By Paul Rosenzweig, The George Washington University Law School
The United States faces a fundamental conundrum that could have long-term consequences for the rule of law and civil liberties if not appropriately addressed. On the one hand, there is the security of the United States and its citizens, and on the other, the fact that people’s privacy and civil liberties are threatened.
Technological Surveillance and Democracy
At first glance, the balance of security and liberty doesn’t seem like a fundamental threat. But the relative simplicity of the issue can be deceptive. If you’ve heard anything about Edward Snowden and Chelsea Manning, then you are aware of the ghastly and overwhelming power of the out of control mass surveillance.
To resolve the enormous problem, we need to ask a fundamental question: Is it possible for the United States of America to maintain its surveillance program without threatening privacy and civil liberty? And to answer this question, we need to investigate the impact of technology on the rule of law.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Technology Trumps the Law
The law always trails technology. New technologies subjugate the law, and as a result, instead of the government, it’s usually private actors and companies that devise standards for their utilization.
The public cannot directly protect its liberties. As a society, we must rely on delegated protectors or, in some cases, self-appointed agencies such as Congress, the courts, and private interest groups to defend our liberties.
And finally, we have to be mindful of the clash of institutions. And by that, we mean the law is primarily a product of opposing institutional necessities, interpretations and worldviews. The statutes, regulations, or court rulings play a secondary role.
Old Laws Don’t Fit New Technologies
Some people conclude that this ambiguous arrangement is a corrupting influence and undermines the rule of law. And when they try to warn the society by disclosing classified and sensitive government information to the public, they are severely penalized, and even their very lives are threatened.
Part of the problem is the practice of applying old laws and legal interpretations to new technologies. In many instances, the underlying legislature was written decades ago, and with the technology of that era in mind. And in a world where technology continually changes, it’s irrational to expect old laws to fit new technological advancements. Yet, more often than not, that’s precisely the case.
Here’s an example. The idea of cyberspace privacy is mainly governed by the Privacy Act, which sounds very good and promising. The problem is that the act was written almost five decades ago in 1974. And although we can indeed find some appropriate and practical concepts and principles there, it’s also true that many of those principles do not fit the current technological challenges.
Learn more about the privacy laws and today’s technology.
The Changing Nature of Technology
The law and technology develop at very different paces, to put it mildly. Technological change is swift, and it’s getting only faster by the day. In the mid-1960s, Gordon Moore, the co-founder of Intel, observed that the number of transistors that could fit on an integrated circuit double about every two years for the foreseeable future. It is known as Moore’s Law, and to date, his prediction is remarkably accurate.
It customarily takes around 18-24 months for a new law to pass, and that’s not taking into account the time it takes to draft a new bill as well as the bureaucracy and the regulations that ensue. Legislation is inherently slow and methodical. For a law to pass, it has to have the blessing and general agreement of a wide variety of public agents, from interest groups and private sectors to the local and federal government.
Learn more about local police on the cyber beat.
The Legal System Is Conservative
We also have to consider the inherent conservatism of the legal system. The Supreme Court eschews addressing new technological considerations with sweeping opinions. An illuminating example is the case of Ontario v. Quon that addressed whether or not a police officer had privacy rights to the messages on his pager. Mind you, a pager. It took the Supreme Court until 2010 to address the issue, a technology that was almost obsolete by that time.
And despite this fact, here’s a part of the Court’s ruling: “[M]any employers expect or, at least, tolerate personal use of such equipment by employees because it often increases worker efficiency. … At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”
It shows the extreme reluctance of the Supreme Court to move concurrently with the pace of technological change. And this disconnect can only lead to infringement of social and individual liberties that many public and private actors are eagerly willing to commit.
Common Questions About How Surveillance Technology Can Undermine the Rule of Law
We see this discrepancy because we are trying to apply decades-old laws and regulations to new technologies.
In the mid-1960s, Gordon Moore predicted the number of transistors that could fit on an integrated circuit double about every two years for the foreseeable future. To date, his prediction about the pace of this technology has been remarkably accurate.
The legal system is inherently conservative. Moreover, the Supreme Court refrains from providing sweeping opinions regarding new surveillance technology.
