Balkin: The Public Private “Handshake” and the National Surveillance State

My greatest concern about the collection of personal information by search engines, web 2.0 services, transportation systems and the like isn’t that certain individual companies happen to own a slice of my data, nor that these slices are increasingly being aggregated by information brokers like Choicepoint. Rather, my greatest concern is the increasing ease and frequency of such data being shared (voluntarilly or not) with the state. This Washington Post article describes how the government is increasingly turning to data mining of privately-collected information to meet its informational surveillance needs, something that Jack Balkin decries as the increasing public private “handshake” in the service of a national surveillance state:

This form of public-private cooperation (or in many cases public purchase of information from private sources) allows the government to do an end-run around the Fourth Amendment’s prohibitions on invasion of privacy. The reason is that the state is not doing the data collection; it is only purchasing information already collected and collating the results with other information it possesses. As the article explains, this information can be used for far more than protecting national security; it can be used for ordinary law enforcement, or even to find teenagers who would be most willing to join the military. Once the information is available to the government for purchase and collation, and absent privacy laws prohibiting its use, there is no particular reason for government not to use data mining for as many different policy purposes as possible. If the government thinks it would be useful to know the preferences, tastes, habits and tendencies of its citizens for any reason of governance, it will eventually attempt to find out and make use of the information if it can do so at reasonable cost, unless the law prevents it. And the digital revolution, of course, makes it increasingly possible (and relatively inexpensive) to do so.

Put another way, when collection and collation become major techniques of governance, we will need methods of accountability for these practices. And that means that contracts and practices that are currently classified and kept out of the public eye will have to be subjected to some form of scrutiny and accountability, either by the public or by some independent agency. Otherwise the National Surveillance State, like all well meaning forms of governance, will swallow up our liberties in the name of serving the public interest and getting the job done.

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