The Difference between Invisible and Visible Surveillance in a Mass Surveillance World

The title of this post comes from this recent paper by Professor Steven Friedland arguing that mass surveillance programs justified on national security grounds require at least minimal transparency to ensure that individuals' privacy interests are not infringed. Here's the abstract:

In Tijuana, Mexico, one can now look in the night sky and possibly see a small, desk-size object flying over the city. The object, a small, unmanned, low-altitude aircraft commonly referred to as a drone, is capable of twenty-minute battery-operated flights. The drone sends live video to screens at police headquarters. Several drones are being used both day and night in Tijuana for crime interdiction, particularly against burglaries. In Great Britain, multiple cameras appear throughout the country, part of a network of closed-circuit televisions also utilized for crime interdiction. 

While the United States has some “red light” cameras at intersections, most of its government surveillance is invisible to the public. The National Security Agency (NSA), for example, has multiple surveillance programs. The NSA obtains data from private companies, taps telephone calls, and gathers a massive amount of phone metadata and telephone records. Biometric techniques, such as facial recognition software, are already employed in a sophisticated manner by private companies such as Facebook, and will be utilized by the United States through its Biometric Optical Surveillance System (BOSS). 

These collective activities lead inexorably to the realization that we are now living in a mass surveillance world. The forms of surveillance are multiplying, from drones to biometrics to signals analysis. As we learn from the French root of the word surveillance, surveiller, meaning to watch over, our movements are being watched, stored, connected and dissected every day in myriad ways. 

For most surveillance to succeed, unless it is designed primarily to deter observers instead of capturing information or behavior, it is almost axiomatic that an element of secrecy is needed. This is especially true when the governmental objective is national security. The problem is that the national security narrative cloaks surveillance in invisibility. In doing so, the cloak minimizes other factors in the calculus for determining the parameters of lawful surveillance, such as the harms incurred by individuals, the Constitution and the rule of law. As a recent report by the independent Privacy and Civil Liberties Oversight Board noted, “Despite widespread support for balancing openness and secrecy, there has been equally widespread consensus within and without the government that the system tilts too far in the direction of secrecy.” 

With invisibility, there generally is no narrative, and without such a narrative, a coherent voice — the core of our adversarial court system and democracy — cannot be raised concerning the harms of surveillance, such as whether it might violate the Fourth Amendment or various statutes. Consequently, it is more difficult to distinguish between legitimate and illegitimate powers, creating a slippery slope of one-sided justification. 

This paper will explore the distinctions between visible and invisible surveillance. Given the significance of these distinctions, I will argue that some visibility of surveillance — some transparency — is needed to ensure that proper privacy safeguards exist. In short, reframing the analysis to allow a narrative about the harms of indiscriminate mass surveillance will lead to the protection of liberty and a stronger rule of law.

CRL&P related posts:

• Concreteness Drift and the Fourth Amendment
• Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar
• The legislative response to mass police surveillance
• Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment
• Excessive force claims under Fourth Amendment less protective when police use tasers?