On the Constitutional Impropriety of Micro-Surveillance
Jack Balkin links, not unreasonably, the Spitzer scandal to the War on Terror:
These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today’s techniques are made more powerful and more prevalent by lower costs of computing and data storage.
…
If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.
Of course, there ought to be another “limit,” namely a rational basis for collecting such data.
It’s one thing to suggest that there is a reasonable inference that a transaction involving over $10,000 in currency is likely, perhaps almost certain, to involve illegal activity, and that therefore the government has a rational basis to demand disclosure of all such transactions. That’s not the libertarian conclusion, but it’s not a facially absurd premise.
Demanding disclosure of all currency transactions involving over $100, however, is facially absurd. Demanding disclosure of all transactions of any kind over $100 would leapfrog over “facially absurd” and straight into Orwell. A terrorist can’t bring down a skyscraper with one $100 bill or with one prepaid $100 phone card. The fact that the government can now technologically and economically perform such micro-surveillance still does not mean that it can constitutionally perform it. “You don’t want another 9/11, do you?” is simply not enough to justify turning over every ATM, credit card, debit card and EFT transaction, no matter how small, to the government.
Even conceding (which libertarians ought never do anyway) that some (indeed most) laws are subject to mere rational basis review does not mean that a law that fails rational basis review (i.e., an irrational law) should not be decried — and judicially invalidated — as such.
Similar Posts:
- Domestic Spying Update
- On Private Fingerprinting
- Would Mass Government Data-Mining Work?
- Troubled Consumer Data Firm to Offer Self-Access
- On Posner’s “Data-Mining Exception” to the Fourth Amendment
Filed under: Uncategorized
Of course the vagueness and secrecy and selective enforcement of this unconstitutional structuring regulation or law is necessary, in order to conceal our methods from the enemy, just like torture and wiretapping and data mining. Thus we have no rule of law, only authority without accountability and no individual responsibility. Quite the same as when I lived in China, though few terrorists there and the police were much better at their job of promoting "social harmony" instead of arbitrary unjust laws. However, the good news is that this will all end when the war on terror ends.
Cost is breakdown of normal economy and life. Wal-Mart for short time issued prepaid Visa debit cards, but Patriot Act requirements too complicated for customers. A misguided woman anonymously reports Australian-born harpsicordist to Boston police as terrorist, shutting down subway system. Neither of these regulatory efforts have increased safety even one bit, but instead impeded commerce just as much as a terrorist attack. We all know about TSA's "security theater".
It's Cheney's "one-per cent chance" that overrules common sense and any rational policy. The structuring law starts with something like terrorism, then then goes to other imagined "crimes" then suspicious behavior even without crime, no warrant or probable cause needed. Real ID please!
There is a difference between Big Brother (Orwell, fear) and the Castle (Kafka, anxiety). We don't know which, so it's Kafka now.
There needs to be some sunset provision for laws, some way of holding police and government and politicians accountable, democracy doesn't work, and some people certainly unjustly profit.