TCS Daily

The Constitution of Surveillance

By Arnold Kling - March 31, 2004 12:00 AM

"What was different in the 20th century? Certainly, the technologies underlying the weapons of mass destruction (WMD) - nuclear, biological, and chemical (NBC) - were powerful, and the weapons an enormous threat. But building nuclear weapons required, at least for a time, access to both rare - indeed, effectively unavailable - raw materials and highly protected information; biological and chemical weapons programs also tended to require large-scale activities.

The 21st-century technologies - genetics, nanotechnology, and robotics (GNR) - are so powerful that they can spawn whole new classes of accidents and abuses. Most dangerously, for the first time, these accidents and abuses are widely within the reach of individuals or small groups. They will not require large facilities or rare raw materials. Knowledge alone will enable the use of them."
-- Bill Joy, "Why the future doesn't need us"

When frequent TCS contributor Glenn Reynolds recently pointed to a new weblog entitled Cluster**** Nation, my mind leaped via free-association to the Department of Homeland Security. Nothing strikes me as more misguided than trying to tackle the problem of small, nimble terrorist organizations with a bureaucratic monstrosity, such as the UN or DHS. Instead of looking into who was to blame for failing to prevent the 9/11 attacks, I would like someone to hold hearings on who was to blame for creating a mega-merger in the name of fighting terrorism.

At some point, we need to think about a rational way to structure government to deal with decentralized threats. This essay is on that topic.

Bill Joy, formerly the top technologist at Sun Microsystems, raised quite a few hackles with his essay, quoted above, on the dangers that exist at the frontiers of modern science and engineering. Virginia Postrel, having written The Future and its Enemies, denounced Joy's essay as "a screed against unpredictable change, a call for a static world, and an assault on commerce and the individual desires it serves. It is the same old attack on the open society, just wrapped in cool clothes."

Joy's proposed solution was a worldwide renunciation of research in such fields as biotechnology, nanotechnology, and advanced computing. Postrel called this idea "childlike and childish."

I, too, disagree with Joy's solution. However, as Postrel and other detractors acknowledge, the problems posed by Joy are real. In particular, I believe that the unprecedented ability of terrorist networks and deranged individuals to commit mass murder represents a fundamental challenge for social architecture.

Diffuse Power

Industrial-era power was mass power. The leaders of World War II measured strength by counting numbers of soldiers, tanks, airplanes, and ship tonnage. Military strength was something that came in large, highly-organized units.

Information-age power is diffuse. When your product can be delivered as bits and your retail presence is a web site, you do not need factories, delivery trucks, warehouses, and stores. Individuals can have impact outside of the context of the mass-power industrial world. Dan Pink, author of Free Agent Nation, likes to point out that it is modern capitalism rather than Marxism that enables workers to own the means of production.

The same technological forces that reduce the barriers to entry for entrepreneurs also make weapons of mass destruction accessible to small organizations. Even if we did not face the threat of Islamic terrorism, we could see massacres committed by a few individuals acting out the "banality of evil." Think of the Columbine killers acting on a scale of 9/11. Imagine the Unabomber with Anthrax.

Organized terrorism falls somewhere in between industrial-age military force and the sort of random, individual threats that could emerge as technology advances further. Terrorist organizations have less "overhead" than nation-states, but they do have some exposed components. They can be disrupted through military attacks and co-ordinated cutoffs of funding. However, this will not be true much longer. In the future, when an isolated terrorist cell or even an individual may be able to access weapons of mass destruction, none of today's tactics for disrupting terrorism will be effective.

What Would Madison Do?

In my view, the only solution to the threat of small-group usage of weapons of mass destruction is comprehensive surveillance. The challenge, as I will describe below, is to design an approach to surveillance that is not itself a danger to life and liberty.

The problem is analogous to the dilemma faced by our nation's founders, such as Thomas Jefferson and James Madison. They knew that the United States needed a central government in order to provide for the common defense. However, they also believed that it is easy for government to slip into tyranny, undermining rather than protecting people's rights. The solution that they developed was a system of checks and balances embedded in our Constitution. The idea was that the powers of one branch of government would be checked by other branches, thereby containing the threat of tyranny.

The Constitution can be viewed as an attempt to balance two risks. One is the risk that the government will be too weak to protect individual liberty and property. The opposite risk is that the government watchdog will turn on its master, becoming the people's oppressor rather than their protector.

Today's surveillance technologies pose an analogous problem. If left unused, they could leave our country vulnerable to mass murder, blackmail and defeat. However, if we casually turn surveillance powers over to existing government agencies, such as the FBI, the risk of abuse is unacceptably high.

Had today's technological conditions been in place 220 years ago, our founders might have provided us with a solution. Instead, we have to try to think along the same lines, and ask ourselves what they might have done in our place.

David Brin's Approach

David Brin, author of The Transparent Society, also believes that the threat of terrorism will pull society in the direction of surveillance. However, he believes that the "push" toward surveillance will be even stronger, in the sense that technological innovation and low cost will inevitably unleash a flood of surveillance equipment. Cheap cameras, miniature radios, and other devices will become pervasive.

