By Paul Rosenzweig, The George Washington University Law School
There is a wide gap between the pace of law and technology. This fact becomes especially significant when considering it’s often the private sector that is at the forefront of this change. The biggest question is: How does the private sector handle our personal data?
Private Companies Determine Your Privacy
Since private-sector companies like Apple, Google, and Facebook are the creators of most new technologies, they are the ones that develop the rules on how they handle your personal data. When it comes to the invasion of civil liberties, the exclusive regulations and policies set by these companies are often much more important than those devised by the government. Consider all those renewals of privacy agreements you see from time to time in your Facebook page or Twitter account, many times requiring your active agreement.
When the government purchases a new technology or buys data from the private sector, private and governmental rules merge, and the result is a unique phenomenon. We have to be cognizant that almost none of the policies and guidelines of private-sector companies are designed to benefit the public, but instead are primarily aimed at making a profit for their investors. The government, on the other hand, strives to serve the public. Therefore, there is an intrinsic conflict of interest in surveillance technology, as they are primarily shaped by private actors.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The Conflict of Secrecy and Transparency
The second factor contributing to this gap is the constant tension between transparency and secrecy. For a democracy to function, oversight is essential, and you can’t have oversight unless you have transparency. To control something, you have to see it.
But the government cannot publicly disclose the operations and resources of its intelligence community. That would defeat the purpose.
Therefore, for a society to be safe, transparency should be sacrificed. And here’s the conundrum of democracy. However, the fact remains that for a democracy to function, we need secret agencies and some institutions to oversee them.
The Inadequacy of Delegated Oversight
American voters have delegated the task of supervising the intelligence community to their representatives. Hence, the public indirectly oversees surveillance activities without its secrets being disclosed. But the system is broken, especially in light of recent disclosures about NSA surveillance of Americans.
A case in point is the Foreign Intelligence Surveillance Court, established in 1978 by Congress to oversee foreign intelligence operations. In FISA, federal judges scrutinize the intelligence community, but the investigation occurs behind closed doors. Herein lies a practical compromise between transparency and secrecy. However, since the public is not informed on the oversight process, there is no direct method to assess its effectiveness.
Learn more about East Germany’s Stasi state.
Different Interpretations of the Law
The problem is that often public institutions are in a constant clash over their interpretations of surveillance. Furthermore, it’s not just formal legal processes that shape the law and policy but also conflicts between different government branches, for example, between Executive and Legislative branches, or one of them with the Judiciary.
Additionally, the Executive branch itself has inner conflicts, for example, between the White House and the intelligence community. Also, there is the intrinsic tension between the government and the private sector, which has its own agendas and motivations.
Surveillance Threatens Civil Liberties
Of course, there are many other players that contribute to the shaping of public policies. Nongovernmental organizations and advocacy groups such as the American Civil Liberties Union strive against the invasion of citizens’ privacy by the government and big tech. And don’t forget the role of independent journalism and the media, known as the Fourth Estate, in defining and resolving the debate.
Still, many in public see these surveillance policies as fundamentally opposed to civil liberties. The surveillance state is not some far-fetched and abstract concept. It has real psychological effects on individuals and human behavior. Nowadays, many individuals are distraught enough with the prospect of being spied on that they decide to go off the grid. Many use anonymizing and encrypting technologies to keep their identities concealed from mass surveillance.
Learn more about the U.S. spy network in action.
Surveillance Is a Global Problem
Of course, the United States is not the only country that grapples with the specter of being a surveillance state. Historically, the world has witnessed some dark and Orwellian surveillance states. Even the thought of them should scare us. The Soviet Union and Cold War East Germany were two recent examples. But unfortunately, we see this frightening phantom in the totalitarian regimes of our own time, with China being the most obvious and egregious case. However, there is also the opposite, such as the European Union, where the political system favors a much more privacy-protective view of surveillance.
The United States is somewhere in between. We still have not figured out the appropriate public policy and even the legality of domestic surveillance programs. The question is how to deal with global-scale terrorism, an ideology whose primary purpose is to destroy American interests all over the globe. This conflict is a fundamentally asymmetric struggle that knows no boundaries with an enemy that is often invisible.
Many high-ranking officials firmly and sincerely believe that domestic surveillance programs are vital for ensuring American security. Yet, others in the government believe these types of programs are unlawful. Whatever our stance, there is no doubt that the conflict between the ambiguity of the law and the ambiguity of the security impulse shapes our future.
Common Questions about Transparency and National Security
Private-sector companies provide most of the new technologies, and they devise the rules on how their users’ personal data are managed. We have to consider that the policies of private-sector companies are designed to benefit their investors and not improve civil liberties and democratic transparency, even when the government purchases their products.
There is a constant tension between civil liberties and secrecy. For a democracy to work properly, we need oversight, and oversight requires transparency. Yet, many security programs by nature cannot be transparent.
Some individuals try to completely go off the grid to ensure privacy, while others utilize anonymizing and encrypting technologies to keep their identities concealed.
Unlike many authoritarian regimes such as China, the European Union favors a privacy-protective view of surveillance.
