recent scandals clearly reveal that we live in an authoritarian one.

What do authoritarian surveillance states do? They act as “information gluttons and information misers.” As gluttons, they take in as much information as possible. 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 authoritarian surveillance states also act as misers, preventing any information about themselves from being released. Their actions and the information they gather are kept secret from both the public and the rest of government.

Even though the paper is from 2008, this description of an authoritarian surveillance state fits perfectly with recent revelations about the Obama administration. The information that the National Security Agency has been seeking, from phone metadata to server access, is about as expansive as one could imagine. Meanwhile, the administration’s war on whistleblowers, which received public attention after revelations about the surveillance of AP reporters, shows a lack of interest in measures of transparency and accountability.

What would a democratic surveillance state look like? Balkin argues that these states would be “information gourmets and information philanthropists.” A democratic surveillance state would limit the data it collects to the bare minimum. Meanwhile, maximum transparency and accountability across branches would be emphasized. Congress and the public would need to be far more involved.

A democratic surveillance state would also place an emphasis on destroying the data that the government collects. Amnesia used to be the first line of defense against surveillance. People just forgot things with time, giving citizens a line of defense against intrusion. In the age of digital technology, however, amnesia no longer exists, so it needs to be mandated by law.

A democratic surveillance state would also require public accountability for the proper conduct of private companies that deal and sell in private information. It’s easy for people to be cynical about not being able to control their privacy when it comes to the government when they also feel powerless against private agents as well.

Having a “democratic surveillance” state sounds like an oxymoron, like having a cuddly hand grenade. Perhaps it would be better to just dismantle the surveillance state entirely and be done with it. And indeed removing the laws associated with the Global War on Terror would do much to remove the authoritarian elements of this state.

But in the age of cheap digital technology and Big Data, the surveillance state is already more expansive than we think. From the data modeling of COMPSTAT that determines the quota of marijuana arrests for police doing stop-and-frisks to traffic cameras that write you speeding tickets, surveillance and data are remaking the way the state carries out its duties. The key question, then, is what limits will be placed on its power.

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.

Meanwhile, the Constitution provides little public checks against the government simply gathering information collected by private parties. This is particularly problematic in an age where both political parties find privatization of government services important. Constitutional protections and hard-fought democratic transparency do not carry over when the government delegates to, or even devolves into, the private sector.

As Aaron Bady has argued in MIT’s Technology Review, the language and concepts for privacy evolved in a world where “walls” were still the dominant metaphor. Peeking through a wall was sufficient to prove you violated someone’s privacy. But technology has opened up a brand new world where walls no longer exist, or things exist in so many places that the idea of walls makes no sense. Without them we need new concepts.

As is often the case, the battle between authoritarianism and democracy can do a lot of the mental work. One of the great things about democracy is its ability to check private and government power, as well as creating institutional structure promoting accountability and transparency. And I fear it is the only way out of the situation our country faces.

Mike Konczal is a fellow at the Roosevelt Institute, where he focuses on financial regulation, inequality and unemployment. He writes a weekly column for Wonkblog. Follow him on Twitter here.