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