Jack argues that one of the government's legal approaches to terror threats-bring early cases against people who pose remote threats, rather than waiting for them to act, so as to disrupt terror plots even at the risk of failing to secure convictions-is characteristic of the new National Surveillance State that we now live in, an idea that is discussed in this paper by Jack and Sandy Levinson. Orin says no big deal about "National Surveillance": in the modern world, governments use computers in the course of detecting criminal activity, but government use of computers is not the same as living in a "surveillance state." Jack says he was not criticizing the FBI in particular, or the government's use of computer technology for surveillance in general; he was just pointing out that this modern trend calls for careful thought given its possibly disturbing implications for privacy and civil liberties. Orin says that this claim is also no big deal. A few further thoughts:
1. People want both to control information about themselves and to obtain information about others. Various customs, practices, institutions, and laws reflect these general preferences. When technologies change, it can become easier or harder to control information about oneself. The Internet, in particular, seems to make it easier to obtain information about others, and harder to control information about oneself. Is this change good or bad? It is hard to say in the abstract. Certainly, people who are very private are worse off, while people who seek information about others (employers, colleagues, potential mates, potential friends, and so forth) are better off. Law and policy will not try to turn back the clock to 1990; but it will attack problems piecemeal, for example, the risk that computerized medical records will fall into the wrong hands can be addressed (and has been addressed) with regulations directed at hospitals.
2. There is a technological arms race between governments and criminals. Every new technology gives criminals new methods to commit crimes, and governments new methods to detect them. For example, computer technology enables criminals to obtain personal information that can be exploited for illegal ends, while it allows governments to improve tracking of criminal behavior, surveillance, and so forth. There is no rule that a technological advance must benefit one side or the other, or keep the balance of power constant. When technological change favors criminal activity, it will be impossible to maintain the existing crime rate without handing government new powers.
3. In the battle between government and criminals, innocents can be victims. If the government needs to be able to monitor email messages because criminals conspire by email, then the government will have the capacity to monitor email messages of innocent people. Unavoidably, this power will be abused by some agents, and innocent people will be harmed.
4. As Jack seems to be aware, the constitutional implications of these trends are highly ambiguous. If technological change hands the government a highly non-invasive, hard-to-abuse, and effective means for solving crimes and preventing criminal behavior, then we might want to restrict the government's powers along other dimensions where abuse occurs. If technological change favors criminals, we might need to strengthen the government's hand (for example, weaker search warrant rules) so that it can keep up with criminals. I doubt that one can say much beyond this; one must look at problems as they arise, and make the tradeoffs as best one can in light of the specifics of a particular case.
A final point concerns Jack's initial post, which claims or implies that in the national security state, preventive measures will take on additional significance, relative to the traditional law enforcement model of waiting for crimes to occur and then investigating them. Although it is true that technological changes might increase the relative value of preventive measures, it is also true that it can have the reverse effect. DNA matching technology, so far, has been useful for investigation of crime, not preventive measures. Computer technology makes surveillance more effective, but it also helps traditional law enforcement. Recent advances in computer technology can be exploited under both the prevention and the law enforcement model; there is no reason to believe that government will shift resources from one to the other.
The recent preventive detention measures have less to do with technology than with the nature of our current security environment. Preventive measures are more important for large-scale threats than law enforcement is. That is why during wartime, preventive measures are always used. During the early cold war, we lived in a national surveillance state: the government monitored suspected communists, and this practice also led to monitoring of the civil rights and anti-war movements. The government used the technology that was then available; it would make no sense to say that technological changes of that era caused the government to engage in surveillance, or more than it would otherwise have, using older technologies. Surveillance has become more important again in the wake of 9/11, but if the threat posed by international terrorism ever declines, then we can expect surveillance of potential terrorist threats, along with incidental abuse that harms innocents, to decline as well.
But there is a reason to believe that relatively intense level of surveillance is here to stay. That reason is not so much the threat of international terrorism, but technology's recent contributions to instruments of death. As it becomes easier for criminals to manufacture highly destructive explosives and deadly biological and chemical agents, we might all decide that a high degree of government surveillance is a price worth paying for a reasonable level of security. After-the-fact investigation and punishment are wholly inadequate when criminals seek to cause mass destruction and (as criminals frequently are) they are willing to risk their lives in order to achieve their illegal goals.