"The Dangers of Surveillance." Neil M. Richards, Washington University in Saint Louis-School of Law, March 25, 2013. Harvard Law Review, 2013.
[S]urveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.
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[W]hile government regulation might be one way to limit or shape the growth of the data industry in socially beneficial ways, governments also have an interest in making privately collected data amenable to public-sector surveillance. In the United States, for example, the Communications Assistance for Law Enforcement Act of 1994 requires telecommunications providers to build their networks in ways that make government surveillance and interception of electronic communications possible.
[S]urveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.
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[W]hile government regulation might be one way to limit or shape the growth of the data industry in socially beneficial ways, governments also have an interest in making privately collected data amenable to public-sector surveillance. In the United States, for example, the Communications Assistance for Law Enforcement Act of 1994 requires telecommunications providers to build their networks in ways that make government surveillance and interception of electronic communications possible.
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Scholars working in surveillance studies have explored the phenomenon of surveillance in all of its contemporary complexity, going beyond the Panopticon to consider private surveillance, the relationships between watchers and watched, and the wide variety of dangers that modern surveillance societies raise.
Scholars working in surveillance studies have explored the phenomenon of surveillance in all of its contemporary complexity, going beyond the Panopticon to consider private surveillance, the relationships between watchers and watched, and the wide variety of dangers that modern surveillance societies raise.
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[S]urveillance has a purpose, but in the modern era this purpose is rarely totalitarian domination. All the same, most forms of surveillance seek some form of subtler influence or control over others. Even when surveillance is not Orwellian, it is usually about influencing or being able to respond to someone else’s behavior.
[S]urveillance has a purpose, but in the modern era this purpose is rarely totalitarian domination. All the same, most forms of surveillance seek some form of subtler influence or control over others. Even when surveillance is not Orwellian, it is usually about influencing or being able to respond to someone else’s behavior.
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The bottom line about surveillance and persuasion is that surveillance gives the watcher information about the watched. That information gives the watcher increased power over the watched that can be used to persuade, influence, or otherwise control them, even if they do not know they are being watched or persuaded.
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Many kinds of surveillance are routinely used to sort people into categories. Some of these forms of sorting are insidious...[C]onsider the power that data-driven marketing gives companies in relation to their customers. The power of sorting can bleed imperceptibly into the power of discrimination.
The bottom line about surveillance and persuasion is that surveillance gives the watcher information about the watched. That information gives the watcher increased power over the watched that can be used to persuade, influence, or otherwise control them, even if they do not know they are being watched or persuaded.
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Many kinds of surveillance are routinely used to sort people into categories. Some of these forms of sorting are insidious...[C]onsider the power that data-driven marketing gives companies in relation to their customers. The power of sorting can bleed imperceptibly into the power of discrimination.
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The power to treat people differently is a dangerous one, as our many legal rules in the areas of fair credit, civil rights, and constitutional law recognize. Surveillance, especially when fuelled by Big Data, puts pressure on those laws and threatens to upend the basic power balance on which our consumer protection and constitutional laws operate.
The power to treat people differently is a dangerous one, as our many legal rules in the areas of fair credit, civil rights, and constitutional law recognize. Surveillance, especially when fuelled by Big Data, puts pressure on those laws and threatens to upend the basic power balance on which our consumer protection and constitutional laws operate.
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[W]hat sociologists call “sorting” has many other names in the law, with “profiling” and “discrimination” being just two of them.
[W]hat sociologists call “sorting” has many other names in the law, with “profiling” and “discrimination” being just two of them.
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Democratic societies should prohibit the creation of any domestic surveillance programs whose existence is secret. In a democratic society, the people, and not the state apparatus, are sovereign.
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[B]ecause of its relationship to First Amendment values and political freedom, surveillance of intellectual records — Internet search histories, email, web traffic, and telephone communications — is particularly harmful. In practice, this means that surveillance by government that seeks access to intellectual records should be subjected to a high threshold before a warrant can issue.
[B]ecause of its relationship to First Amendment values and political freedom, surveillance of intellectual records — Internet search histories, email, web traffic, and telephone communications — is particularly harmful. In practice, this means that surveillance by government that seeks access to intellectual records should be subjected to a high threshold before a warrant can issue.
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The technological, economic, and geopolitical changes of the past twenty years have whittled away at those rules, both formally on their substance (for example, the Patriot Act and the expansion of National Security Letter jurisdiction) and in practice (for example, the pressure that the technological social practices of the Internet have exerted on privacy).
The technological, economic, and geopolitical changes of the past twenty years have whittled away at those rules, both formally on their substance (for example, the Patriot Act and the expansion of National Security Letter jurisdiction) and in practice (for example, the pressure that the technological social practices of the Internet have exerted on privacy).
