Has Code Become Law? The Liberty Implications of NSA Technological CapabilityPosted: June 14, 2013
The furor sparked by disclosure of secret U.S. government surveillance programs reminded me of the famous argument about the relationship of liberty and cyberspace—Harvard Professor Lawrence Lessig’s assertion that, in cyberspace, “code is law.” By this, Lessig meant that the software code that makes the Internet and related technologies run empowers and restricts behavior and, thus, regulates activities in cyberspace. Lessig warned that the regulatory effects of code could displace constitutional traditions and threaten political liberty unless deliberative democracy controls the power that software code creates.
The United States is now debating the legality of power the U.S. government claims it possesses in cyberspace—a power that includes collecting daily the records of phone calls made by millions of Americans. Defenders of the surveillance programs argue that this power, and its secret exercise, is necessary to prevent terrorist attacks. However, arguments that covert government activities are vital for national security are not new; they are as old as politics and, in the United States, a traditional source of skepticism in a Republic self-governed by a free people. The argument from necessity has been fountainhead of abuses in the past, but it has never before been the justification for the mass collection of information on the daily communications of millions of Americans not suspected of any wrongdoing, let alone involvement with terrorism. So what explains why we hear this justification now?
What is new is the technological capability of the U.S. government to collect, mine, and use that information in the name of national security. Technological innovation permits the private sector (think Facebook and Google) and the government—and the NSA in particular—to develop data storage and data-mining capabilities that permit the acquisition and analysis of almost unimaginable amounts and kinds of digital information. The fundamental enabler of this unprecedented capability is software code. Here, code is power.
Prior to development of this code-based capability, it was not feasible to collect and analyze records on the daily communications of millions of Americans in a timely or useful manner—making arguments for the national security necessity of doing so pointless. But, now, the U.S. government can undertake mass surveillance and, apparently, produce actionable intelligence from Americans’ local phone calls that thwarts terrorist attacks. Here, code creates a vital national security interest where none existed before.
In the American tradition, the Constitution and the Bill of Rights provide the sword and the shield against government attempts to exercise power against Americans for national security reasons, and opponents of the secret surveillance of Americans’ telephone calls have turned again to this arsenal. However, we have to ask whether the technological capability to undertake surveillance on a scale never before possible has changed interpretations of the law the government used, namely Section 215 of the PATRIOT Act. Many have re-read Section 215 in light of recent disclosures and have been unsettled to learn it justifies the daily collection of data about the communications of law-abiding Americans because the U.S. government is investigating international terrorism.
Are we now interpreting laws, including constitutional principles, differently because we can, with software-enabled technologies, do things that were impossible before and that our history suggests we should resist, especially when coupled with the argument of national security need? If so, is software code defining the law and the scope of liberty?
Just as Americans have often been wary of arguments that the exercise of expansive, secret government power is justified by national security necessity, the unfolding debate in the United States should also interrogate arguments that the government must exercise such power because, now, it can.