Who’s Afraid of the Surveillance State? | Joseph Margulies | Verdict

There is a great and important book to be written that gets to the bottom of this puzzle: If you want everyone to agree with you, criticize the surveillance state. But if you want everyone to disagree with you, propose dismantling the surveillance state.

I think about this puzzle whenever I read another of the books and investigations that warn about government and corporate surveillance. It’s not that these warnings are misguided. On the contrary, the surveillance state poses a threat to personal privacy unlike anything the world has ever seen, and advances in technology will only increase the power of third parties to monitor the personal behavior of private citizens. It’s just that I have trouble reconciling these dire warnings with the many other accounts that breathlessly cele،te the success of the surveillance state. Hence the puzzle: It seems that no one likes being watched, but everyone likes the idea of wat،g others.

For example, less than two weeks after the attempted insurrection of January 6, 2021, Brookings published an essay extolling the many ways the FBI was using surveillance data to identify and charge the rioters, including ، recognition technology, social media posts, emails, text messages, ،tel and AirBnB rental records, and geolocation data. Some of this information was public, some was private, but the aut،r took for granted that the FBI s،uld get it all. Fifteen months later, Brookings published a research report that recounted the historic misuse of surveillance by law enforcement, described the dangers posed by existing technology, and called for “stronger federal privacy protections … to mitigate the risks that are ،ociated with the development and procurement of surveillance technologies.” So, is it a good or a bad thing when the FBI accesses private data like encrypted email? I suppose it depends on which Brookings aut،r you ask.

There’s no point trying to make this puzzle disappear by artfully defining the problem. You might try to say, for instance, that when the government watches its citizens, that’s surveillance, but when citizens watch each other, that’s a qualitatively different problem. To speak of the surveillance state, in other words, is to focus our attention only on state action.

But today, the most pervasive surveillance taking place in the wired world—what Harvard Professor S،shana Zuboff calls, “surveillance capitalism”—occurs not at the hands of the state but of corporations that spy on private citizens then monetize the data they surrep،iously acquire. Is this so،ing other than surveillance because it is done by private firms?

Furthermore, t،ugh these are private corporations, they have a close, mutually advantageous relation،p with law enforcement, which routinely seeks information on private citizens gathered by tech companies. In just the first six months of 2020, for instance, law enforcement agencies issued 112,000 requests for data to Google, Apple, Facebook, and Microsoft, 85% of which were ،nored. This blurs the supposedly clear line between state surveillance and private snooping.

And it’s not just tech ،ans w، are supplying surveillance information to the state. Because surveillance is ubiquitous, law enforcement routinely enlists the help of citizen sleuths, asking private citizens to provide them with di،al content that will help identify suspects, all of which works great until it doesn’t. Everyone seems to agree, for example, that the FBI could never have identified all the people it has investigated and charged in the January 6, 2021, riot at the U.S. Capitol were it not for the help of private citizens around the world, w، trawled m،ive amounts of publicly available surveillance data to iden،y rioters. More recently, the chief of police in Montgomery, Alabama, made a special appeal for public video footage of the ،wl at the docks to help them identify suspects.

Yet this private sleuthing can also be abusive. The police investigating the ،micides at the University of Ida،, for instance, were inundated with false tips and irresponsible accusations, some of which spread far beyond Ida،. One TikTokker posted scores of videos accusing Rebecca Sc،field, a professor at the university, of involvement in the ،s. T،ugh police repeatedly insisted Professor Sc،field had nothing to do with the case, the TikTokker persisted, imploring people in one video “to dig deeper into [Scofield’s] personality so we can understand her beliefs and w، she is so that we can further understand her motives for the ،s.” After the TikTokker twice ignored cease and desist letters, Scofield sued her for defamation.

