The U.S. Supreme Court and the Legitimization of Surveillance

The Culture of Government Surveillance

In his superb book The Culture of Surveillance: Watching as a Way of Life David Lyon portrays 21^st century society as fully embedded in the processes of surveillance, both as a surveilling entity and a subject under surveillance. The overwhelming culture of surveillance, as Lyon notes, is deeply connected with social, economic, and political processes, with private and public entities and institutions engaged in imposing surveillance measures¹. In many other studies devoted to the phenomenon of surveillance, scholars focus on the power relations between the surveilling and the surveilled, and the consequences of these relations for the operation of state and society from the political and economic perspectives.² Numerous researchers, experts, and activists have been stressing the negative consequences of broad and often uncontrolled government surveillance, referring to the necessity of protecting the constitutional rights of the people in democratic societies³. However, there are also scholars and analysts who justify the scope of surveillance measures imposed by state authorities, arguing for the importance of providing a greater degree of security to contemporary societies, despite the challenges it brings to the constitutional protection of individual rights.⁴ All this leads to the conclusion, in a contemporary world functioning in the shadow of overwhelming polarization, that these contradictory arguments should be balanced in such a way as to satisfy the proponents of both approaches. There are two key challenges stemming from this conclusion: first, who should evaluate the values and arguments involved, and, second, whether the result of such a balancing will satisfy both a government and its citizenry.

Although recent research in surveillance studies pertains mainly to post-9/11 period or post-Snowden era, when we focus on the analysis of the sources, conduct and consequences of the digitalization of surveillance it seems obvious that the practices of watching and spying were laid down as foundations of the functioning of countries and societies centuries earlier, when the technology was far simpler. From the beginning of mankind people have been spying on each other, and governments have been prone to collecting information about their allies and enemies in international relations, as well as on their own citizens. Ancient rulers used spies to collect information about imminent threats and dangers, or to learn about the weaknesses of the lands they wanted to conquer. Similarly, medieval kings based their knowledge on the secret work of agents, collecting information which could be used to strengthen their domestic powers and international position. In the following centuries, in times of enhanced collaboration among countries, when stable diplomatic missions became a demanded feature of bilateral relations, many governments decided to use these units as a source of spying and watching how allies (or enemies) operated.⁵

In the 19^th century, with the advent of the telegraph and the telephone, the scope of government surveillance measures imposed within industrialized societies increased significantly, leading to the often uncontrolled wiretapping of criminal suspects by law enforcement agencies or the surveillance of political opponents by the authorities.⁶ There is no doubt, however, that the fastest technological growth resulting in the introduction of enhanced surveillance procedures has occurred since the second half of the 20^th century. According to Gary T. Marx, that period saw

“a significant increase in the use of technology for the discovery of personal information. Examples include video and audio surveillance, heat, light, motion, sound and olfactory sensors, night vision goggles, electronic tagging, biometric access devices, drug testing, DNA analysis, computer monitoring including e-mail and web usage and the use of computer techniques such as expert systems, matching and profiling, data mining, mapping, network analysis and simulation.”⁷

However, it is in the 21^st century that the scope of surveillance measures and the extent to which people are watching and are being watched seems most significant in influencing the functioning of countries and societies. Such a situation has been enhanced, on the one hand, by the development of technology, leading to the use of advanced information-collecting techniques and systems of surveillance resulting in the production of the ‘Big Data’ now used by governments and corporations to monitor, categorize, and evaluate citizens, and, on the other, by the overwhelming need of contemporary societies and governments to have access to said information. Contemporary surveillance is properly called dataveillance⁸ due to the enormous amount of data collected by the executive or independent agencies equipped with powers to gather, process, and analyze various types of information regarding people suspected of presenting a threat to domestic or national security. Collecting information is also characteristic of members of societies playing various roles, such as parents, employers, the leaders and administrators of educational institutions, business managers, journalists, or the heads of other organizations. No matter the social position and function, everybody is a member of a society that has been plunged into the stream of surveillance culture.

