We have heard a great deal under both Bush and Obama about the extent of government surveillance, with a crescendo in recent weeks. We are learning that virtually all of us turn up in government surveillance in some way.
Dan Solove, in a series of wonderful books beginning with The Digital Person, has made clear that the problem is probably much worse than that, because the government employs a variety of private companies to massage its data. And still worse because we know that data is constantly bought and sold, mixed and matched, with results that are sometimes comic and sometimes tragic – people assigned identities by insufficiently skeptical computers that confuse our records with the records of criminals or v.i.p.’s. The databases can and do make mistakes that flag innocent people and deny them the right to vote, the ability to get a loan, a mortgage or just get on a plane.
Surveillance data can lead government officials to tail an individual, looking for each and every small transgression. Less scrupulous agents can use information to injure people for private reasons. Government agents can attack people whose politics they dislike without anyone knowing what happened. I’ve had documents in my hands that reflected just such behavior. Government agents are human like everyone else. And they are subject to all the same human flaws that everyone else is – I do mean everyone; flaws are not the exclusive possession of government agents, as some like to believe.
What makes this serious is the combination of the power of the information, the fact that everyone is potentially targeted, and the likelihood of errors of all sorts, accidental, negligent, intentional and vicious. And it is also politically dangerous. Indeed what has always been frightening about the unrestricted pursuit of information has been the example of the secret police in all of the world’s totalitarian societies. Information is dangerous, and dictators use it to prevent opposition. None of this is about whether you or I have something to hide.
But here is the problem. Although I have always believed strongly in civil liberties and our protections from government, especially with respect to the criminal process and the spying on us that government does, it is clear to me that none of this is going away. A few vocal folk in the press don’t like it. Some civil libertarians on the left, and libertarians on the right don’t like it. And none of us make any difference.
So what can we do? My answer is that we have to pay attention to what is done with the information, how it is protected, and how it is used. We have to have rules for the appropriate and the inappropriate. And we have to have some real enforcement methods. Maybe we need an audit trail for those who access the information. Maybe we need clearer rules about what whistle-blowers can and can’t do, indeed what they should and should not do, and what the rest of us will do to protect them. If we mean to protect ourselves, we have to start working at the opposite end from where we have been, working on the uses rather than just the collection of information. The tsunami of data gathering has been rolling over us for a long time and it doesn’t seem ready to roll back.
But so far, amid all the posturing, Congress has not provided enforceable rules for the use of the informationgovernment collects.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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