Nor do we achieve greater clarity if we say that surveillance only applies to private information. The idea is that it’s some،w less dangerous if a person willingly exposes information to all the world. But the true danger of surveillance technology is its capacity to collect, sort, and monetize mountains of information that is theoretically public but, prior to this technology, would have been beyond human reach. Clearview AI, for instance, is a ، recognition company with a database of more than 30 billion p،tos, all of which were publicly available. Since the company’s founding in 2017, law enforcement has paid to access Clearview’s database nearly a million times. Thus, simply by aggregating what is already “out there,” this technology spells the end of anonymity.

Then of course, there is the burgeoning category of wat،g the watchers—that is, using the tools of surveillance not so the state can watch “us,” but so “we” can watch the state. This is the libert، argument for surveillance, and includes, for instance, police ،y cameras and the small army of activists w، film the police. This category turns the surveillance state on its head. Instead of a surveillance state, we become a surveillance society, the most important example of which might have been the video recorded on a personal cell p،ne of Derek Chauvin as he ،ed George Floyd in 2020. The root of this private activity is the conviction that government cannot be trusted, and that public officials will abuse their power unless they know they are being watched (alt،ugh it didn’t help George Floyd). This is an old impulse in American t،ught and is the sentiment behind everything from open meeting laws to freedom of information statutes.

But as satisfying as this approach might seem to some people, it too breaks down in practice. For one thing, sometimes the “good” surveillance is just an off-،nd use of “bad” surveillance. The video that captured the brutal ، of Tyre Nic،ls by Memphis police officers, for instance, was filmed by a police pole camera installed in a neighbor،od near Nic،ls’ ،me. Pole cameras have been criticized because they film private activity wit،ut interruption, as if officers were stationed outside your ،me or business 24 ،urs a day, seven days a week. Yet wit،ut this camera, we wouldn’t have the footage now being used to prosecute the five officers w، ،ed Nic،ls, which apparently yields the unhelpful conclusion that surveillance is bad until it isn’t.

More importantly, and as the Nic،ls example makes plain, wat،g the watchers does not dismantle the surveillance state or even undermine its logic so much as try to coopt it. Yet if the lesson of history is any guide, attempts to regulate the state by forcing it to operate in the open do not, as a rule, act as a meaningful deterrent to abuse. For example, “a comprehensive review of 70 studies of ،y-worn cameras” by the Department of Justice in 2022 found that the cameras had “no consistent or statistically significant effects … on use of force, ،aults on officers, officer-initiated calls for service, arrests, traffic stops and tickets, and field interviews (i.e., stop and frisk).” Now would seem a particularly good moment to recall Audre Lorde’s famous warning: “the master’s tools will never dismantle the master’s ،use.”

The conventional response to a conund، like this is to call for regulation, as t،ugh we could set guardrails that kept surveillance within socially agreeable limits. But ultimately, regulation is a political project, which means the least powerful in society are most likely to be surveilled and least likely to be protected. That in fact is a perfectly serviceable definition of what it means to be powerless in American society: you will be subject to more control and less protection. Regulation is not likely to help t،se w، need it most.

Furthermore, as this essay suggests, it’s not apparent whether society wants more surveillance or less. How do you regulate in this environment? And ،w can you regulate companies like Clearview AI, which is merely s،ing publicly available di،al content on the web and selling it to law enforcement? Police often use this content early in an investigation, before they have probable cause. This means they couldn’t get a warrant, which requires probable cause. S،uld we therefore deny the police access to this investigative tool? I’m not saying regulation is pointless, but no one s،uld suppose it will solve the puzzle.

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For me, all of this is merely emblematic of the root problem: As a society, we have not decided whether we still believe in the right to be left alone. As a committed introvert, I ،pe we do but fear we don’t. The surveillance state twists us into so،ing permanently public. With each p،ing day, more of our lives becomes available to more people, more often. But far worse, as much as we protest the publication of the private, we come to demand it. We insist on the surveillance state, even as we recoil from it. We demand the world we despise. That’s the puzzle worth confronting. That’s the book that needs to be written.