Some notes on surveillance and national security

Jill Lepore, in her excellent examination of the current state of surveillance that we languish in, made this remark in reference to Jeremy Bentham’s essay  On Publicity:

““Without publicity, no good is permanent: under the auspices of publicity, no evil can continue.” He [Bentham] urged, for instance, that members of the public be allowed into the legislature, and that the debates held there be published. The principal defense for keeping the proceedings of government private—the position advocated by those Bentham called “the partisans of mystery”—was that the people are too ignorant to judge their rulers.”

To paraphrase, according to Bentham, it wasn’t previously that that citizens should know what their government was doing because they wouldn’t be smart enough to understand and evaluate the decisions made by their leaders.

Taking this further, pairing it with Daniel J. Solove’s comments in his book Nothing to Hide, he takes to task the judges that defer to executive power in cases of surveillance and national security in his chapter “The Danger of Deference” and specifically the section “Does the Executive Branch Have Greater Competence in Security”:

“Judge Richard Posner argues that judges should defer to the executive branch when it comes to assessing security measures because judges ‘aren’t supposed to know much about national security.'[footnote available in link]”

As Solove continues in the next paragraph, “The problem with deference is that, historically, the executive branch hasn’t always made the wisest national security decisions.”

Not only are we habituated as citizens to accept the role and authority of the executive branch on matters of national security (which, we now know, involves our own surveillance), but so are our judges, which could explain why FISC has turned out to be little more than a rubber stamp when it comes to approving secret requests for data from the various technology and communications companies that we entrust with our personal data.

 

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