Mass Surveillance, Privacy, and Freedom: A Case for Public Access to Information About Mass Government Surveillance Programs
Adam D. Moore (ed.), Privacy, Security and Accountability: Ethics, Law, and Policy, ch. 11, pp. 203-222 (London: Rowman & Littlefield International, 2015).
20 Pages Posted: 3 Feb 2016
Date Written: December 1, 2015
An imbalance in information access between a people and their government will tip the scales of power and limit the ability of the people to exercise democratic oversight and control those they have put in power to represent them. Freedom of information laws provide one way to access to government records and serve as a powerful and effective means for empowering oversight by journalists and ordinary citizens. These laws, which provide a legal mechanism for citizen-initiated reciprocal-surveillance must capture more information about the legal bases and secret surveillance programs to ensure that "adequate and effective guarantees against abuse" (Klass and Others v. Germany, 2 Eur. H.R. Rep. 214, para. 50) exist. The violation of our rights should not hinge on our awareness of government overreaching, but whether the government has in fact acted impermissibly, visibly or in secret. As such, our access to remedies (and information) should not similarly be limited solely to cases involving non-secret government action. Strict limitations on standing in cases challenging secret government surveillance activities constitute an interference with individual freedom, as the European Court of Human Rights (ECHR) has held. The stark differences in the ability of plaintiffs to claim violations of their constitutional or basic human rights in the U.S. and at the ECHR, provides a suggestive critique of the nature of the current judicial politics of surveillance and transparency in domestic U.S. courts. The unwillingness of U.S. courts to allow challenges to secret government surveillance programs on standing grounds is a failure of the judicial system to check the ability of the executive to usurp arbitrary domination over the people. It is a failure of antipower in America.
Keywords: privacy, surveillance, mass surveillance, freedom, access to information, freedom of information
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