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The Dawning of the Surveillance Age


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The Dawning of the Surveillance Age
Topic: Miscellaneous 8:07 am EST, Dec 30, 2013

I think that the court challenges to the NSA meta-data surveillance program are going to work out as follows. There are three key arguments. The statutory argument - the argument that the program is illegal, the Fourth Amendment argument - the argument that the program is an unreasonable search, and the First Amendment argument - the argument that the program places a chill upon the exercise of the right to freedom of association.

On the statutory front, I think the argument that the program is legal is pretty weak. However, the statue was also written in such a way that ordinary citizens are prohibited from raising statutory questions about it in court. I'm somewhat aghast that Judge Pauley saw fit to call the program legal, but he did so after saying that the ACLU had no standing to raise the issue anyway. I think higher courts will stop with the standing analysis. They will avoid a messy issue that they don't have to engage in.

On the Fourth Amendment front, I think that the courts will adopt the more traditional view of the Fourth Amendment presented in Judge Pauley's decision authorizing the surveillance program, rather than adopting the mosaic analysis that Judge Leon presented. There might be a minority dissent that embraces the mosaic approach, but that approach is just too new - it hasn't had the right amount of analysis and currency within the legal profession for the Supreme Court to use it to strike down a major government program. Furthermore, there are experts on the Fourth Amendment who have looked carefully at the mosaic approach and are advising the courts not to adopt it.

That leaves the First Amendment. I honestly believe that the First Amendment arguments against the meta-data surveillance program are stronger than the Fourth Amendment arguments. It seems clear that constant collection of data about people's associations would have a chilling effect on their exercise of their right to freedom of association. Furthermore, chilling effects are not a novel approach to First Amendment analysis, the courts have struck down laws based on chilling effects for many decades. The court need merely recognize the reality of the situation here and apply existing precedent properly in order to find that this program violates the First Amendment.

However, there are various reasons to think that this will not happen. The First Amendment issue doesn't seem to be as well understood within the legal profession and it hasn't been taken as seriously in general as I think it should. Judge Pauley wrote it off with a few paragraphs based on the idea that you can only speculate about whether or not your data will be analyzed by an NSA agent. I think that Pauley's argument is wrong - the certain and constant collection of data about your First Amendment protected activities can have a chilling effect on their exercise, regardless of whether or not analysis of that data by an agent is certain. However, its possible that the Supreme Court will adopt Pauley's analysis, because they don't want to invalidate the NSA program and will look for a rationalization that permits it to continue unmolested.

Either way, the NSA program will be allowed to continue in some form: I don't think that the Supreme Court will prohibit the NSA from collecting the data outright in any scenario. If the Supreme Court finds that the First Amendment applies, this will be best, because they will impose strict limits on the program that prevent it from being used for an expanded set of applications, and they will set the stage for First Amendment arguments about other data retention programs that are created in the future.

However, if the Supreme Court adopts Judge Pauley's analysis, it will be very difficult to challenge any data retention or surveillance program on Constitutional grounds in the future. Furthermore, the gates will be opened for law enforcement to gain access to the data for a variety of applications. It will come up, time and time again, that data in the database could be useful for solving a particular crime or resolving a particular civil dispute. If there are no Constitutional issues, there will be no barrier to using the data, once retained, for any purpose that anyone desires.

I think that we'll soon be seeing a variety of government programs that retain years of data about our web browsing habits, the location information from our cellphones, pictures of our automobile license plates, and closed circuit camera data. Some of these things are expensive to implement today, but it won't be long before they become affordable. I hope that the First Amendment limits the way that these programs can be used, but if the courts don't recognize that, there will be no limits. Once people start to accept that this is happening, the creation of these surveillance systems will no longer be taboo.

Thus we enter a future with a markedly different character than the past. A surveillance age in which everything that you do is constantly recorded in a government database, and can be held against you in a court of law. Those of us who are opposed to this monitoring will be left with no option but to effect change through the polls. I think there will be a small, vocal, anti-surveillance political movement that can be compared to other political special interest groups that we see today such as abortion activists or pro and anti gun rights groups. Ultimately, the government can sustain policies that a lot of people hate, and the future that many of us have feared is upon us.

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