By Simon Chesterman, Global Professor and Director of the New York University School of Law Singapore Program, and Vice Dean and Professor of Law at the National University of Singapore. His book, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, is available now from Oxford University Press.
The death of Osama bin Laden has started a debate about whether and how the United States can extricate itself from its military commitments in Afghanistan and Iraq. It is only a matter of time before public attention turns to whether the expansion in government surveillance powers over the past decade should also be rolled back.
Don’t hold your breath.
Edward Shils, a sociologist writing soon after the McCarthy hearings had shaken the United States, argued that liberal democracy depended on protecting privacy for individuals and denying it to government. Yet the following half century has seen precisely the opposite happen: individual privacy has been eviscerated while governments have become ever more secretive. This accelerated under the Bush Administration after September 11 and there has been no serious reversal under President Obama.
Major reform in the regulation and oversight of intelligence services depends on scandal, with predictable results depending on whether that scandal is failure to prevent an attack (Pearl Harbor, 9/11), or overzealous efforts to prevent one (a charitable view of the excesses of the 1960s that culminated in Watergate).
The impetus for increased oversight has tended not to be crusading judges or principled legislators but relentless journalists. The history of Watergate is now well known, but to this we may add the efforts of The New York Times and The Washington Post to uncover torture, extraordinary rendition, and — belatedly — warrantless electronic surveillance under the Bush Administration.
Those were minor victories, but the overall trend has continued in the direction of greater national security powers for the government and fewer protections for individuals.
Law and lawyers have always struggled to respond to such challenges, a history reflected in the U.S. Constitution — one of the oldest constitutions still in force.
The Constitution was crafted with an eye to limiting the powers of centralized authority through checks and balances. The liberties that it embraces reflect the time in which it was written, however. In the late eighteenth century, physical surveillance consisted of following people, eavesdropping on them, or examining their property. To limit such surveillance the Fourth Amendment required that searches and seizures by government be “reasonable.” Psychological surveillance was possible through forced testimony or torture: the Fifth and Eighth Amendments forbade compelled self-incrimination and cruel and unusual punishment. A third mode of surveillance used at the time was the record and dossier system of the European monarchies that controlled the movement of the population and the activities of “disloyal” groups. In the United States the decision not to employ a passport or dossier system — for practical as well as political reasons — ensured a degree of freedom unusual in the industrializing world.
Until the end of the following century, such provisions were seen as adequate. The development of the telephone in the 1880s and the microphone in the 1890s challenged the paradigms that had emerged and the ability of law to adapt to new technological realities. Notably, the Fourth Amendment only applies to searches and seizures, not other types of investigation. An investigative method is only considered a “search” if it invades a “reasonable expectation of privacy”. Tapping a telephone or using a hidden microphone is a search, for example, but observation by an undercover agent who is in the room during a conversation is not — even if that agent is transmitting the conversation. Government inspection of bank records is not a search, as the customer has made such information available to the bank and its employees. Similarly, installing a “pen register” that records all numbers dialed from a telephone line is not a search — though listening to the calls would be — as customers voluntarily convey these numbers to the telephone company when using the device.
The more recent explosion of electronic communications in which far more data are shared with relevant companies, such as the metadata that travel with an e-mail, means that ever greater information is revealed even without opening the actual missive.
Some of these gaps have been filled by legislation, but the focus has typically been law enforcement; the application of constitutional and legislative protections to the growing intelligence community has not always been clear. The Right to Financial Privacy Act of 1978, for example, gave customers a measure of privacy in their bank records that was more than the Supreme Court had offered under the Fourth Amendment, but included a section on “special procedures” that exempted government agencies engaged in intelligence or counter-intelligence activities.
The excesses and abuse revealed in the Watergate scandal led to significantly greater scrutiny of U.S. intelligence services. Yet when the nation suffered the most lethal attack in its history, the view quickly formed that U.S. vulnerability could at least in part be blamed on excessive constraints on its spies.
Will the pendulum swing back now if the terrorist threat is seen to have abated? In the absence of a major scandal of abuse, history suggests not.