The Surveillance State You No Longer See

The most effective surveillance state may not be one with a government camera mounted on every street corner.

It may be one in which surveillance has become so thoroughly woven into ordinary life that we no longer recognize it as surveillance.

You wake up carrying a phone that generates records about where it connects to the cellular network. You drive a modern automobile filled with computers and communications systems. You go to work, where employers maintain records about employees. You buy something with a credit card and create another transaction record. You deposit money at a bank. You order something online. You send an email. You search the Internet. You walk into a store covered by security cameras.

Individually, each system can have a perfectly reasonable purpose.

Together, they create something historically extraordinary: a society in which enormous portions of a person's life leave permanent or semi-permanent records in computers operated by organizations other than that person.

And government does not necessarily have to build the entire surveillance infrastructure itself.

Surveillance Has Been Outsourced

When people imagine a surveillance state, they often imagine government agents secretly following citizens.

That model is becoming obsolete.

The modern state can exist alongside an enormous privately operated information infrastructure. Banks know about financial transactions. Telecommunications companies generate communications and location records. Employers maintain employment records. Internet companies maintain account and activity data. Payment processors know where money moves. Retailers maintain purchasing records.

Government access to these records varies enormously. Some information requires a warrant or other legal process; some industries have statutory reporting requirements; other information may be voluntarily supplied under particular circumstances.

The distinction is important.

It would be inaccurate to say that every business is secretly spying for the government.

But it is equally mistaken to ignore the architecture that has developed: private institutions collect tremendous quantities of information, while government possesses numerous legal mechanisms for obtaining some of it.

The result can resemble a distributed surveillance system even though no single organization designed the whole thing.

Your Bank Is Also Part of a Reporting System

Consider banking.

The Bank Secrecy Act requires financial institutions to keep certain records and report specified transactions to the government. Banks must report cash transactions exceeding established thresholds and file reports concerning qualifying suspicious activity.

The purpose is understandable: combating money laundering, tax evasion, terrorist financing, fraud, and other crimes.

But look at the system from the citizen's perspective.

The institution holding your money is not merely providing banking services. Under particular circumstances, it is legally required to provide information about financial activity to the government.

Other businesses can have reporting obligations as well. A trade or business that receives more than $10,000 in cash in a transaction or related transactions generally must file Form 8300 with the federal government.

The question is therefore bigger than whether any individual reporting requirement is reasonable.

The question is what happens when hundreds of individually justified information systems accumulate around every citizen.

The Phone in Your Pocket

The cellphone illustrates the transformation especially well.

You do not have to turn on a hypothetical government tracking application for your movements to generate records.

Phones communicate with cellular infrastructure as part of their normal operation. In Carpenter v. United States, the Supreme Court confronted the government's acquisition of historical cell-site location information and recognized the extraordinary privacy implications of records capable of chronicling a person's movements.

This represents a fundamental change from the physical world of previous generations.

Following someone continuously once required people, vehicles, time, and money.

Today, records capable of reconstructing substantial portions of a person's activities can already exist before the government becomes interested in that person.

That difference matters.

The old question was:

“Can the government afford to watch everyone?”

The modern question may be:

“Does the government need to watch everyone when so much information has already been collected?”

When Everything Becomes an Offense

Surveillance becomes more consequential when combined with another development: the enormous expansion and complexity of criminal and regulatory law.

Civil-liberties attorney Harvey Silverglate captured this problem provocatively in the title of his book Three Felonies a Day: How the Feds Target the Innocent.

The title should not be mistaken for a scientifically established statistic. There is no solid empirical demonstration that the average American literally commits exactly three felonies every day.

Silverglate's underlying argument is more important than the number.

His contention is that federal statutes and regulations have become so numerous, complicated, broad, and sometimes ambiguous that ordinary people may violate laws without realizing that their conduct potentially exposes them to criminal liability.

That changes the relationship between surveillance and law.

In the traditional conception of law enforcement, authorities observe evidence suggesting that a specific crime occurred and then investigate to determine who committed it.

But imagine reversing that process.

First choose the person.

Then collect his financial records, communications, transactions, business activities, tax records, Internet activity, and years of electronic history.

Then start looking for the violation.

Those are fundamentally different models of law enforcement.

When Everyone Is Potentially Guilty

A free society depends not merely upon having laws, but upon having laws that ordinary people can reasonably understand and obey.

