From the National Surveillance State to the Cybersurveillance State

Abstract

This article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, embedding bureaucratized biometric cybersurveillance within the Administrative State. In ways that are largely invisible, the Cybersurveillance State constructs digital avatars for administrative governance objectives and targets digital data deemed suspicious. Consequently, constitutional violations stemming from cybersurveillance systems will be increasingly difficult to identify and challenge.