The National Surveillance State

Het artikel van de dag (wel, eigenlijk is het al van 2008, maar het is -gezien de recente onthullingen- vandaag meer dan ooit relevant) komt van Jack M. Balkin, Knight Professor of Constitutional Law aan Yale University – Law School. Ik heb er om het u makkelijk te maken enkele opvallende passages uitgelicht.

The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have. Will we have a government without sufficient controls over public and private surveillance, or will we have a government that protects individual dignity and conforms both public and private surveillance to the rule of law? […]

Older models of law enforcement have focused on apprehension and prosecution of wrongdoers after the fact and the threat of criminal or civil sanctions to deter future bad behavior. The National Surveillance State supplements this model of prosecution and deterrence with technologies of prediction and prevention. […] Private companies and government agencies use databases to develop profiles of individuals who are likely to violate laws, drive up costs, or cause problems, and then deflect them, block them, or deny them benefits, access, or opportunities. […]

Today’s National Surveillance State goes beyond Foucault’s Panoptic model. Government’s most important technique of control is no longer watching or threatening to watch. It is analyzing and drawing connections between data. Much public and private surveillance occurs without any knowledge that one is watched. More to the point, data mining technologies allow the state and business enterprises to record perfectly innocent behavior that no one is particularly ashamed of and draw surprisingly powerful inferences about people’s behavior, beliefs, and attitudes. Over time, these tools will only become more effective. […] Data mining allows inferences not only about the direct subjects of surveillance, but about other people with whom they live, work, and communicate. Instead of spying on a particular person, data about other persons combined with public facts about a person can allow governments and private businesses to draw increasingly powerful inferences about that person’s motives, desires, and behavior.

The problem today is not that fear of surveillance will lead people to docile conformity, but rather that even the most innocent and seemingly unimportant behaviors can increase knowledge about both ourselves and others. Normal behavior does not merely acquiesce to the state’s power; it may actually amplify it, adding information to databases that makes inferences more powerful and effective. Our behavior may tell things about us that we may not even know about ourselves. In addition, knowledge about some people can generate knowledge about others who are not being directly watched. Individuals can no longer protect themselves simply by preventing the government from watching them, for the government may no longer need to watch them to gain knowledge that can be used against them.

Equally important, the rise of the National Surveillance State portends the death of amnesia. In practice, much privacy protection depends on forgetting. [..] The collation and analysis of events allows public and private actors to create locational and temporal profiles of people, making it easier to trace and predict their behavior. […] Ordinary citizens can no longer assume that what they do will be forgotten; rather, records will be stored and collated with other information collected at other times and places. The greatest single protector of privacy -amnesia- will soon be a thing of the past. As technology improves and storage costs decline, the National Surveillance State becomes the State that Never Forgets. […]

If some form of the National Surveillance State is inevitable, how do we continue to protect individual rights and constitutional government? […] We might begin by distinguishing between an authoritarian information state and a democratic information state. Authoritarian information states are information gluttons and information misers. Like gluttons they grab as much information as possible because this helps maximize their power. Authoritarian states are information misers because they try to keep the information they collect -and their own operations- secret from the public. They try to treat everything that might embarrass them or undermine their authority as state secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without having to account for what they do. In this way they avoid accountability for violating people’s rights and for their own policy failures. Thus, information gluttony and information miserliness are two sides of the same coin: both secure governments’ power by using information to control their populations, to prevent inquiry into their own operations, to limit avenues of political accountability, and to facilitate self-serving propaganda.

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