In the previous issue, Moment asked if electronic surveillance threatens democracy. Rachel Levinson-Waldman, deputy director of the Liberty and National Security Program at the Brennan Center for Justice, said yes; Benjamin Wittes, co-director of the Harvard Law School-Brookings Project on Law and Security, said no. Here, they respond to each other’s arguments. Read the original debate here
I think Benjamin Wittes and I agree on broad strokes: there are ways electronic surveillance can and even should be used in a democracy, and there are ways it can be misused. The devil, of course, is in the details. How should these tools be limited so they are used only where necessary, regulated to ensure they are not deployed against political enemies or used to undermine the exercise of constitutionally protected rights, and subject to sufficiently robust oversight so that any misuse will come to light? Unfortunately, electronic surveillance is quite susceptible to abuse. This is especially true in the context of social media platforms, where Ben seems enthusiastic about broad law enforcement monitoring.
Ben points to a scenario that is actually quite useful for illustrating the hazards of overreaching surveillance. He argues that when it comes to school shootings, authorities are likely to miss a post saying “Off to shoot up a school now!” because they weren’t looking or they weren’t authorized to view it.
It’s not clear the data backs this up. Several years ago, my colleagues and I conducted a (non-scientific) review of publicly reported social media postings by high-profile student gunmen. We concluded that there was little about their postings that was so uniquely troubling that they would have come out through dragnet monitoring of online platforms. In the one case involving obviously disturbing online postings—by Adam Lanza, perpetrator of the Parkland shootings—viewers of the postings actually had reported them to the FBI, which was unable to determine the identity of the poster. Instead, indiscriminate monitoring would result in scrutiny of millions of disaffected teens with no aspirations to violence, requiring significant expenditures of time and personnel with little to show for it, and would likely focus disproportionately on students of color, disabled students and other underserved populations.
I think Ben’s final comment on this example is telling. He says (I assume partly tongue in cheek) that authoritarian systems don’t have the problem of lacking information on their citizens. That may well be true, but I also don’t think we aim to emulate authoritarian governments. Ultimately, though, we agree that getting the balance right is key.
Rachel Levinson-Waldman is deputy director of the Liberty and National Security Program at the Brennan Center for Justice.
In an important sense, Rachel Levinson-Waldman and I are saying the same thing: that unconstrained surveillance poses a danger to democracy, and properly constrained surveillance is a necessary tool to secure it. The challenge, of course, is that the task of constraining surveillance authorities is an iterative one, as technology and uses of it change over time. It is also the case that some authorities vary in the threat they pose depending on the malign or benign qualities of the government that wields them.
Ultimately, however, there is no escaping either the project of watching those who would do democracy harm or of constraining those who do the watching. Fail on the first count and the result is assaults on democracy like that of January 6. Fail on the second count and the result is authoritarianism.
Benjamin Wittes is co-director of the Harvard Law School-Brookings Project on Law and Security and a member of the Hoover Institution’s Task Force on National Security and Law.