Surveillance After the Boston Bombing

We were living in an age of surveillance before the Boston Marathon bombing, but the event and its investigation produced calls for much greater monitoring of our cities and our lives. The media narrative of the investigation, manhunt, and lockdown that followed the bombing was like something out of an action movie, with car chases, shootouts, and a dramatic televised ending. But it was like a science-fiction movie, too, featuring surveillance cameras, smartphones, GPS trackers, facial-recognition technology, thermal imagers, and even a robot. Hovering in the background, ready for the inevitable sequel, are the specters of police surveillance drones.

These technologies, especially the use of surveillance cameras to identify the suspects, seem to have helped the investigation. They have certainly intensified the debate over how much surveillance we should have as a society. Our cities were filling with surveillance cameras before the bombing, and Mayor Michael Bloomberg of New York and the legal theorist Richard Posner, among others, have called for even more monitoring. If we have nothing to hide, goes the argument, we have nothing to fear. After all, don’t we want to be safe?

While safety is important, in a free society, other values are too—like free minds, the right to dissent, and the right to personal privacy. One unexpected consequence of the bombing was that it brought to the surface the work of academics in law, sociology, and other fields studying the growth and nature of our expanding surveillance infrastructure. That work can help provide the road map we need to take advantage of the benefits of surveillance while identifying and minimizing its costs.

Whenever we talk about surveillance, we need to keep two facts in mind. First, there are different kinds of monitoring, and we need to think about them differently. Much of the debate since the Boston Marathon has dealt with stationary cameras on public streets. There’s pretty good evidence that these tools deter or displace minor crimes, although not terrorism, and that they are useful in investigations. But contrast these simple cameras with ones linked to facial recognition databases, or GPS trackers, or wiretap orders, or surveillance of a person’s computer use through their monitor and even their Webcam. Each kind of surveillance has its own benefits, limitations, and costs, and it’s important to weigh each on its own terms. For example, Boston’s existing network of surveillance cameras was enough to catch the Tsarnaev brothers, but we might decide some other city might need more cameras. But from there, it’s not a logical leap to advocate an increase in drones or computer monitoring. Those are simply different questions.

Secondly, if we want to talk about surveillance, we need to talk about both government and private monitoring. Private entities of all kinds—Internet advertisers, department stores, people on the street with smartphones—engage in surveillance of one kind or another. Companies use data bought from data brokers to assess when and where to advertise to and at what price. Governments buy or gain access to private databases. And private industry eagerly markets surveillance tools to law enforcement. So any understanding of surveillance needs to take private actors into account.

The iconic images of the Tsarnaev brothers were apparently captured by the private camera at the Lord & Taylor department store, then handed over to police. Police also obtained countless photos and videos taken by witnesses to the marathon explosions. Any assessment of surveillance has to consider the ease with which its data and technologies cross the blurry boundaries, in all directions, between public, private, and law-enforcement entities.

What, then, are the costs and dangers of surveillance? Each technology raises its own questions, but in general surveillance raises three kinds of perils—financial cost, threats to civil liberties, and the creation of power imbalances.

The vast monitoring infrastructures we have installed in our cities over the past decade have not been cheap, and a large industry exists to supply law enforcement with high-tech surveillance technology—much of it military grade at military procurement prices. Even if we decide that an increase in government surveillance is justified, we need to pay for it somehow, either by reducing other police expenditures, reducing other government expenditures (like roads or schools), or raising taxes. A British study last year noted that local governments had zealously wasted millions of pounds on security cameras, many of which had rarely, if ever, been used.

Surveillance also poses a danger to our civil liberties. That can take many forms. Monitoring of our reading, Web surfing, and private communications threatens our intellectual privacy—our ability to engage with ideas and facts on our own terms without scrutiny or interference by others. We increasingly use digital technologies to communicate, to read, and even to think, but those technologies create records of our messages, our browsing, and even (through notes, memos, calendars, etc.) our thoughts. Surveillance is justified as protecting a free society, but a society in which the government can monitor our intellectual activities without significant legal process is free in name only. Secret surveillance threatens other kinds of privacy, too. It’s one thing for a camera in the city center to record us anonymously, but it’s quite another for it to systematically identify us as we travel through town, whether by face recognition or other means. Another basic principle of political freedom is that the people know what the government is up to, a value that is defeated by shadowy webs of secret monitoring.

A final cost of surveillance is that it changes the power relationship between the watcher and the watched. Information is undoubtedly power, and the point of surveillance is to provide information. Watchers can use their information power to influence behavior. That power can be used to deter crime, but it can also be used to blackmail, as the FBI tried to do with Martin Luther King Jr. after surveillance of his personal life produced evidence of marital infidelity. It can be used to persuade, as when marketers use data about us to select products and services they think they can sell to us, at prices that are individually tailored by their profit-seeking algorithms. And surveillance can be used to sort people into categories, with all the accompanying risks of discrimination. We already use data surveillance to sort airline passengers roughly into preferred flyers, ordinary passengers, and suspicious members on watch or no-fly lists. Marketers use data to sort us into all manner of economic and social classes for the distribution of offers and other benefits. Greater surveillance gives public and private watchers alike greater ability to sort and, overtly or secretly, discriminate and exploit.

The costs of surveillance offer a response to the “nothing to hide” argument. Even if you have “nothing to hide,” you may well still care if the government is wasting money in monitoring you unnecessarily. Moreover, all of us except the most boring have secrets that aren’t criminal but that we still don’t want to share with the world. We have sex, we have naked bodies, we use the toilet, and most of us let our hair down from time to time. We should all care about being blackmailed, subconsciously persuaded, sorted, or discriminated against. Put simply, privacy matters.

It’s too simplistic to say that we need more (or even less) surveillance. We need better surveillance, where “better” takes into account the benefits and costs of particular tools, and whole existing backdrop of surveillance. At the same time, “it’s complicated” is no more satisfying an answer than “if you have nothing to hide, you have nothing to fear.” We need principles to help guide the evolution of our surveillance society, to chart a course between total surveillance and insufficient safety.

Let me suggest four such principles: First, we must recognize that surveillance is complex, and consider both the types of surveillance at issue, and the degrees to which government and private monitoring are in question. Second, we must remember that secret surveillance is illegitimate. A free society should know the tools that the government can use to watch its citizens. Third, total surveillance is illegitimate. Government monitoring, especially of intellectual activities, must remain accountable to legal checks and balances. Finally, we need to recognize that while surveillance has limited benefits when used properly, it has substantial costs in money, civil liberties, and power. We must take those harms into account as we decide what kinds of surveillance and how much are consistent with our basic commitment to a free society.

Neil M. Richards is a professor of law at Washington University in St. Louis. His recent Harvard Law Review article on “The Dangers of Surveillance” is online here.