Yale lawprof Jack Balkin argues that we’ve become a   National Surveillance State:

In the National Surveillance State, the government uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State – a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information.

The War on Terror may be the most familiar justification for the rise of the National Surveillance State, but it is hardly the sole or even the most important cause. Increasing use of surveillance and data mining by public and private entities is a predictable result of accelerating developments in information technology. In fact, most surveillance in the National Surveillance State is likely to be in private hands.

I can envision everybody reading this bobbing their heads up and down in agreement.  But Volokh Conspirator/GW lawprof Orin Kerr disagrees.

In his recent Lockhart lecture, published in this journal as “The Constitution in the National Surveillance State,” Jack Balkin warns of a “new form of governance” that he calls “The National Surveillance State.” This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government’s goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.

I know.  Kerr’s response lacks the visceral tingle one gets after reading Balkin.  Same for me.  We want to have someone to blame.  We want to attribute what’s wrong to malevolent intent.  We all read 1984 and are just a little miffed that it hasn’t come to pass yet so we can have a clear cut date to start the revolution.

But if you give Orin’s rejoinder some thought, you have to admit he’s got a point.  How do you keep them down on the farm after they’ve seen Linux?  Just as technology has become an inescapable part of our lives, so to has it become the medium of government.  Whether it’s a weapon or a tool is a matter of perspective.  When it comes to delivering healthcare, is it any different than when it comes to intercepting private communications?  Not to a binary machine.  It’s all just a push of the button.

But the arguments appear to converge at the corner of cause and effect.  Balkin goes on the assert:

The question is not whether we will have a surveillance state in the years to come, but what sort of state we will have. The National Surveillance State poses three major dangers for our freedom. The first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The second danger is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it, thus circumventing constitutional guarantees. Corporate business models, in turn, lead companies to amass and analyze more and more information about individuals in order to target new customers and reject undesirable ones.

Orin’s reaction, presumably, is that the law must “evolve” to keep pace with technological advances that would produce the society Jack fears.  Not having access to the full 5 page response, I can’t be certain, but it would appear from Orin’s assertion that government has become no more evil than before that the governance concerns can be adequately addressed by law, presuming the government to be willing to actually comply with it.

This is where I fear Balkin has the better side of the argument.  Aside from being less sanguine than Orin about the government, as an institution, having the best of intentions, recent history suggests that someone, somewhere, will see the opportunity of technology and use it to the government’s advantage.  As Dick Cheney teaches us, the President is incapable of doing wrong.  Even when someone sits in the oval office we believe we can trust, we have no idea what runs through the minds of the more permanent occupants of cubicles in other government offices.

I can’t seem to muster enough faith in people, especially the sort of people who believe that what they do is inherently right, making the ends justify the means, to believe that they will let the law stop them from using all that fun technology around them.  And as for the private sector, for whom oversight and ultimate government appreciation and vindication for their kind assistance, is almost a foregone conclusion, I have no faith at all.  Have we already forgotten the free pass given the telecoms?

I find it surprising that someone with as libertarian a bent as Orin would repose such faith in the government.  No less a patriot than Dwight David Eisenhower warned us in 1961 of the military industrial complex :

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Nothing has happened to allay the fear of unholy alliances between government and technology.  It exists, and therefore must be used.  Consider the FISA Court, for example.  Once an considered an outrageous deviation from constitutional protections, and today so utterly mainstream, even protectionist, given the government’s decision to circumvent even a star chamberish proceeding.  Constitutional entropy is deeply entrenched in the law, with a few sterling exceptions (i.e., Brown v. Board of Education, Miranda, Gideon) that are celebrated as marvelous advancements. 

Lacking the faith that Orin Kerr has in both the law as an effective shield and the government as an adherent to law when it conflicts with policy, the question of whether Jack Balkin’s future will be a result of a government leap off the edge or a technological shove.  Regardless, the government has tasted technology and can never be trusted with something so powerful and intrusive.  After all, it’s only human.