We have heard many stories about the surveillance state and its power over the individual. We have heard that the United States has abused its position and its power to its advantage. Many people are outraged at what they believe is illegal behaviour. They believe that the surveillance does not comply with the rule of law, which in turn threatens our safety. Our safety, though, is now bound up with the surveillance. If the surveillance threatens us rather than protects us because it does not comply with the rule of law, then what can we do? Is it a question of the rule of law? Or does the exception that requires surveillance exist outside a legal framework? To the extent that surveillance extends the rule of law, it appears to protect us. However, how do we protect ourselves when surveillance has to go beyond the rule of law?
I explore these concerns with a series of questions. I offer these to clarify some of the issues around the way in which the surveillance, safety and the rule of law interact.
1. Do we want to have the rule of law?
Yes. It protects us and ensures stability needed for prosperity.
2. Do we want the state strong enough to uphold the rule of law?
Yes. If the state cannot accept the rule of law or enforce it, then all other benefits of a decent society are in jeopardy.
3. Do we accept the state may be required to undertake surveillance to uphold the rule of law?
4. Is the state responsible for justice, which the rule of law expresses?
5. Does the surveillance state cover the President of the United States?
6. If the President of the United States is not exempt from the surveillance, should anyone be exempt from it?
7. If surveillance is necessary for the rule of law to flourish, should it be restrained?
8. Have individuals within the various bureaucracies used the bureaucracy for their personal interests contrary to the law?
10. Have they been punished when caught by the programmes for tracking such usage?
12. Are there people hack into other people’s systems and use surveillance against people privately outside the rule of law?
13. Do you want the rule of law to apply to all no matter how technologically sophisticated and powerful they are?
15. Do you want to be kept safe?
16. Do you want the state to keep you safe?
17. Do you as a citizen accept some constraints (such as ID cards, security checkpoints, and police forces) so that public order and public safety can be maintained?
18. Do you accept that there are people who will harm you either directly hacker/mugger or indirectly by intent or indirectly terrorists through criminality?
19. Do you want the state to administer justice if you cannot defend yourself?
20. Even after you die?
21. Do you accept that the surveillance state can extend the rule of law by being able to deal with those who seek to live outside the laws?
22. Do you accept that in a representative democracy we elect people to administer and oversee the laws?
23. Do we elect those people to determine the level of oversight necessary for all government programmes?
24. If there are threats outside the law, must the state be able to act outside the law?
When we look at the threats a state faces and what it must do to keep its citizens safe we see a vast technological challenge. The state has vast resources but it is unable to protect all people all the time from all threats. To protect the public it has to prioritize its threats and the way it responds to those threats. The surveillance by the NSA is focuses on high level and externally driven threats that state and local law enforcement cannot handle.
If a government could not keep its citizens safe, it would lose its legitimacy. We see this in Latvia where the government fell because the building collapse showed the government was incapable of protecting its citizens. They had lost confidence in the government as a result. An important part of the social contract could not be met and this would create a problem of legitimacy. If the government is no longer legitimate, then the rule of law, which supports that legitimacy and expresses it, comes into question. If the rule of law cannot be guaranteed because the law cannot be defended or enforced, we face a situation where order breaks down and anarchy ensues. As long as the state follows the rule of law and the rule of law is respected, the people are safe from the government. If the people are not able or are unwilling to manage the laws that rule them, then is it the government’s fault if they find that they are dissatisfied with their own failure to monitor the laws? The laws are what shape a country. As the United States is a nation of laws to change it you must change the laws.
- New Book on Rule of Law and the European Court (echrblog.blogspot.com)
- Peter Shane Asks: “Can A Secret Court Advance the Rule of Law?” (lawfareblog.com)
- Public safety vs. Personal privacy (publicsafetyorfreedom.wordpress.com)
- Why does the Rule of Law matters ? (stateoforder.wordpress.com)