Minnesota Law Review

Essay, The Constitution in the National Surveillance State

During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State.

In the National Surveillance State, the government uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State—a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information.

The War on Terror may be the most familiar justification for the rise of the National Surveillance State, but it is hardly the sole or even the most important cause. Increasing use of surveillance and data mining by public and private entities is a predictable result of accelerating developments in information technology. In fact, most surveillance in the National Surveillance State is likely to be in private hands.

The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have. The National Surveillance State poses three major dangers for our freedom. The first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The second danger is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. Private power and public-private cooperation pose a third danger. Because the Constitution in general does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it, thus circumventing constitutional guarantees. Corporate business models, in turn, lead companies to amass and analyze more and more information about individuals in order to target new customers and reject undesirable ones.

The Administrative and Welfare State raised problems not only for the Constitution, but also for the rule of law itself. The same is true for the National Surveillance State. Changing methods of government demand new strategies to preserve constitutional values and democratic self-government. We mastered at least some of the problems caused by the rise of the Administrative and Welfare state; we must hope that we can do so the same for the National Surveillance State, which is already here.

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