Deputizing Homeland Security and Omniveillance

December 7th, 2010

Professor Jon Michaels has an interesting piece on SSRN about how the government has effectively deputized Americans following 9/11 to help guard against all sorts of terrorist attacks. Here is the abstract of Deputizing Homeland Security:

In the wake of the attacks of September 11, 2001, private actors have come to occupy a remarkably prominent place in efforts to identify and counter threats of domestic terrorism. Today, seemingly no transaction, whether social, political, or economic, is comfortably beyond eye or earshot of the newly deputized national security apparatchiks. Corporations representing all of the major retail and service industries – including telecommunications, finance, and commercial travel – are routinely turning over reams of information to the government. And, it’s not just corporate data dumps; it’s also doormen, pilots, truck drivers, retail clerks, repairmen, and parcel couriers, who have been enlisted by the government, their employers, and even their own unions to detect and report suspicious activities on the ground. Finally, there is the role being played by ordinary folks, who have been bombarded with calls from government officials to do their part to keep America secure.

Four factors help explain this dramatic rise in citizen and corporate participation: first, a post-9/11 demand for greater surveillance and intelligence-gathering capacity; second, a growing comfort with private actors handling sensitive national security tasks; third, a recognition that much of the desired information is easier for private actors to access or acquire in the first place; and, fourth, widespread interest on the part of a patriotic, frustrated public to help.

In particular, Michaels comments on the fact that the government can rely on private entities in order to collect various forms of digitial data–data the government may not be able to obtain by itself due to pesky legal constraints.

Enter our new cadre of private snoops, data crunchers, and (yes) vigilantes. This assortment of “deputies,” some trained and ostensibly commissioned, some solicited as part of a general, mass invitation, and some merely self-declared and possibly unwelcomed, have expanded homeland-security coverage in profound ways. Deputies are force multipliers; as a matter of sheer numbers, a mobilized, vigilant public can reach more broadly than the government, on its own, can. The public does so simply by going about its routine social, civic, and commercial activities in a more mindful manner. Additionally, deputies may have superior physical and electronic access to private spaces and stores of data than government agents have on their own – a function both of there sometimes being greater legal constraints imposed on government agents than on private actors and of the greater caution and reserve people typically exercise when they are interacting with the government, as opposed to when they are engaging with neighbors and merchants, or when they are relying on commercial service providers to facilitate their transactions.

I first wrote about this deputizing phenomenon years ago in the context of Google Street View in Omniviellance:

Additionally, with a subpoena, the government has ready access to a free surveillance network, further imperiling our civil liberties

Who needs to build a surveillance network when Google can do it for free, and a simple subpoena, warrant, or even governmental pressure can reveal the data.

The recent pressure the Government put on Amazon, who was hosting the WikiLeaks servers, supports this argument. The boundary between the public and private sector keeps getting blurrier.