Civil Society and Cybersurveillance

25 Pages Posted: 25 Jun 2016 Last revised: 23 Jan 2018

See all articles by Andrew McCanse Wright

Andrew McCanse Wright

New York University School of Law; K&L Gates LLP

Date Written: June 24, 2016

Abstract

The entry of government cybersurveillance into the mundane daily routines of life poses a great concern. The unfolding technological revolution profoundly alters human relations to governments, business entities, civic institutions, and social associations. As the world has become more interconnected, national security threats can grow domestically, cross physical borders, or emanate from digital space itself. At the same time, government surveillance capacity expansion has been geometric. All of these developments threaten private spaces and modes that are essential to self-government.

In this essay, I argue that it would be productive to reverse prevailing thought about privacy and government surveillance. Traditional legal analysis calls on courts and policy makers to look to specific provisions of governmental charters and laws to address the permissibility of a particular government surveillance effort. Rather, courts and policy makers would benefit from assessing the freedom from surveillance required to preserve an empowered democratic citizen and work backwards to assess whether a particular government surveillance effort stifles it.

The United States was established as a liberal democratic republic. One of the essential features of the American political scheme is civil society, which presupposes “a social sphere separate from both the state and the market.” It requires apartness from the government. That separation from the government, which I will call the "civil preserve," is a feature necessary for both the basis of legitimate government (i.e., the consent of the governed) as well as the building blocks of democratic self-government (i.e., empowered citizens). Beyond the sequential approach of classic Fourth Amendment analysis, focus should include other fundamental questions informed by civil society theory. What kind of citizen do we need? What zone of autonomy is necessary to build that kind of citizen? In a more aggregate sense, what space is required to create private associations that build the political culture necessary for government by the people?

Keywords: Surveillance, Fourth Amendment, Constitutional Law, Privacy, Autonomy, Civil Society, Cybersurveillance, Big Data

Suggested Citation

Wright, Andrew McCanse, Civil Society and Cybersurveillance (June 24, 2016). 70 Arkansas Law Review 745 (2017), Available at SSRN: https://ssrn.com/abstract=2800200 or http://dx.doi.org/10.2139/ssrn.2800200

Andrew McCanse Wright (Contact Author)

New York University School of Law ( email )

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