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126 Harv. L. Rev. 1934 (2012-2013)
The Dangers of Surveillance

handle is hein.journals/hlr126 and id is 1964 raw text is: THE DANGERS OF SURVEILLANCE Neil M. Richards* From the Fourth Amendment to George Orwell's Nineteen Eighty- Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don't really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with privacy, we lack an under- standing of what privacy means in this context and why it matters. We've been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states. But these warnings are no longer science fiction. The digital tech- nologies that have revolutionized our daily lives have also created mi- nutely detailed records of those lives. In an age of terror, our govern- ment has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases,1 and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercept- ing and storing much of the world's Internet communications for de- cryption and analysis.2 Although we have laws that protect us against government surveil- lance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only ma- jor case to hold to the contrary, in Clapper v. Amnesty International * Professor of Law, Washington University School of Law. For helpful comments on prior drafts, I thank Jim Bohman, John Inazu, Jonathan King, Wendy Niece Richards, and participants in the Washington University Political Theory Workshop. Special thanks are also due to my co- participants at the Harvard Law Review Symposium on Privacy and Technology - Professors Julie Cohen, Paul Schwartz, Dan Solove, and Lior Strahilevitz - and my generous commenta- tors, Danielle Citron, David Gray, and Orin Kerr. Thanks also to my research assistants, Matthew Cin and Ananth Iyengar, and my faculty assistant, Rachel Mance. I See, e.g., ROBERT O'HARROW, JR., No PLACE TO HIDE 1-4 (2005). 2 James Bamford, The Black Box, WIRED, Apr. 2012, at 78, 8o. 1934

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