Apart from the very broad impact that the culture of watching and being watched has had on contemporary societies and economies, it seems obvious that without the significant role of governments in that process the development of national surveillance frameworks would not have been so rapid and effective as can be observed nowadays. Surveillance, as a tool of law enforcement agencies and intelligence institutions, has become a natural element of the process of governing, regardless of political system, form of government, or geographical and geopolitical location. The need to provide safety and security to the citizens of a country has forced state leaders to reach for the best available and effective tools for the conduct of domestic and foreign policies. Therefore, surveillance has become an indispensable means of power, and, at the same time, an attractive measure imposed by authorities willing to pursue their goals and policies in an efficient and effective way. This enhancement of the ability of governments to surveil their citizens has raised concerns about potential violations of constitutional rights, including the due process of law, the right to privacy, freedom of expression, and several other individual freedoms possibly limited by restrictions imposed by the practice of broad interception.⁹ This has led to tensions between two contradictory approaches to constitutional interpretation – on the one hand as presented by authorities convinced of the necessity to protect their country and its citizens from interior and exterior danger, and on the other a critical approach shared by the majority of those in communities represented by institutions and organizations arguing for the stronger protection of the fundamental rights of individuals, such as the right to privacy, freedom of speech, and procedural rights.¹⁰ These tensions have dominated political rhetoric, especially in times of real or potential threats to state security and the safety of the people, defining the language of public debates, legislative processes, and judicial disputes. The politics of surveillance has become an important element of the policies of all governments in the world; however, it was the U.S. government which, due to its growing role in international relations, accompanied by the development of enhanced technology, became the leader in 20^th century in using surveillance measures to pursue the goals of the state, as well as the political interests of those who govern.

Governmental spying led to the development of surveillance measures in the United States from the beginning of the 20^th century, with the establishment of the Bureau of Investigation (later the Federal Bureau of Investigation, the FBI), and especially in the late 1940s and early 1950s, when the emergence of the Cold War, which redefined and determined the foreign and domestic policies of the country for almost 45 years. The creation of the Central Intelligence Agency (CIA) and the National Security Agency (NSA) marked the beginning of the new era of spying focused on foreign intelligence, but domestically the Red Scare and anti-communist sentiments of the 1950s expanded the scope of the surveillance of American citizens and equipped the federal executive branch with almost uncontrolled power.¹¹ This was the first time the practice of mass surveillance occurred as a consequence of the use of signals intelligence and broad espionage measures applied by a government expanding its eavesdropping power. As Ivan Greenberg observes, the “political intelligence system was created not only as a government’s response to insecurities, radicalism, nativism, conspiracy theories, but rather the centralization of power in the federal government”¹². It soon transpired that the use of political surveillance was an effective way to control the society, as well as to spy on political rivals, including organizations and individuals sharing ideologies inconsistent with the interests of the rulers.

The above-mentioned system turned out to function in an overwhelming culture of secrecy which had been evolving since the beginning of American statehood. Appealing to the necessity to limit the access of unauthorized actors to the communications and activities of the government, the executive tried to prevent other branches from controlling its surveillance powers. This policy led to numerous abuses and scandals involving law enforcement and intelligence agencies overusing their competences and creating a secret world of controversial and potentially illegal surveillance.¹³ The role of the free press and engagement of whistleblowers raised public awareness of the possible abuse of power within the executive branch, leading to the first comprehensive congressional investigations into the secret world within which it operated. As the result of the work of two congressional committees functioning in the mid-1970s, multi-page reports were created proving massive usurpations of power and constitutional violations on the part of the FBI, CIA and NSA.¹⁴ Secret surveillance became synonymous with governmental abuse and one of the main sources of the growing distrust among the population towards the authorities. As a reaction to the critical approach of American citizens towards the law enforcement and intelligence agencies, the authorities decided to implement new laws and policies aiming at assuring greater transparency and control over the system of surveillance.¹⁵ Time showed, however, that with the growing role of digital technology leading to massive Internet-based surveillance, the government has been equipped with very effective means of eavesdropping and gathering information. Old-new dangers for civil rights abuses turned out to be crucial concerns of politicians and the public alike, especially after the outbreak of so-called Snowden Affair in 2013.