For Brin, the question becomes, how can we live with this pervasive surveillance technology? His answer is that we must insure equal access. The worst scenario, in his view, would be if government or corporate elites obtained monopoly access to surveillance technology. Such a monopoly would allow the elites to overpower ordinary individuals, ending freedom and democracy as we know it.

Brin argues that if surveillance technology were treated as public property, like city streets or national parks, then the potential for evil could be contained. He envisions a world in which no one can avoid being watched, so that there is "mutually assured surveillance." Even if I were tempted to be a peeping tom or a stalker, the ability of others to observe my behavior would act to deter and constrain me.

When people argue that surveillance tools should be kept out of the hands of government, Brin argues that this is unrealistic, because officials inevitably view this as hampering their effectiveness. It is more realistic, in Brin's view, that we could strike a deal in which government has access to the best tools to do its job on the condition that the public has access to those same tools.

My concern with Brin's approach is that I think that it requires a citizenry that is well educated and adapted to the environment that he envisions. Before we reach that point, an elite could have used surveillance technology to install a permanent tyranny. Perhaps eventually we will evolve to the transparent society that Brin proposes. For now, however, I believe we need a formal structure to preserve liberty -- a constitution of surveillance, if you will.

Two Agencies

What I propose is to use a Constitutional amendment to create two agencies with authority to use surveillance technology. The Security Agency would have the sole purpose of preventing acts of terrorism. The Audit Agency would have the sole purpose of ensuring that the Security Agency stays within its boundaries.

It is important to keep the two agencies separate. They must not report to the same boss. I would propose that the head of the Security Agency be appointed by the President, and that the head of the audit agency be appointed by the most senior Supreme Court justice who has not been appointed by the current President, with the Chief Justice treated as the most senior justice. Senate confirmation would be required for the head of each agency.

Congress would have additional indirect oversight over the two agencies. Each agency would have a five-person oversight board, with members chosen for staggered ten-year terms. Selection of board members would alternate between the Senate majority leader and the House majority leader. The oversight boards would be required to give annual reports to Congress on the effectiveness of each agency. The oversight board for each agency would have the power to fire the head of that agency.

The Security Agency's mission would be limited to preventing terrorism, and any change of mission would require a Constitutional amendment. No one employed by the Security Agency would be permitted to use surveillance for personal purposes, for political espionage, or for dealing with any crime or threat other than terrorism. To take an extreme case, even if someone were stalking your daughter and threatening to rape and murder her, you could not use access to surveillance information to try and stop it. Penalty for improper use of surveillance technology would be a long prison term.

The Audit Agency's mission would be to make sure that the Security Agency sticks to the rules. The Audit Agency would evaluate the Security Agency's internal policies, procedures, and controls to make sure that they are sufficiently strong to prevent abuse. The Audit Agency would be given irrevocable, 24-hour access to the employees, computers, and records of the Security Agency. The Audit Agency could set any requirements it chose for the Security Agency to provide copies of emails, transcripts of meetings, and so forth. However, the Audit Agency employees would be held liable for any breach of security or privacy that they might commit.

Incidentally, I am not presuming that surveillance of ordinary citizens would be common. Instead, radio technology and wireless networks might be used to track movement of materials, such as chemicals that could be used to make a bomb. Cameras and sensors might report unusual activity in biological or chemical laboratories.

Some individuals identified as high risk, based on behavioral profiles, would be monitored. In order to create the risk profiles, to know whom to watch and whom to leave alone, the Security Agency would need to maintain a database with information on everyone. However, the agency would be required to have policies and procedures that prevent the database from being abused. The auditing of the processes surrounding such databases would be very intense and thorough.

In order to undertake surveillance of ordinary citizens, the Security Agency would have to show that this is necessary and cost-effective. They would have to convince the Audit Agency of this. I am thinking that the head of the Audit Agency would have a very strong libertarian bent -- someone as passionate as the ACLU about freedom of speech. Such sentiments would be welcome in the head of the Security Agency, too, for that matter.

Not the FBI

I would rather this country's surveillance practices be debated up front and governed by a Constitutional process than have them evolve out of existing institutions and practices. What I do not want to see is increased surveillance as conducted by our legacy law enforcement agencies, such as the FBI. The FBI's unfavorable track record includes:

  • A lot of experience with trying to obtain convictions of drug dealers, as opposed to preventing terrorism
  • A history of resistance to external oversight and criticism
  • A predilection to push for maximal surveillance authority

Instead, I want to see a brand new agency, unhampered by the FBI's institutional baggage. There are experts on terrorism in the Bureau who might be hired by the new agency, but only if they do not bring the FBI culture with them.

Start the Debate

I expect the ideas I proposed here to be controversial. Before you post your flaming replies, all I ask is that you read the piece over carefully. Criticize me for what I say, not for what you assume I said.

I do not claim to have all of the answers. However, I think a debate over the constitution of surveillance would be more constructive than a debate over who said what to whom back in 2001.


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