It’s Not About Edward Snowden

Whether Edward Snowden is or is not a capulcu, a looter, as Erdogan called the folks protesting against the paving of their paradise in Istanbul, is not the main thing now. It was interesting to hear him speak his piece, but we ought to move on to what matters.

It’s about us, and the surveillance regime we countenance, or detest, or debate.

Jack Balkin, writing about “The Constitution and the National Surveillance State” in 2006, says that the surveillance state “is a way of governing. It is neither the product of emergency nor the product of war. . . . (It) will become as ubiquitous in time as the familiar devices of the regulatory and welfare states.” It goes beyond the panoptic model in that “analyzing and drawing connections between data” largely supplants “watching or threatening to watch.” The ever-lower cost of digital storage “portends the death of amnesia,” as the surveillance state becomes “the State that Never Forgets.” Balkin hopes that the U.S. will develop the habits of a democratic information state–information gourmandism and information philanthropy–rather than those of an authoritarian information state–information gluttony and information miserliness. Rather than trying to rescue the Fouth Amendment, which he seems to see as an almost lost cause, he proposes Congressional “superstatutes” to regulate data collection and institutionalize governmental amnesia. He asserts that meaningful oversight of the executive is only likely under divided government, and isn’t easy even then. Judicial pushback against executive assertions of stste secrecy seems dicey. Oversight within the executive branch, according to Balkin, can be crucial. And “we should construct surveillance architectures so that government surveillance is regularly recorded and available for audit by ombudsmen and executive branch inspectors.”

That was 2006. Funny how it played out kinda sorta that way, but with Edward Snowden as the 29-year-old outsourced quasi-private Booz Allen auditor and inspector. Who the heck did he think he was? Who cares. Mess or opportunity? Now we are all the auditors and inspectors.

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