The release of hundreds of thousands of classified documents by a whistleblower working as an NSA contractor revealed the challenges concerning the scope and character of the surveillance measures that had been imposed by the agency. The public was informed about secret interception programs which expanded the powers of the executive branch and showed a lack or ineffectiveness of their oversight and control by the legislative and judicial branches. Although the leaked documents referred mostly to the intelligence-gathering activities of the NSA, they presented potential violations of the constitutional rights of U.S. citizens, who had been subject to almost unlimited surveillance legitimized by the government’s War on Terror. People realized that they could be subject to surveillance measures effected both by the government and private entities which were able to collect enormous amount of data using access to online sources.¹⁶ Consequently, the Snowden Affair amplified the political and public debate over the scope of executive surveillance powers, as well as the need to apply controlling measures which would assure greater transparency in the government’s activities.¹⁷

As a result of the events and processes described in the foregoing, in 2024 the United States may be considered a surveillance state, or a secret surveillance state, or a national security surveillance state, having established a huge intelligence and law enforcement network designed to collect an unlimited amount of information and data about individuals, social groups, institutions, and political organizations and their leaders. The government claims that the main purpose of the practice of broad interception is connected with the need to protect domestic and national security, to prevent or investigate crimes, and, generally, to effectively pursue the policy of providing safety to the country and its citizens. However, at the same time the programs of massive surveillance in question go far beyond their initial purposes, raising concerns over the scope of the rights and freedoms of individuals. This gives researchers an attractive topic to analyze, but as citizens we feel more worried about the consequences of this overwhelming culture of surveillance. To paraphrase David Lyon, this involves not only watching as a way of life but also surveillance as governance.

The Scope of the Research

The analysis of the history of government surveillance in the United States demands a dual approach to the issue, as two types of surveillance policy have been put in place by the government: the domestic and the foreign. The first of these is comprised mainly of the investigative measures applied by law enforcement agencies in criminal procedures against suspects and defendants, but also, as history shows, of eavesdropping on political opponents and selected social groups, aimed at maintaining power and control. Foreign surveillance, at least theoretically, refers to all the measures imposed on non-U.S. citizens by intelligence agencies with regard to foreign operations or activities which threaten national security. The surveillance of foreigners may lead, however, to initiatives which indirectly, or sometimes even directly, affect U.S. citizens, raising concerns over its scope and character. In both cases, surveillance should be understood as the development and imposition of tools which help the authorities to gather information and data that allow the government to pursue goals which could be broadly defined as keeping the country and its citizens secure, on the one hand, and assuring that their rights and freedoms are not violated on the other.

Surveillance is about power, therefore the knowledge the government gains from collecting data on citizens or foreigners allows for more effective policy, strengthening, at the same time, the competences of the surveilling institutions. Although ‘the government’ refers to all subjects involved in the process of governing, the reality of the politics of surveillance indicates that the biggest beneficiary of the expansion of power is the executive, often at the expense of the two other branches, the legislative and judicial. Regardless of the relationships between the three branches it is the government, broadly understood, that imposes surveillance measures, thus strengthening its powers over people who are forced to experience a limited protection of their constitutional rights. All of this leads to the conclusion that such processes may occur effectively only if the government finds a proper interest it should protect, being able, temporarily or permanently, to restrict the individual freedoms guaranteed by the supreme law of the land. Therefore, the secret of the successful imposition of surveillance measures lies not only in their effective implementation by the government in its policies, but, most importantly, in the proper legitimization of the politics of surveillance on the part of the authorities which can justify infringements of the rights of the people. That is why my research will focus mainly on the issue of the legitimacy and justification of government surveillance policies in the United States in the 20^th and 21^st centuries, as I believe this is the key to understanding the direction of travel of American policies in said period, as well as a chance to understand the sources and outcomes of institutional and political relations within the government.

Before presenting the methodology and the main research questions, it seems crucial to observe that the topic of surveillance has been extensively analyzed in recent scholarly literature. In the aftermath of the Snowden affair, research was conducted regarding surveillance imposed by the U.S. government in general, or by one of its three branches, with a focus on the concrete institutions or agencies responsible for conducting or controlling surveillance procedures, such as the FBI, CIA, or NSA. Despite the fact that the majority of the studies have concerned the relationship between vital values of American democracy which were in conflict, such as freedom versus security, security versus privacy, the right to know versus privacy, or transparency versus secrecy¹⁸, all these conflicts had one thing in common: they were the product of institutional factors determined by the scope of powers of the U.S. government. Some scholars focused mainly on the institutional analysis of U.S. surveillance policies, but most of the research has pertained to the historical and contemporary analysis of government agencies equipped with the power to conduct domestic or foreign surveillance¹⁹. It comes as no surprise that the most discussed institution has been the NSA²⁰, but research has also been carried out regarding the surveillance policies of the CIA²¹, as well as the FBI.²² Even such limited analysis of the surveillance policies of concrete governmental institutions had at least one thing in common: a broader reference to the role of presidential administrations, or the executive branch in general, in building, preserving, and defending a complex system of secret surveillance aimed at providing safety and security to the United States and its citizens.

