Law professor makes a case for legally recognizing the Dangers of Surveillance

The Dangers of Surveillance, written by Neil M. Richards, Professor of Law at Washington University in St. Louis, was recently published on the Social Science Research Network. In it, Richards proposed “four principles that should guide the future development of surveillance law.” Yet he said we must first recognize that: “Surveillance transcends the public-private divide;” that “secret surveillance is illegitimate;” that “total surveillance is illegitimate” and that “surveillance is harmful.” The courts may understand that surveillance could be potentially harmful, but “have struggled to clearly understand why.”

Richards talks about intellectual privacy and how new ideas develop best when we are not being watched. You are being “watched” while reading digital textbooks or online articles, using e-readers to read books from Amazon or Barnes & Noble, and even with every click you make online. When you are being watched, “it interferes with intellectual privacy” which is “necessary to promote intellectual freedom. It rests on the idea that free minds are the foundation of a free society, and that surveillance of the activities of belief formation and idea generation can affect those activities profoundly and for the worse.” From behavioral advertising, to Big Data collected by third parties, or data surveillance by the government, the watcher holds all power over the watched. “The fear of being watched causes people to act and think differently from the way they might otherwise.“

“Surveillance scholars continually reaffirm that while surveillance by government and others can have many purposes, a recurrent purpose of surveillance is to control behavior,” Richards wrote. “The bottom line about surveillance and persuasion is that surveillance gives the watcher information about the watched. That information gives the watcher increased power over the watched that can be used to persuade, influence, or otherwise control them, even if they do not know they are being watched or persuaded.”

He tackles the Catch-22 problem that we’ve seen in the courts, where plaintiffs can only challenge secret government surveillance that they can prove and the government won’t hand over the information to prove it. The law does not recognize that surveillance can cause “injury” and courts have “cast surveillance as a Fourth Amendment issue of crime prevention, rather than one which also threatens intellectual freedom and First Amendment values of the highest order.”

But Richards said that he wants to “advance two lines of critique to the notion that surveillance does not create a legally cognizable injury: first, that surveillance by government and private actors threatens intellectual privacy and chills the exercise of vital civil liberties; and second, that surveillance affects the power balance between individuals and those who are watching, increasing the risk of persuasion, blackmail, and other harmful uses of sensitive information by others.”

My argument is not that intellectual surveillance should never be possible, but that when the state seeks to learn what people are reading, thinking, and saying privately, such scrutiny is a serious threat to civil liberties. Accordingly, meaningful legal process (that is, at least a warrant supported by probable cause) must occur before the government can perform the digital equivalent of reading our diaries.

Richards makes a case for the idea that surveillance is harmful. “A reasonable fear of government surveillance that affects the subject’s intellectual activities (reading, thinking, and communicating) should be recognized as a harm sufficient to prove an injury in fact understanding doctrine.”

He also touched on threats of total surveillance, but the ubiquitous surveillance of today is making that a reality.

A world of total surveillance would be one in which the power dangers of surveillance are even more menacing. In such a world, watchers would have increased power to blackmail, selectively prosecute, coerce, persuade, and sort individuals. A world of total surveillance is not just science fiction. It is the world toward which we are slowly creeping, as software is coded, databases are combined, and each CCTV camera is successively added to the network.

He wrote that there are:

many forms of surveillance – covert and overt, public and private – menace our intellectual privacy and the processes of belief formation on which a free society depends. They also create a power imbalance between the watcher and the watched that creates risks of blackmail, undue persuasion, and discrimination. Courts and legislatures should therefore scrutinize any surveillance that threatens these values. But because of their relationship to First Amendment values and political freedom, surveillance of intellectual records – Internet search histories, email, web traffic, and telephone communications – is particularly harmful. 

In closing, Richards stated, “The alternative to grappling with the civil-liberties threats that surveillance poses is to ignore those threats altogether, to face the prospect of rendering widespread government surveillance unreviewable and uncheckable. Democratic societies can do better than that.”

Neil Richards does a tremendous job of making a legal case, perhaps one that the courts would accept, of why surveillance is harmful. The italics are my emphasis on his thoughts, but in reality his whole paper for Harvard Law Review is worthy of emphasis. We desperately need to overhaul surveillance law. Richards’ paper is only 38 pages long and I highly recommend that you download it and read it yourself when you have time so you can better grasp all the valid points he makes about The Dangers of Surveillance.

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