Charlie Hebdo and the Problem of Structural Surveillance

            With the horrifying attacks in Paris yesterday, we were witness, once again, to the remorseless brutality that can arise from extremist thinking that refuses to tolerate the existence of any worldview but its own. As we try to process and mourn the senseless murders of twelve people at the Charlie Hebdo offices, we cannot ignore the fact that the journalists and cartoonists were targeted for their controversial brand of social and political commentary--the sort of free expression that we value and protect as a critical component of a free society.

            But as Juan Cole so aptly pointed out, this attack was likely less about radical religious zealots seeking to censor art and commentary they saw as offensive, but more a cynical attempt to polarize Europeans and artificially create a common political identity to bolster failing recruitment efforts. As Cole put it, these "horrific murder[s] [were] not a pious protest against the defamation of a religious icon," but "an attempt to provoke European society into pogroms against French Muslims, at which point al-Qaeda recruitment would suddenly exhibit some successes instead of faltering" in the face of the vast majority of Muslims who reject such violence in their religion’s name.

            We must all keep this in mind as we begin again to hear calls to widen government surveillance and abandon efforts to reform existing programs in the wake of this attack. This reaction is not unexpected, of course, as it is a venerable political tradition to never let a serious crisis go to waste. We should, however, be especially mindful of the mistakes of our past when considering--and reconsidering--the balance between civil liberties and national security. With the benefit of hindsight, we have looked back in shame at some of the more egregious curtailments of constitutional liberties developed in hasty reaction to national crisis, including the Alien and Sedition Acts, the suspension of habeas corpus, the Palmer raids, the mass internment of Japanese-Americans, and the secret domestic surveillance of "subversives" by the FBI, including that National Lawyers Guild, the NAACP, and Martin Luther King, Jr. Time and again, when these programs have been exposed to fair analysis in our courts, legislatures, and press, we have rejected such measures as poor--and often counterproductive--tradeoffs in the national security balancing act.

            After 9/11, we once again jumped to the conclusion as a nation that civil liberties must be sacrificed in order to keep us safe from a new kind of existential threat. In 2005, for example, we learned of an NSA program, secretly authorized by President Bush in the months following 9/11, which authorized the eavesdropping on millions of Americans without the need for court-approved warrants ordinarily required under the Fourth Amendment. We also began to realize and understand the effects of the USA PATRIOT Act, especially Title II of the Act, which gave increased surveillance powers to the government, including, for example, the surveillance targeting of large numbers of Americans under standards far lower than the "probable cause" requirement for warrants. And in 2013, Edward Snowden leaked top-secret documents to journalists that revealed global mass surveillance programs, economic espionage by government agencies, diplomatic spying, and suspicionless mass data collection against entire populations. It is unlikely that we will know the full extent of these surveillance programs, at least in the near future.

            A key problem with these hastily assembled efforts in the name of national security is their lingering cumulative effect on society, which can remain long after the original program has been abandoned as ill considered. These negative effects are not limited to efforts to combat external threats, but can arise from domestic concerns, as well. For example, the origins of the increasing surveillance capabilities and scope we have seen in our domestic law enforcement agencies can be traced to our nation's decades-long "war on drugs," the emergence of "broken windows" policing methods, and the extension of police activity to include government programs such as social services. While some of these programs have been rejected over the years, some have been approved by our courts, resulting in the gradual institutionalization of a multitude of surveillance programs that have become baked into our social, economic, and governmental systems. This structural surveillance eventually becomes part of the background of our everyday lives, often ignored or approved, so long as we remain unaware of the overall effect it has on our constitutional democracy.

            Our current methods of analysis are not well suited to fully comprehend the negative effects of structural surveillance. Our attentions are naturally drawn to the sort of mass surveillance systems revealed in the Snowden documents, but we tend to ignore the more pedestrian versions of these programs, including near-ubiquitous CCTV, suspicionless stop-and-frisk, and the disruptive and demeaning scrutiny to which we subject recipients of many forms of government assistance. Add to this a war on terrorism continues with no end in sight, where the field of battle now includes our homes and public spaces, and technological advances that enable previously unthinkable surveillance efficiencies, and scope and effects of this structural surveillance will continue to expand, much of it with our tacit approval, until it becomes incorporated into our everyday lives.

            The security of our nation and its citizens are a very real concern. But to quickly sacrifice civil liberties in the face of dangerous ideologues has been shown to yield poorly thought out programs, some of which have left lasting stains on our nation’s history. As we mourn the deaths at Charlie Hebdo, and consider once again the dangers of our world, let us not be too quick to abandon the democratic ideals that allow us to speak freely, to debate openly, to criticize honestly, or, in the words of Justice Brandeis, simply to be let alone. To proceed otherwise will likely leave a residue that will be difficult to later erase with the benefit of hindsight.