Considering this significant scholarly interest in the post-Snowden surveillance reality, one can also find research concerning the relationship between the executive, legislative and judiciary with respect to the U.S. politics of surveillance; however, the analysis of the character of the principle of the separation of powers and the scope of the checks and balances system has rarely been the main research goal. For various experts on the American political system and the Constitution, it was obvious that the system revealed by Snowden uncovered a secret web of programs and activities of the federal executive which were illegal and remained uncontrolled by Congress and the courts, thus affecting the separation of powers doctrine.²³ Some researchers placed the responsibility for the existence of such a secretive surveillance state on certain presidential administrations²⁴, some tried to find the explanation for temporary violations of the rights and freedoms of individuals in the state of emergency stemming from the threat of terrorism²⁵, while others explained that presidents (and governmental agencies) acted in accordance with the Constitution.²⁶ For many, it was the Fourth Amendment – its text and meaning – which played the role of the main constitutional reference point in the analysis and interpretation of the proper scope of government surveillance powers and the right to privacy of American citizens.²⁷

The analysis of post-Snowden research on U.S. government surveillance provides a few general findings concerning its scope and character. First, the vast majority of scholars have focused on foreign rather than domestic surveillance, although some research findings led to the analysis of government surveillance in a broader context. Second, the most often applied research methods were institutionalism, providing for the analysis of certain governmental institutions responsible for imposing surveillance policies, and other actors politically involved in the process, and constitutionalism, focusing on of the meaning and scope of constitutional values and provisions regarding government surveillance. In that context, it was important to determine the proper constitutional protection of the rights of individuals vis-à-vis the powers of the authorities which increased due to the imposition of surveillance measures. Third, the analysis of the surveillance powers of the executive led to scholarly debates on the tensions between secrecy and transparency, or security and freedom, which – in a broader perspective – raised concerns about the state of American democracy and the rule of law. Taking that into consideration, and not neglecting the up-to-date research on government surveillance in the United States, I would like to apply both institutional and constitutional analyses to the issue, focusing on the Supreme Court’s adjudication regarding domestic and foreign surveillance. However, the proposed analysis will not simply refer to the outcomes of SCOTUS judgments in surveillance cases, but rather examine the arguments used by the justices in majority, concurring, and dissenting opinions from the perspective of the potential legitimization of government policies in this sphere.

Regardless of whether they adopt a negative or positive approach towards the scope of government surveillance in the United States, hardly any researcher has focused on constitutional justifications of surveillance policies stemming from the early Supreme Court decisions, which, for obvious reasons, did not concern national surveillance powers. During their analysis of the development of national security surveillance since the 1940s, scholars have most often focused on SCOTUS adjudication from the Cold War era concerning the powers of government in implementing national security policies, and, more recently, on the early 21^st century precedents determining the constitutionality of the post-9/11 policies of the Bush administration²⁸. Others, searching for the constitutional foundations of surveillance policies, have invoked concrete parts of the documents which – directly or indirectly – related to the powers of government, or quoted the statements of the Founding Fathers about the role of national government vis-à-vis state jurisdictions²⁹. No study, however, has tried to explain the scope of government surveillance with reference to one of the concepts presented by Chief Justice John Marshall in the 1819 Supreme Court decision in McCulloch v. Maryland – the ‘‘legitimate end’’ approach.

One may ask why government surveillance should be analyzed from the perspective of an old SCOTUS precedent which, even indirectly, does not relate either to domestic or foreign surveillance policy. Obviously, the main topic of McCulloch concerns the functioning of the central bank and political and economic relations between the federal government and the states in the early times of the Republic, with no direct references made to the problems faced by the 20^th or 21^st century administrations pursuing their surveillance policies. However, the meaning of the rationale in McCulloch should not be read only from its traditional understanding – as a basis for determining the scope of federal-state relations – but rather from a broader perspective, as one of the fundamental concepts in American constitutionalism and one of the most influential means of constitutional interpretation used in U.S. history.