Sexual surveillance may get our attention, but in our digital networked society, in which many of our documents are stored in the cloud, secret government surveillance powers are vastly broader than the power to be an electronic Peeping Tom. Today, the U.S. government has a wide variety of means of secretly watching and searching the people who live in the United States, whether they are citizens, permanent residents, or visitors.
How did we get to a place where secret government surveillance seems both omnipresent and unavoidable? It may be hard to believe these days, but when the Internet first jumped into the public consciousness in the mid-1990s, it was touted as a realm of anarchy and personal empowerment, a tool of freedom rather than of oppression.[6] At the time, the specter of always-on secret surveillance was unthinkable for a variety of technical, political, and legal reasons. Such surveillance was technologically impossible in a pre-broadband world of modems and computers that were usually not connected to the network and in which the Cloud was a dream of technologists and science fiction writers. It was practically impossible, because of the high costs of in-person surveillance. It was politically impossible, too, with many politicians having first-hand memory of the totalitarian regimes of the Axis Powers. Legally, too, the law was settled that the government needed to get a warrant before it tapped a phone, searched papers, or intercepted an email.
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Some of the tools for this kind of surveillance already exist, and are being used tens of thousands of times each year to engage in secret searches. The federal government, for example, has substantial powers to engage in secret surveillance of communications and other data held by trusted intermediaries, usually technology companies. Unlike an old-fashioned physical search of a home for letters, demands placed on these trusted intermediaries are much easier to conceal. While it is difficult for the government to search a home for letters, diaries, or other documents without the homeowner noticing, it is much easier for it to secretly access digital communications. In addition, unlike paper communications records, which are physical and hard to copy or remove secretly, electronic records by their nature facilitate the making of unlimited perfect copies with ease.
From this perspective, we can see why secret government searches are so menacing to First Amendment values, and why injunctions of indefinite duration that protect secret searches are of dubious constitutionality under well-settled First Amendment law. The gag orders that prevent companies from letting their customers know that their records are being sent to the government prevent willing speakers (the companies) from communicating with willing listeners (the suspects) and the public at large. While it is plausible that there is a government interest in investigations that would justify a short-term delay in notification of suspects in order to prevent, for example, the destruction of evidence or the completion of a discrete investigation, this scenario does not accurately describe the current state of secret searches enjoined by gag orders. In litigation against the federal government alleging that secret searches under federal electronic surveillance law violate the First Amendment, Microsoft presented evidence that it received thousands of requests each year for customer data accompanied by legal orders silencing it from speaking about the requests, and that two-thirds of these injunctions had an indefinite duration.[55]
At the outset, however, I want to be clear that it is not my argument that government surveillance has no place in a digital democracy. The criminal and existential risks that are often used to justify surveillance are real, and are threats to democracy themselves. But the evidence seems undeniable that unchecked or insufficiently-checked secret surveillance can also threaten democratic self-government and political liberties are sometimes taken for granted. We must chart a delicate path between these risks, and the four principles that follow are offered as an initial plan for how to do it.
In updating our laws to ensure they continue to reflect and protect our fundamental civil liberties in digital contexts, we must ensure that First Amendment rights and values are protected as well as Fourth Amendment ones. As discussed earlier, secret government searches of digital information raise two distinct challenges to First Amendment values.
The second challenge posed by secret government searches is their threat to intellectual privacy. The awareness that our reading, searching, browsing, and video-watching activities might not be private chills our willingness to engage, freely and fearlessly, with ideas that others might think to be dissident, dangerous, deviant, or just plain eccentric.[70] I have also written at length about this problem (and possible solutions to it), but the basic solution must be to use a combination of legal tools to ensure that when people read, think, and engage in these and other processes of intellectual and personal exploration and wondering, they have meaningful guarantees that their mental wonderings and wanderings are not being tracked by government or corporate surveillance systems.[71] Our digital society is increasingly characterized by informational distrust, whether distrust of the rules that govern access to ostensibly private personal information,[72] or distrust in the bias or falsity of information received from online media.[73] One of the great challenges of our time will be to use law and other tools to build and restore trust in the structures through which information about ourselves and our society is collected and used. Secret government searches are but one part of this problem, but bringing them within the rule of law will be an important part of the solution. 2ff7e9595c
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