Why surveillance is bad

Some people object that such automatically gathered evidence violates traditional fair trial guarantees, such as the right to confront witnesses, the freedom from self-incrimination, and the presumption of innocence.

These objections are, I think, unsound. The burden of proof in such cases remains on the government, and the defendant remains free to cross-examine the human witnesses against him and to introduce testimony about the supposed unreliability of the physical evidence against him. True, the physical evidence can be powerful, and, like other powerful evidence, it can put the defendant in a position where he faces conviction unless he comes up with some persuasive explanation for his actions.

That, however, simply shows that the government has met its burden of proof, not that the burden has somehow been improperly shifted. Automated traffic cameras can indeed change traditional legal rules in one important way. We generally accept this sort of owner liability, partly because the penalty is only money, not jail time, and partly because we recognize that owners can rightly be held responsible for the actions of those to whom they entrust their cars.

Cameras are not cause for concern, then, when it comes to individual privacy, fairness, or accuracy; the real issue is government power. In this respect, cameras are like other policing tools, such as the guns that police officers carry, wiretaps, the ability of police departments throughout the nation to share data, and even police forces themselves. Each of these tools can be abused and has been abused. So we have to consider each camera proposal on its own terms and ask what I call the Five Surveillance Questions:.

What concrete security benefits will the proposal likely provide? Exactly how might it be abused? Might it decrease the risk of police abuse rather than increase it? What robust control mechanisms can realistically be set up and maintained to help diminish the risk of abuse? And, most difficult, what other surveillance proposals is this proposal likely to lead to? Answering these questions for traffic cameras suggests that they are a good idea, at least as an experiment. They seem likely to help deter traffic violations.

They decrease the discretionary and sometimes oppressive power of police over motorists. There is a danger that local governments, which make money from traffic tickets, will use this cheap law enforcement device primarily to raise revenue without regard to whether it improves safety.

It happens in China and, more particularly, in Xinjiang province, home of the Uighurs, an ethnic minority that also has the drawbacks of being Muslim and not especially enlightened. The indignity to which the Chinese state submits them are not more enlightened. Surveillance is also dangerous in formal democracies.

The NSA has been spying on millions of Americans. But surveillance and control go hand in hand. The Technology Quarterly section also focusses on surveillance. It is true life is still much better in America than in China. The problem of the Surveillance State is not so much what it knows as what it can do with what it knows. The Surveillance State is dangerous not so much because it violates some standard of privacy, but because surveillance fuels control.

Once in place, a high level of everyday surveillance, like a fixed cost, implies a low marginal cost of information; it makes control less costly and more tempting for the state.

Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process before it is authorized.

We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

I develop this argument in four steps. I then develop an account of why this kind of watching is problematic. Part II shows how surveillance menaces our intellectual privacy and threatens the development of individual beliefs in ways that are inconsistent with the basic commitments of democratic societies. Part IV explores the four principles that I argue should guide the development of surveillance law, to protect us from the substantial harms of surveillance.