Orin and the National Surveillance State

Orin and the National Surveillance State

Orin and the National Surveillance State

Slate's blog on legal issues.
April 21 2008 2:35 PM

Orin and the National Surveillance State

Orin has not read all of my work on the National Surveillance State, so perhaps he may be forgiven for not recognizing that I emphasize the very points he mistakenly believes to be a critique of my argument: I argue that as times change, increasingly powerful information technologies are placed in the hands of governments and private parties alike. Governments must therefore increase investments in and methods of surveillance in order to meet new threats and new abilities to escape detection through traditional methods.  There is no disagreement here. At the same time governments also face pressures to use increasingly powerful techniques of information collection, collation and analysis not only to provide security but also to deliver social services.  Finally,  it is important to realize that much, if not most, of the new information gathering, analysis, and surveillance in the National Surveillance State is in private hands.

In the National Surveillance State, the government increasingly 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 characteristic features of the National Surveillance state are increasingly information-rich techniques of governance, the increased power of privately held information technologies and surveillance, increased cooperation between public and private enterprises in collecting, collating and analyzing information, and the increased adoption of information collection, collation, and analysis techniques for the provision of a wide range of of social services (not just criminal prosecution).  The National Surveillance State is a further evolution of the Administrative and Welfare State, on the one hand, and the National Security State on the other.  (I hope Orin doesn't think those are also merely fads!). I regard the development of these new forms of governance as the likely if not inevitable consequences of  long term technological and social change. The central question is how to structure these developments so as to guarantee civil liberties under changed conditions.

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.