If criminal law becomes sufficiently vast and complicated, perfect compliance becomes increasingly difficult.

Combine that with comprehensive record keeping and another possibility emerges:

The practical protection of the citizen is no longer simply, “I haven't committed a crime.”

It increasingly becomes, “Nobody with sufficient authority and resources has decided to examine my life closely enough.”

That is a dangerous distinction.

A society in which practically everyone has unknowingly violated some obscure provision gives enormous discretion to whoever decides whom to investigate and which violations to prosecute.

Selective enforcement then becomes almost as important as the law itself.

The critical question becomes not merely:

What did you do?

It becomes:

Why did the government decide to look at you?

Flock Is Not the Wall. It Is Another Brick.

Today, many people are beginning to notice automated license-plate-reader networks such as Flock Safety. Cameras can record license plates and associated vehicle information as cars travel through communities.

That deserves public scrutiny. But focusing exclusively on Flock risks missing the larger picture.

Flock did not create the surveillance society. It arrived after much of the infrastructure was already standing.

Your financial transactions were already generating records. Your cellphone was already interacting with towers and producing location-related data. Your Internet activity was already passing through private infrastructure. Businesses were already operating security cameras. Governments already maintained enormous collections of tax, licensing, property, court, vehicle, and other records.

Then another camera went up beside the road.

People see that camera.

They can point to it.

They can photograph it.

They can attend a town meeting and demand to know why it is there.

That visibility makes the camera an obvious symbol of surveillance.

But perhaps Flock is not the wall. It is simply one of the last bricks added to a wall that has been enclosing us for far longer than most people realize.

The earlier bricks arrived individually and usually with reasonable explanations.

This database prevents fraud.

That reporting requirement catches money laundering.

This camera prevents theft.

That record helps administer taxes.

This location information makes your phone work.

That account information protects customers.

One brick does not make a prison wall.

Neither do ten bricks scattered around a field.

The danger emerges when the bricks are connected.

Financial records, location information, license plates, communications metadata, employment records, government databases, commercial databases, Internet accounts, cameras, and transaction histories can collectively reveal far more about a person than any individual system could.

That is why arguing exclusively about Flock misses the larger civil-liberties question.

The question isn't simply whether one more camera should be allowed. The question is how many bricks can be added before we finally admit that there is a wall.

The Surveillance State Doesn't Need a Control Room

This is what makes the modern surveillance state difficult to recognize.

There does not have to be a giant government database containing every detail of every person's existence.

There does not have to be an agent assigned to every citizen.

There does not even have to be a deliberate master plan.

The infrastructure can develop piece by piece.

One database exists to prevent fraud.

Another exists to process payments.

Another exists to operate cellular networks.

Another exists for taxes.

Another exists for employment.

Another exists for advertising.

Another exists for public safety.

Another exists because regulations require records to be retained.

Each component can have a legitimate justification.

But eventually society should ask what the components become when connected.

The frightening surveillance system is not necessarily the one deliberately constructed overnight.

It may be the one assembled gradually over decades until almost every significant activity produces a record somewhere.

Surveillance Becomes Invisible When It Becomes Normal

That may be the greatest danger.

We still recognize a government agent following someone down the street as surveillance.

We do not necessarily think about the dozens of databases recording pieces of that same person's life.

We recognize someone opening our mail as an intrusion.

We barely notice the electronic records generated by communicating, traveling, purchasing, banking, working, and simply carrying a phone.

The machinery has become ordinary.

And what becomes ordinary eventually becomes invisible.

The important civil-liberties question is therefore not whether every bank, employer, business, or technology company is secretly working for the government. They are not.

The more important question is whether we have created a society in which so much information is routinely collected, retained, reported, and legally obtainable that investigating a person's past becomes dramatically easier once authorities decide that person deserves attention.

Combine that capability with an enormous body of criminal and regulatory law and Harvey Silverglate's warning takes on a broader meaning.

The danger is not necessarily that everyone is being prosecuted.

The danger is that almost everyone leaves a detailed trail, almost everyone is subject to an enormous body of rules, and enforcement necessarily becomes selective.

A surveillance state does not have to watch you every second.

It only needs enough information waiting somewhere when someone decides you are worth looking at.

Flock may be the camera that finally made you notice the wall. But the wall was being built long before Flock arrived.