❄ A Framework to Contain Surveillance?

Summer 2013: Surveillance Summer

Earlier suspicions confirmed … and then some. Metadata and content. Telephone calls. Postal mail. eMail. Fiber optic streams. Internet. Web. VOIP. NSA. GCHQ. Targets. Collection. Acquiring. Retention. PRISM. UPSTREAM.

The Law

Once upon a time we were taught that the law embodied some elemental principles, among them:

• no ex post facto laws;
• right to counsel;
• trial by jury;
• adversary procedure;
• innocent until proven guilty;
• no cruel or unusual punishment;
habeas corpus;
• no self-incrimination;
• evidence;
• appellate review;
• and, on the authority of Gilbert & Sullivan, that the punishment fit the crime;

Early Amendments to the US Constitution spelled out basic rights: freedom of speech, freedom of assembly, freedom of the press. And Amendment IV:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These several rights stake out protections against the imagined—and amply experienced—raw power of the State. The State could flog, imprison, torture, and kill; could seize property; could consign to battle; could condemn as heretical or treasonous. That there had come to be normative limits on the State was the result of long struggle.

The Problem

The revelations of mid-2013 present a problem that is not new in kind, but is recently transformed by the scale, scope, and means of intrusion that current digital technology presents. Now the State can see and hear not all but ‘enough’ of what people utter to one another, identified as the work of named speakers and writers, that it could hold people accountable, at some future time, for their expressed thoughts. Or, more quietly, it could channel access to work and privilege to those whose ideas were ‘acceptable’ while systematically denying access to those whose ideas were shunned. The possibilities for corruption, for injustice, for abuse are clear.

Just as having nuclear weapons requires that Government judge them ‘managable’, so building a surveillance state requires Government to judge that it can control its ‘ security apparatus’. But will it prove able to do so? Can it be sure that no one person, no Party, no Corporation, will twist the power of secret knowledge into the fatal distortion of the political system? Can it be sure to be proof against authoritarianism, one-party rule, the police state? Have Americans forgotten J. Edgar Hoover?


No question that the US surveillance system incorporates rules and checks against ‘misuse’ of the powers invested in it. We are assured that the number of instances in which rules are broken is vanishingly few, by comparison to the total number of transactions with which the National Security Agency and its confrères deal.

Nor can it be denied that electronic surveillance—including the storage and querying of vast datafiles recording the activities of the people—can be usefully invoked in combating crime and regulating the border.

Nonetheless, I propose to set aside the sweet assurances, the claims of necessity and good effects, and even the history of interpretation by which the Fourth Amendment has been weakened. Instead I will respond to the question ‘how can Society and Polity protect themselves from the threat that State surveillance will be misused?’

Simple Rules

Assume that both public and private (corporate, market, journalistic, political) data collection will continue. It will be increasingly easy to connect data to specific men and women. Almost everyone could be the subject of a profile. Can effects of surveillance be contained?

Here are some promising tools to cage the beast of surveillance:

[1] Database Registry. Would it help to require that any database containing names, addresses, telephone numbers, email addresses, or that could be linked by a common column of data to another database (with names, numbers) be registered? On the one hand, to do so makes it possible to assess vulnerabilities and enforce rules. On the other hand, such a registry would be a handy first-step for anyone seeking to enrich individual profiles.

[2] Dossier Access. Could I have the right to demand a ‘printout’ of all data about me, wherever held? In practice, could such a dossier be collected and passed to me?

[3] Dossier Challenge. Could a procedure be put in place by which I could challenge as false or mistaken an entry in my dossier? Would the number of challenges overwhelm custodians?

[4] Forbid Private Databases. While it is hard to imagine the State functioning without extensive personal databases (Social Security, driver’s licenses), or a modern society without digital means to carry on and store financial transactions, could a way be found to segregate content from identifying markers (names, numbers)? And so make possible barring private databases that included entries tracable to named people, their addresses, &c.?

[5] Forbid ‘Bulk’ Collection of Transactions, Both Content and Metadata. Entertain the proposition that instead of collecting data on all and then ‘querying’ the data to develop leads, police and security personnel would instead make out an old-fashioned case, before a judge, for a warrant. That is: return to the Fourth Amendment.

[6] Require an Individual Warrant to Undertake a Search or Seizure. Drawing from the Fourth Amendment language, require a showing of probable cause and particularly describing the place to be searched, and the persons or things to be seized.

[7] All Warrant Requests Declared and Contestable. We can think of two classes of warrants: one to openly seek evidence pertaining to an individual who understands she or he is suspected of having committed a crime, the second to exploit the advantage of secrecy (by tapping a phone, intercepting email, or entering premises clandestinely) to develop evidence to lead to an arrest. What would change if the FBI, for example, had to announce its intention to seek a warrant before entering premises? What would change if the FBI did not have access to all email passing through the United States?


[Bruce’s Blog: 2013.09.03. Post BB07. Short Link p=589. Front Door Index: http://design.learnworld.com/. Permalink: http://www.learnworld.com/DESIGN/uncategorized/❄-framework-to…n-surveillance/]